1
EXHIBIT 1.1
Much Shelist Freed, et al.,
Draft of December 18, 1996
[SUBJECT TO CLIENT REVIEW AND APPROVAL]
WINTRUST FINANCIAL CORPORATION
(an Illinois corporation)
1,200,000 SHARES OF COMMON STOCK*
AGENCY AGREEMENT
January ____, 1997
EVEREN Securities, Inc.
00 Xxxx Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000-1994
Gentlemen:
Wintrust Financial Corporation, an Illinois corporation (the "COMPANY"),
hereby confirms its agreement with EVEREN Securities, Inc. ("EVEREN
SECURITIES," "AGENT" or "YOU"), as follows:
Introductory
The Company is offering for sale, on a best efforts basis, up to 1,200,000
newly issued shares (the "SHARES") of Common Stock, without par value (the
"COMMON STOCK"), at a price of $______ per share. The Shares are being offered
on a priority basis first to shareholders of the Company as of __________ ___,
1996 (the "RECORD DATE SHAREHOLDERS") and to customers of the Banks (as defined
below) as of ____________ ___, 1996 ("RECORD DATE CUSTOMERS") in a subscription
offering (the "SUBSCRIPTION OFFERING"). The highest priority will be given in
the Subscription Offering to those Record Date Shareholders who place purchase
orders for Shares prior to Noon, Central Time, on _____________ __, 1997. To
the extent Shares remain available for sale after satisfying purchase orders in
the Subscription Offering, the Company is offering Shares for sale to the
general public in a direct community offering (the "COMMUNITY OFFERING") with
preference given to residents of the communities in which the Banks have
offices. The Subscription Offering and Community Offering are collectively
referred to herein as the "SUBSCRIPTION AND COMMUNITY OFFERING." Depending on
market conditions, the Shares may be offered for sale in the Community Offering
to the general public on a "best efforts" basis by a selling group of
broker-dealers managed by the Agent. It is acknowledged that the Subscription
and Community Offering will terminate at Noon, Central Time, on _____________,
1997 (the "EXPIRATION DATE") unless extended by the Company. It is
further acknowledged that the Company may, in its sole discretion,
______________________
* The Company may, in its sole discretion, increase the number of Shares sold
by up to 180,000 Shares to cover over-subscriptions in the Subscription and
Community Offering.
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Everen Securities, Inc.
January __, 1997
Page 2
regardless of any priorities or preferences, accept or reject orders in whole
or in part in the Subscription and Community Offering. Once made,
subscriptions are irrevocable. Completion of the Subscription and Community
Offering is not conditioned upon the sale of any minimum number of Shares. The
Company may, in its sole discretion, increase the number of Shares sold by up
to 180,000 Shares to cover over-subscriptions in the Subscription and Community
Offering. In addition, depending on market conditions, upon completion of the
Subscription and Community Offering, any Shares then remaining available for
sale may be offered to the general public in an underwritten public offering
("PUBLIC OFFERING") to be managed by the Agent. The Subscription and Community
Offering and the Public Offering are referred to collectively herein as the
"OFFERING."
The Company has filed with the Securities and Exchange Commission (the
"COMMISSION") a Registration Statement on Form S-1 (File No. 333-____) (the
"REGISTRATION STATEMENT") containing a Prospectus relating to the Offering (the
"PROSPECTUS") for the registration of the Shares under the Securities Act of
1933, as amended (the "1933 ACT"), and has filed such amendments thereto, if
any, and such amended Prospectuses as may have been required as of the date
hereof. The Prospectus, as amended, on file with the Commission at the time
the Registration Statement initially becomes effective is hereinafter called
the "PROSPECTUS," except that if the Company files a Prospectus pursuant to
Rule 424 of the rules and regulations of the Commission under the 1933 Act (the
"1933 ACT REGULATIONS") which differs from the Prospectus on file at the time
of the Registration Statement initially becomes effective, or if the Company
files an amendment to the Registration Statement subsequent to the time it
initially becomes effective and such amendment contains a Prospectus which
differs from the Prospectus on file at the time the Registration Statement
initially became effective, the term "PROSPECTUS" shall refer to the Prospectus
filed pursuant to Rule 424 or contained in such amendment to the Registration
Statement from and after the time said Prospectus is filed with or transmitted
to the Commission for filing.
Any terms not expressly defined herein shall have the same definition and
meaning as is set forth in the Prospectus.
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Page 3
SECTION 1. APPOINTMENT OF AGENT; COMPENSATION TO THE AGENT
Subject to the terms and conditions herein set forth, the Company hereby
appoints EVEREN Securities as its exclusive marketing agent to consult with and
advise the Company, and, on a "best efforts" basis, to assist the Company with
the solicitations of purchase orders for the Shares in connection with the
Company's offering of the Shares in the Subscription and Community Offering.
On the basis of the representations, warranties and agreements herein
contained, and subject to the terms and conditions herein set forth, EVEREN
Securities accepts such appointment and agrees to consult with and advise the
Company as to the matters set forth in Exhibit A attached hereto and agrees to
use its best efforts to solicit purchase orders for Shares in accordance with
this Agreement; provided, however, that the Agent shall not be responsible for
obtaining purchase orders for any specific number of Shares, shall not be
required to purchase any Shares and shall not be obligated to take any action
which is inconsistent with all applicable laws, regulations, decisions or
orders or decrees, directives, agreements or memoranda of or with any court,
regulatory body, administrative agency, or other government body. Shares will
be offered hereunder by means of Stock Order Forms and Certification Forms (the
"ORDER FORMS"), the form of which is set forth as Exhibit 99.1 to the
Registration Statement. The Company and EVEREN Securities may jointly
determine that EVEREN Securities may also assemble and manage a selling group
of broker-dealers, all of which will be members of the National Association of
Securities Dealers, Inc. (the "NASD") to participate in the solicitation of
purchase orders for the Shares on a "best efforts" basis under a Selected
Dealer's Agreement (the "SELECTED DEALER'S AGREEMENT"), the form of which is
set forth as Exhibit B to this Agreement. Following the Subscription and
Community Offering, any Shares then remaining available for sale may be offered
to the general public in a "firm commitment" Public Offering to be managed by
the Agent. Completion of the Public Offering will be subject to the execution
of an underwriting agreement between the Company and the Agent. Whether a
Public Offering occurs and an underwriting agreement is executed with the Agent
will depend upon, among other factors, on the negotiation of a mutually
acceptable underwriting agreement, market conditions then prevailing, the
aggregate number of Shares not purchased in the Subscription and Community
Offering, and the then-current financial condition of the Company. The number
of Shares to be sold in the Public Offering, if any, will be determined by the
Agent and the Company.
In addition to the reimbursement of expenses of the Agent specified in
Section 6 hereof and any amounts which may become payable to the Agent under
Sections 7 and 8 hereof, the Company will pay the following fees to the Agent
as compensation for the Agent's services under this Agreement:
(a) A management fee equal to 2.5% of the aggregate Price to Public of the
Shares (as set forth on the cover page of the Prospectus, the "PRICE TO
PUBLIC") sold by the Company in the Subscription and Community Offerings
without the use of commissioned registered representatives.
(b) In the event the Company and the Agent elect to employ selected
broker-dealers (including the Agent) to solicit purchase orders in the
Community Offering using the assistance of commissioned registered
representatives, the Company will pay the Agent 4.0% of the aggregate Price to
Public of the Shares sold by the Company in such manner of which 2.5% would
represent the management fee of the Agent and 1.5% would be paid by the Agent
to the selected broker-dealer. No commissions will be paid to any
broker-dealer except the Agent unless a broker-dealer enters into a Selected
Dealer's Agreement with the Agent.
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(c) In the event the Company and the Agent determine to commence a Public
Offering, the terms thereof would be set forth in a mutually satisfactory
underwriting agreement executed between them. The nature of the underwriting
agreement would be such that the Agent would offer a specified number of Shares
to the general public at the Price to Public set forth on the cover page of the
Prospectus and purchase such Shares from the Company at such price less an
underwriting discount currently estimated to be 6.6%. In the underwriting
agreement, the Company would also grant the Agent an option, exercisable within
30 days of the completion of the Public Offering, to purchase up to an
additional 15% of the Shares offered in the Public Offering to cover
over-allotments, if any, at the same price as would be paid by the Agent for
the other Shares purchased pursuant to the underwriting agreement.
The compensation specified above shall be payable to the Agent in same day
funds on the Closing Date (as defined in Section 2 below). The Company agrees
to reimburse the Agent for the costs and expenses specified in Section 6
hereof, to the extent such costs and expenses are incurred by the Agent,
provided that such reimbursement will not exceed $75,000 without the Company's
prior consent.
The appointment of the Agent hereunder shall terminate upon completion of
the Subscription and Community Offering.
SECTION 2. CLOSING DATE; RELEASE OF FUNDS AND DELIVERY OF CERTIFICATES
Subject to the terms and conditions of this Agreement, the Company agrees
to issue or have issued the Shares sold in the Subscription and Community
Offering and to release for delivery certificates for such Shares on the
Closing Date (as hereinafter defined) against payment therefor by release of
funds from the non-interest bearing escrow account referred to in Section 5(r)
hereof and by the authorized withdrawal of funds from deposit accounts
designated by the Company. provided, however, that no such funds shall be
released to the Company or withdrawn until the conditions specified in Section
9 hereof shall have been complied with to the reasonable satisfaction of the
Agent and its counsel. Such release, withdrawal and payment shall be made at
the Closing Date, at 10:00 a.m. Central time, on a business day and at a Bank
designated by the Company, on at least two business days' prior notice to the
Company and no more than ten business days after the later of the expiration of
the Subscription and Community Offering, as extended, or such other time or
place as shall be agreed upon by the Agent and the Company. Certificates for
Shares shall be delivered directly to the purchasers thereof or in accordance
with their directions. The hour and date upon which the Company shall release
or deliver the Shares sold in the Subscription and Community Offering, in
accordance with terms hereof, are herein called the "CLOSING DATE."
SECTION 2A. DELIVERY OF FUNDS RECEIVED BY AGENT TO THE COMPANY
Any funds received by EVEREN Securities or other broker-dealers under a
Selected Dealer's Agreement in the Community Offering shall be transmitted
(either by U.S. Mail or similar type of transmittal) to the Bank designated by
the Company by 12:00 Noon, Central time, of the following business day for
deposit in the non-interest bearing escrow account referred to in Section 5(r)
hereof. In addition, to the extent that EVEREN Securities desires to solicit
indications of interest from its customers, EVEREN Securities will subsequently
(i) contact any customer indicating interest to confirm the interest and give
instructions to execute and return an order form or to receive authorization to
execute the Order Form on a customer's behalf, (ii) mail acknowledgments of
receipt
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of orders to each customer confirming interest on the business day following
such confirmation, (iii) debit accounts of such customers on the third business
day (the "DEBIT DATE") following receipt of the confirmation referred to in
(i), and (iv) forward completed order forms together with such funds to the
designated Bank on or before 12:00 Noon, Central time on the next business day
following the Debit Date for deposit in the account referred to in Section 5(r)
hereof.
SECTION 3. SUBSCRIPTION AND COMMUNITY OFFERING; PROSPECTUS
The anticipated maximum number of Shares to be offered in the Subscription
and Community Offering and the Price to Public per Share are as set forth on
the cover page of the Prospectus. The Company may, in its sole discretion,
increase the number of Shares sold by up to 180,000 Shares to cover
over-subscriptions in the Subscription and Community Offering. The total
number of Shares may be increased or decreased from the maximum by the Company
with the prior consent of the Agent, subject to limitations set forth in the
Prospectus.
SECTION 4. REPRESENTATIONS AND WARRANTIES
The Company represents and warrants to the Agent as follows:
(a) The Registration Statement was declared effective by the Commission on
____________ __, 1997. At the time the Registration Statement became
effective, the Registration Statement complied in all material respects with
the requirements of the 1933 Act and the 1933 Act Regulations and the
Registration Statement, any preliminary or final Prospectus, any Blue Sky
Application and any Sales Document (as such terms are defined previously herein
or in Section 7 hereof) authorized by the Company for use in connection with
the Subscription and Community Offering did not contain an untrue statement of
a material fact or omit to state a material fact required to be stated therein
or necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading, and at the time any Prospectus was
filed with or mailed to the Commission for filing the Registration Statement,
any preliminary or final Prospectus, any Blue Sky Application or any Sales
Document (as such terms are defined previously herein or in Section 7 hereof)
authorized by the Company for use in connection with the Subscription and
Community Offering will not contain an untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements
therein, in light of the circumstances under which they are made, not
misleading, provided, however, that the representations and warranties in this
Section 4(a) shall not apply to statements in or omissions from such
Registration Statement, Prospectus or Sales Document made in reliance upon and
in conformity with information furnished to the Company by the Agent expressly
regarding the Agent for use in the Prospectus or Sales Document, which
information solely consists of the disclosure included in the Prospectus in the
second paragraph under the caption "Terms of the Offering -- Plan of
Distribution for the Subscription, Community and Public Offerings."
(b) The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Illinois with full
corporate power and authority to own or lease its properties and conduct its
business as described in the Prospectus, and has been duly qualified to do
business as a foreign corporation under the corporation law of, and is in good
standing as such in, every jurisdiction where ownership or leasing of property,
or the conduct of its business requires such qualification, except where the
failure to so qualify would not have a material adverse effect on the
condition, financial or otherwise, or the business, property, operations or
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income of the Company and its Subsidiaries (as defined below) on a consolidated
basis.
(c) Except as described in the Prospectus, the Company does not own,
directly or indirectly, equity securities or any equity interest in any
business enterprises other than Lake Forest Bancorp, Inc. an Illinois
corporation ("LAKE FOREST"), Hinsdale Bancorp, Inc., an Illinois corporation
("HINSDALE"), Libertyville Bancorp, Inc., an Illinois corporation
("LIBERTYVILLE"), Wolfhoya Investments, Inc., an Illinois corporation
("WOLFHOYA"), and Xxxxxxxx Capital Corporation, an Illinois corporation
("XXXXXXXX") (together, the "HOLDING COMPANY SUBSIDIARIES"), and North Shore
Community Bank and Trust Company, an Illinois banking corporation ("NORTH SHORE
BANK"), Lake Forest Bank and Trust Company, an Illinois banking corporation
("LAKE FOREST BANK"), Hinsdale Bank and Trust Company, an Illinois banking
corporation ("HINSDALE BANK"), Libertyville Bank and Trust Company, an Illinois
banking corporation ("LIBERTYVILLE BANK"), and Barrington Bank and Trust
Company, N.A., a national banking association ("BARRINGTON BANK") (together,
the "BANKS") and First Premium Services, Inc., an Illinois corporation ("FIRST
PREMIUM"). (The Holding Company subsidiaries, the Banks and First Premium are
referred to together herein as the "SUBSIDIARIES" and the Banks and First
Premium are referred to together herein as the "SIGNIFICANT SUBSIDIARIES").
Each Subsidiary has been duly organized and is validly existing as a
corporation, an Illinois banking corporation or national banking association,
as the case may be, in good standing under the laws of the jurisdiction of its
organization or with the Office of the Illinois Commissioner of Banks and Real
Estate (the "ILLINOIS COMMISSIONER") or the Office of Comptroller of the
Currency (the "OCC"), as the case may be, with full power and authority
(corporate and other) to own or lease its properties and conduct its business
as described in the Prospectus, and each is duly qualified to do business as a
foreign corporation in good standing in all other jurisdictions in which the
nature of its business or the character or location of its properties requires
such qualification, except where the failure to so qualify would not have a
material adverse effect on the condition, financial or otherwise, or the
business, property, operations or income of the Company and its Subsidiaries on
a consolidated basis and each of the Significant Subsidiaries considered
separately. The activities of the Company and the Subsidiaries are permitted
under applicable federal and state banking laws and regulations.
(d) All the outstanding shares of capital stock of each Subsidiary have
been duly authorized and validly issued and are fully paid and nonassessable.
All of the outstanding shares of the Subsidiaries are owned of record and
beneficially by the Company, directly or through Holding Company Subsidiaries,
and, except as described in the Prospectus, free and clear of all liens,
security interests, charges, claims, encumbrances or restrictions on transfer
or rights of others, except for restrictions on transfer set forth in the 1933
Act or under applicable state securities laws.
(e) KPMG Peat Marwick LLP, the firm which has issued its report on certain
financial statements included in the Registration Statement and the Prospectus,
are independent certified public accountants within the meaning of the Code of
Professional Conduct of the American Institute of Certified Public Accountants
and are independent accountants as required by the 1933 Act and the 1933 Act
Regulations.
(f) This Agreement has been duly and validly authorized, executed and
delivered by the Company and constitutes a valid and binding agreement of the
Company, enforceable against the Company in accordance with its terms except to
the extent limited by bankruptcy, reorganization, insolvency, moratorium and
other laws of general application relating to or affecting the enforcement of
creditors' rights and by general equitable principles and except as rights to
indemnity hereunder may be limited by applicable securities laws. The Company
has full power and lawful authority to
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issue and sell the Shares to be sold by it hereunder on the terms and
conditions set forth herein, all necessary corporate proceedings therefor have
been duly and validly taken, and no consent, approval, authorization or other
order of any governmental authority is required in connection with such
authorization, execution and delivery or with the authorization, issue and sale
of the Shares, except such as may be required under the 1933 Act or state
securities laws.
(g) The Shares have been duly and validly authorized and, when issued and
delivered pursuant to this Agreement, will be duly and validly issued, fully
paid and nonassessable. The Shares are not subject to preemptive rights of any
security holder of the Company.
(h) The consummation of the transactions herein contemplated and the
fulfillment of the terms of this Agreement will not conflict in any material
respect with or result in a material breach of any of the terms or provisions
of, or constitute a material default under, or result in the creation or
imposition of any lien, charge or encumbrance upon any of the property or
assets of the Company or any Subsidiary pursuant to the terms of any indenture,
mortgage, deed of trust, agreement for money borrowed or any other material
agreement or instrument to which the Company or any Subsidiary is a party, or
by which the Company or any Subsidiary may be bound, or to which any of the
property or assets of the Company or Subsidiary are subject, nor will such
action result in any violation of the provisions of the charter or the bylaws,
as amended, of the Company or any Subsidiary, or any statute or any order, rule
or regulation applicable to the Company or any Subsidiary of any court or any
regulatory authority or other governmental body having jurisdiction over the
Company or any Subsidiary.
(i) The authorized, issued and outstanding capital stock of the Company is
as set forth in the Prospectus under "Capitalization"; the shares of issued and
outstanding capital stock of the Company set forth thereunder have been duly
authorized, validly issued, are fully paid and nonassessable and, to the
knowledge of the Company, were issued in compliance with all applicable
securities laws; and the capital stock conforms in all material respects to all
statements relating thereto contained in the Registration Statement and the
Prospectus. Except as disclosed in the Prospectus, no options, warrants or
other rights or agreements, written or oral, to purchase or otherwise acquire
any authorized but unissued shares of Common Stock or other equity interests of
the Company or any security convertible into shares of Common Stock or other
equity interests of the Company are outstanding or reserved for issuance.
(j) The Company and each Subsidiary has good and marketable title to all
properties and assets described in the Prospectus as owned by it, free and
clear of all liens, charges, encumbrances or restrictions, except such as are
described or referred to in the Prospectus or are not, individually or in the
aggregate, material in relation to the business of the Company and its
Subsidiaries on a consolidated basis and each of the Significant Subsidiaries
considered separately; all of the leases and subleases under which the Company
or any Subsidiary is the lessor or sublessor of properties or assets, or under
which the Company or any Subsidiary holds properties or assets as lessee or
sublessee, as disclosed in the Prospectus, which are material to the business
of the Company and its Subsidiaries on a consolidated basis, and each of the
Significant Subsidiaries considered separately, are in full force and effect,
and neither the Company nor any Subsidiary is in default in respect of any of
the material terms or provisions of any of such leases or subleases, and no
claim has been asserted by anyone adverse to the Company's or any Subsidiary's
rights as lessor, sublessor, lessee or sublessee under any of the leases or
subleases mentioned above, or affecting or questioning the Company's or any
Subsidiary's right to the continued
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possession of the leased or subleased premises or assets under any such lease
or sublease; and each of the Company and each Subsidiary owns or leases all
such properties as are necessary to its operations as now conducted and, except
as otherwise disclosed in the Prospectus, as proposed to be conducted as set
forth in the Prospectus.
(k) The combined and consolidated financial statements of the Company,
together with related schedules and notes, set forth in the Registration
Statement and the Prospectus, fairly present the financial position and results
of operations of the Company on the basis stated in the Registration Statement,
at the respective dates and for the respective periods to which they apply.
Such statements and related schedules and notes are accurate, complete and
correct, comply as to form in all material respects with all applicable
accounting requirements, including the 1933 Act Regulations, have been prepared
in accordance with generally accepted accounting principles ("GAAP"), which
were consistently applied throughout the periods involved, except as otherwise
disclosed therein, and are consistent in all material respects with the most
recent financial statements and other reports filed by the Company with the
Federal Reserve Board (the "FRB"), except for inconsistencies attributable
solely to differences between GAAP and regulatory accounting principles. Since
the date of the balance sheets included in the Registration Statement, there
has been no material change in the financial condition of the Company. The
summaries of such financial statements and other financial, statistical and pro
forma information and related notes set forth in the Registration Statement and
the Prospectus are (i) accurate and correct and fairly present the information
purported to be shown thereby at the dates and for the periods indicated on a
basis consistent with the audited financial statements of the Company and (ii)
in compliance in all material respects with the requirements of the 1933 Act
and the 1933 Act Regulations. All pro forma adjustments described therein
shall have been properly applied on the basis described therein and have been
prepared in accordance with the applicable requirements of the 1933 Act and the
1933 Act Regulations. Any allowance for loan losses by the Company is adequate
to cover anticipated losses. The carrying value of any real estate owned by
the Company does not exceed the current estimated market value of such real
estate owned nor does it exceed the original loan amount secured by such real
estate owned plus costs of foreclosure and improvements (as permissible to be
capitalized under GAAP) made to such real estate owned by the Company.
(l) Subsequent to the respective dates as of which information is given in
the Registration Statement and the Prospectus, and except as may otherwise be
stated therein: (i) there has not been any material change in the condition,
financial or otherwise, or earnings, properties or business affairs of the
Company and its Subsidiaries on a consolidated basis or each of the Significant
Subsidiaries considered separately; (ii) there has not been any change in the
capital stock, or any material increase in the long-term debt, of the Company
and its Subsidiaries on a consolidated basis or each of the Significant
Subsidiaries considered separately, nor has any such entity issued any
securities or incurred any liability or obligation for borrowing other than in
the ordinary course of business, consistent with past practices, or issued any
options, warrants or rights to purchase its capital stock; (iii) there have not
been any material transactions entered into by the Company or any Subsidiary,
except those transactions entered into in the ordinary course of business,
consistent with past practices; (iv) there has not been any material increase
in the aggregate dollar amount of the Significant Subsidiaries' criticized
assets, loans more than 90 days past due or real estate owned, or any material
decrease in the surplus and reserves or total assets of the Significant
Subsidiaries; (v) there has not been any material adverse change in the
aggregate amount of the Banks' deposits; (vi) there has not been more than a
$_________ million increase in the aggregate amount of the aggregate borrowings
of the Company and the Subsidiaries, on a
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consolidated basis; (vii) there has not been more than a $___________ million
increase in the aggregate amount of fixed-rate loans and investment securities
with a remaining term of maturity in excess of five years of the Company and
the Subsidiaries, on a consolidated basis; and (viii) there has been no
material adverse change in the insurance coverage of the Company or any
Subsidiary, including, without limitation, cancellation or other termination of
any fidelity bond or any other type of insurance coverage. Neither the Company
nor any Subsidiary has any material liability of any kind, contingent or
otherwise, except as set forth in the Prospectus. The capitalization,
liabilities, assets, properties and business of the Company and the
Subsidiaries conform in all material respects to the descriptions thereof
contained in the Prospectus.
(m) Except as disclosed in the Registration Statement and Prospectus,
there is not now pending or, to the knowledge of the Company, threatened, any
action, suit or proceeding to which the Company or any Subsidiary is a party,
including, without limitation, any action, suit or proceeding relating to
discrimination or environmental matters, before or by any court or governmental
agency or body, which might result in any material adverse change in the
condition (financial or other), business or prospects of the Company and its
Subsidiaries on a consolidated basis and each of the Significant Subsidiaries
considered separately, or might materially and adversely affect the properties
or assets thereof, nor is the Company aware of any facts which would form the
basis for the assertion of any material claim or liability that are not
disclosed in the Registration Statement and Prospectus; and no labor
disturbance by the employees of the Company or any Subsidiary exists or is
imminent which might be expected to materially and adversely affect the conduct
of the business, property, operations, financial condition or earnings of the
Company and its Subsidiaries on a consolidated basis and each of the
Significant Subsidiaries considered separately.
(n) The Company and the Subsidiaries have filed all necessary federal,
state, local and foreign income and franchise tax returns and have paid, or are
contesting in good faith, all taxes shown as due thereon; and the Company has
no knowledge of any tax deficiency which has been or might be asserted against
the Company or any Subsidiary, which would materially and adversely affect the
business or operations of the Company and the Subsidiaries on a consolidated
basis.
(o) All contracts and other documents of the Company or any of the
Subsidiaries which are, under the 1933 Act Regulations, required to be filed as
exhibits to the Registration Statement have been so filed.
(p) The Company and each Subsidiary are in possession of all necessary
licenses, permits, consents, certificates, orders, trademarks, patent rights,
copyright protection and other governmental authorizations currently required
for the conduct of their respective businesses, except where failure to obtain
such licenses, permits, consents, certificates, orders, trademarks, patent
rights, copyright protection or governmental authorizations would not have a
material adverse impact on the business or operations of the Company or the
Subsidiary, as the case may be, and all such licenses, permits, consents,
certificates, orders, trademarks, patent rights, copyright protection or
governmental authorizations are in full force and effect, and the Company and
each Subsidiary are in all material respects complying therewith; the
expiration of any such licenses, permits, consents, certificates, orders,
trademarks, patent rights, copyright protection and other governmental
authorizations would not materially affect their operations; and none of the
products, activities or businesses of the Company or any Subsidiary is in
violation of, or causes the Company or any Subsidiary to violate, any material
law, rule, regulation or order of the United States, any state, county or
locality, or any agency or body of the United States or of any state, county or
locality.
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Without limiting the generality of the foregoing, the Company and the Holding
Company Subsidiaries have all necessary approvals of the FRB and the OCC to own
the stock of the Subsidiaries, Barrington Bank has a valid charter from the OCC
and each of the other Banks has a valid charter from the Illinois Commissioner.
(q) Neither the Company nor any Subsidiary is in violation, breach or
default of or under its charter or bylaws or any material bond, debenture, note
or other evidence of indebtedness or any material contract, agency agreement,
indenture, mortgage, loan agreement, lease, joint venture or other material
agreement or instrument to which the Company or any Subsidiary is a party or by
which it or any of its properties may be bound, or is in material violation of
any federal, foreign, state or local law, order, rule, regulation, writ,
injunction or decree of any government, governmental instrumentality or court,
which violation would have a materially adverse effect on the business of the
Company and the Subsidiaries on a consolidated basis.
(r) Neither the Company nor any Subsidiary, nor any of their officers and
directors in their role as such, has at any time (i) made any unlawful
contributions to any candidate for political office, or failed to disclose
fully any such contributions in violation of applicable law; (ii) made any
payment to any state, federal or foreign governmental officer or official, or
other person charged with similar public or quasi-public duties, other than
payments required or allowed by applicable law; (iii) used any corporate funds
for any unlawful contribution, gift, entertainment or other unlawful expense
relating to political activity; (iv) made any direct or indirect unlawful
payment to any foreign or domestic government official or employee from
corporate funds; (v) violated or is in violation of any provision of the
Foreign Corrupt Practices Act of 1977, as amended; (vi) made any bribe, rebate,
payoff, influence payment, kickback or other unlawful payment; or (vii) engaged
in any transaction, maintained any bank account or used any corporate funds
except for transactions, bank accounts and funds which have been and are
reflected in the normally maintained books and records of the Company or the
Subsidiaries; and neither the Company nor any Subsidiary has reimbursed or
repaid, directly or indirectly, any officer or director for any such unlawful
or improper contribution or payment.
(s) The Company and the Subsidiaries make and keep accurate books and
records reflecting their respective assets and maintain internal accounting
controls which provide reasonable assurance that (i) transactions are executed
with management's authorization (ii) transactions are recorded as necessary to
permit preparation of the Company's consolidated financial statements and to
maintain accountability for the assets of the Company and the Subsidiaries;
(iii) access to the assets of the Company and the Subsidiaries is permitted
only in accordance with management's authorization; and (iv) the reported
accountability of the assets of the Company and the Subsidiaries is compared
with existing assets at reasonable intervals.
(t) The deposit accounts of the Banks are insured by the Federal Deposit
Insurance Corporation (the "FDIC") to the fullest extent provided by law, and
no proceeding for the termination or revocation of such insurance is pending or
threatened.
(u) The Company and the Subsidiaries are not subject to any directive from
the Commission, the OCC, the FDIC, the FRB, the Illinois Commissioner or any
other governmental authority to make any material change in the method of
conducting their respective businesses and no such directive is pending or
threatened by such authorities. The Company knows of no unlawful storage,
treatment or disposal of waste by the Company or any Subsidiary (or any of
their predecessors-in-interest) at any of the facilities owned thereby, except
for such violations which
11
Everen Securities, Inc.
January __, 1997
Page 11
would not have a material adverse effect on the condition (financial or other),
business or prospects of the Company and its Subsidiaries on a consolidated
basis and each of the Significant Subsidiaries considered separately; the
Company knows of no material spill, discharge, leak, emission, ejection,
escape, dumping or release of any kind onto the properties owned by the Company
or into the environment surrounding those properties, of any toxic or hazardous
substances as defined under any federal, state or local regulations, laws or
statutes, except for those releases permissible under such regulations, laws or
statutes or otherwise allowable under applicable permits and except for such
releases which would not have a material adverse effect on the condition
(financial or other), business or prospects of the Company and its Subsidiaries
on a consolidated basis and each of the Significant Subsidiaries considered
separately.
(v) The Company knows of no outstanding claims for finder's, origination
or underwriting fees with respect to the sale of the Shares.
(w) The Company has delivered to the Agent a written agreement from the
Company and from each director, executive officer and shareholder beneficially
owning more than 5% of the outstanding Common Stock of the Company to the
effect that the Company or such officer or director will not, without the
Agent's prior written consent, sell or otherwise dispose of or transfer, or
offer, agree or contract to sell or otherwise dispose of or transfer, any
shares or rights to purchase shares of the Common Stock or any interest therein
for 180 days after the date of the Prospectus.
(x) The Company and each Subsidiary maintain insurance of the types and in
the amounts required by the rules and regulations of the FRB and the Illinois
Commissioner and consistent with insurance coverage maintained by similar
companies and businesses, all of which insurance is in full force and effect.
(y) All material transactions between the Company and the Subsidiaries and
the officers, directors and major shareholders (i.e., those shareholders who
beneficially own more than 5% of any class of the Company's voting securities)
of the Company and the Subsidiaries have been accurately disclosed in the
Registration Statement and the Prospectus, and, except as noted therein, the
terms of each such transaction are fair to the Company and no less favorable to
the Company than the terms that could have been obtained from unrelated
parties.
(z) The Company will not take, directly or indirectly, any action (and
does not know of any action taken by its directors, officers, shareholders or
others) designed to or which has constituted or which might reasonably be
expected to cause or result in, under the Securities Exchange Act of 1934, as
amended (the "1934 ACT"), stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of the Shares.
Any certificate signed by an officer of the Company and delivered to the
Agent or its counsel that refers to this Agreement shall be deemed to be a
representation and warranty by the Company to the Agent as to the matters
covered thereby with the same effect as if such representation and warranty
were set forth herein.
SECTION 4. COVENANTS OF THE COMPANY
The Company hereby covenants with you as follows.
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Everen Securities, Inc.
January __, 1997
Page 12
(a) The Company will not, at any time before or after the Registration
Statement, including any supplement filed pursuant to Rule 424 under the 1933
Act, is declared effective by the Commission file any amendment to such
Registration Statement without so notifying you and without providing you and
your counsel a reasonable opportunity to review such amendment.
(b) The Company will immediately upon receipt of any information
concerning the events listed below notify you and promptly confirm the notice
in writing:
(i) of the receipt of any comments from the Commission, the OCC, the
FRB, the FDIC, or any other governmental entity with respect to the transactions
contemplated by this Agreement;
(ii) any requests by the Commission or any other governmental entity
for any amendment or supplement to the Registration Statement or for additional
information;
(iii) of the issuance by the Commission or any other governmental
entity of any order or other action suspending the Subscription and Community
Offering or the use of the Registration Statement or the Prospectus;
(iv) the issuance by the Commission or any state authority of any
stop order suspending the effectiveness of the Registration Statement or of the
initiation or threat of initiation or threat of any proceedings for that
purpose; or
(v) of the occurrence of any event mentioned in paragraph (g) below.
The Company will make every reasonable effort to prevent the issuance by
the Commission or any other state authority of any such order and, if any such
order shall at any time be issued, to obtain the lifting thereof at the
earliest possible time.
(c) The Company will give you notice of its intention to file, and
reasonable time to review prior to filing, any amendment or supplement to the
Registration Statement or the Prospectus.
(d) The Company has delivered or will deliver to you and to your counsel
two complete conformed copies (including all exhibits) of the Registration
Statement, as originally filed and each amendment thereto.
(e) The Company will furnish to you, without charge, from time to time
during the period when the Prospectus is required to be delivered under the
1933 Act or the 1934 Act, such number of copies of such Prospectus (as amended
or supplemented) as you may reasonably request for the purposes contemplated by
the 1933 Act or the 1934 Act or the respective applicable rules and regulations
of the Commission thereunder. The Company authorizes the Agent to use the
Prospectus (as amended or supplemented, if amended or supplemented) for any
lawful manner in connection with the sale of the Shares by the Agent.
(f) The Company will comply in all material respects with the 1933 Act
Regulations, the 1934 Act and the rules and regulations of the Commission
promulgated under the 1934 Act (the "1934 ACT REGULATIONS"), and all other
applicable laws (including state Blue Sky laws) to be complied with prior to,
at, and subsequent to the Closing Date. During the periods prior to the
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Everen Securities, Inc.
January __, 1997
Page 13
Closing Date and when the Prospectus is required to be delivered, the Company
will comply in all material respects, at its own expense, with all requirements
imposed upon it by the 1933 Act, the 1933 Act Regulations, the 1934 Act and the
1934 Act Regulations, including, without limitations, Rule 10b-6 under the 1934
Act, in each case as from time to time in force, in accordance with the
provisions hereof and the Prospectus.
(g) If, at any time during the period when the Prospectus relating to the
Shares is required to be delivered (including the period after the Expiration
Date and prior to the Closing), any event relating to or affecting the Company
shall occur, as a result of which it is necessary or appropriate, in the
reasonable good faith opinion of the Agent's counsel, to amend or supplement
the Registration Statement or Prospectus in order to make the Registration
Statement or Prospectus not misleading in light of the circumstances existing
at the time it is delivered to a purchaser, the Company will, at its expense,
forthwith prepare, file with the Commission and furnish to you a reasonable
number of copies of an amendment or amendments of, or a supplement or
supplements to, the Registration Statement or Prospectus (in form and substance
satisfactory to you and your counsel after a reasonable time for review) which
will amend or supplement the Registration Statement or Prospectus so that as
amended or supplemented it will not contain an untrue statement of a material
fact or omit to state a material fact necessary in order to make the statements
therein, in light of the circumstances existing at the time the Prospectus is
delivered to a purchaser, not misleading. For the purpose of this Agreement,
the Company will timely furnish to you such information with respect to itself
as you may from time to time reasonably request.
(h) The Company will take all necessary actions, in cooperation with you,
and furnish to whomever the Agent may direct such information as may be
required to qualify or register the Shares for offering and sale by the Company
under the applicable securities or Blue Sky laws of each jurisdiction as you
may reasonably designate, provided, however, that the Company shall not be
obligated to qualify to do business in any jurisdiction in which it is not so
qualified. In each jurisdiction where any of the Shares shall have been
qualified or registered as above provided, the Company will make and file such
statements and reports in each fiscal period as are or may be required by the
laws of such jurisdictions.
(i) The Company will not sell or issue, contract to sell or otherwise
dispose of, for a period of 180 days after the Closing Date, without your prior
written consent which shall not be unreasonably withheld, any shares of Common
Stock other than the Shares or other than in connection with any employee
benefit plan or arrangement described in the Prospectus.
(j) During the period which the Common Stock is registered under the 1934
Act or for the three years from the Closing Date, whichever period is greater,
the Company will furnish to its shareholders as soon as practicable after the
end of each fiscal year an annual report (including a consolidated statement of
condition and consolidated statements of income or operations, changes in
shareholders' equity and cash flows of the Company and its subsidiaries as at
the end of and for such year, certified by independent public accountants in
accordance with Regulation S-X under the 1933 Act).
(k) During the period of three years from the date hereof, the Company
will furnish to you: (i) as soon as practicable, a paper copy of each report of
the Company furnished generally to shareholders of the Company or furnished to
or filed with the Commission under the 1934 Act or any national securities
exchange or system on which any class of securities of the Company is listed or
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Everen Securities, Inc.
January __, 1997
Page 14
quoted (including, but not limited to, reports on Forms 10-K, 10-Q and 8-K and
of all proxy statements and annual reports to shareholders), a copy of each
other report of the Company mailed to its shareholders or filed with the
Commission and each report of a public nature filed with the OCC, the FRB, the
FDIC, or any other supervisory or regulatory authority or national securities
exchange or system on which any class of securities of the Company is listed or
quoted, each press release and material news items and articles released by the
Company and such additional documents and information with respect to the
Company as you may reasonably request, and (ii) from time to time, such other
non-confidential information concerning the Company as you may reasonably
request.
(l) The Company will use the net proceeds from the sale of the Shares in
the manner set forth in the Prospectus under the caption "Use of Proceeds."
(m) Other than as permitted by the 1933 Act, the 1933 Act Regulations and
the laws of any state in which the Shares are qualified for sale, the Company
will not distribute any Prospectus, offering circular or other offering
material in connection with the offer and sale of Shares.
(n) The Company will make generally available to its security holders as
soon as practicable, but not later than 90 days after the close of the period
covered thereby, an earning statement (in form complying with the provisions of
Rule 158 of the regulations promulgated under the 1933 Act) covering a
twelve-month period beginning not later than the first day of the Company's
fiscal quarter next following the effective date (as defined in said Rule 158)
of the Registration Statement.
(o) The Company will file with the Commission such reports on Form SR as
may be required pursuant to Rule 463 under the 1933 Act.
(p) The Company will promptly register the Shares under Section 12(g) of
the 1934 Act and not deregister the Shares for a period of at least three years
thereafter, unless such registration is no longer required.
(q) The Company will use its best efforts to obtain approval for quotation
of the Shares on the Nasdaq National Market, effective on or prior to the
Closing Date and will use its best efforts to maintain such quotation (or, in
lieu thereof, listing on a national or regional securities exchange) for a
minimum of three years following the Closing Date.
(r) The Bank designated by the Company will maintain appropriate
arrangements for depositing all funds received from persons mailing Order Forms
to purchase Shares in the Subscription Offering and the Community Offering
until the Closing Date and satisfaction of all conditions precedent to the
release of such Bank's obligation to refund payments received from persons
ordering Shares in the Subscription and Community Offering as described in the
Prospectus or until refunds of such funds have been made to the person entitled
thereto and as described in the Prospectus. Such Bank will maintain such
records of all funds received as are necessary to permit the funds of each
subscriber to be separately insured by the FDIC (to the maximum extent
allowable) and to enable such Bank to make appropriate refunds of such funds in
the event that such funds are required to be made as described in the
Prospectus.
(s) The Company will take such actions and furnish such information as are
reasonably
15
Everen Securities, Inc.
January __, 1997
Page 15
requested by the Agent in order for the Agent to ensure compliance with the
NASD's "Interpretation With Respect to Free Riding and Withholding."
(t) Prior to the Closing Date, the Company will conduct its business in
compliance in all material respects with all applicable federal and state laws,
rules, regulations, decisions, directives and orders including, without
limitation, all decisions, directives and orders of the OCC, the FDIC and the
Illinois Commissioner.
(u) The Company and its Subsidiaries on a consolidated basis and each of
the Significant Subsidiaries considered separately will not, prior to the
Closing Date, incur any liability or obligation, direct or contingent, or enter
into any material transactions, other than in the ordinary course of business,
except as contemplated by the Prospectus.
(v) The Company will use all reasonable efforts to comply with, or cause
to be complied with, the conditions precedent to the several obligations of the
Agent specified in Section 9 hereof.
(w) The representations and warranties made in this Agreement will be true
and correct as of the date hereof and as of the Closing Date.
SECTION 5. PAYMENT OF EXPENSES
The Company agrees to pay all expenses incident to the performance of the
obligations of the Company under this Agreement, including, without limitation,
the following: (i) the preparation, issuance and delivery of certificates for
the Shares to the purchasers in the Subscription and Community Offering; (ii)
the fees and disbursements of the Company's counsel, accountants and other
advisors; (iii) the qualification of the Shares under all applicable securities
or Blue Sky laws, including filing fees and the fees and disbursements of
counsel in connection therewith and in connection with the preparation of a
Blue Sky memorandum; (iv) the printing and delivery to you in such quantities
as you shall reasonably request of copies of the Registration Statement and the
Prospectus, as amended or supplemented and all other documents in connection
with this Agreement; (v) filing fees incurred in connection with the review of
the Subscription and Community Offering by the Commission and by the NASD; (vi)
the fees for listing the shares on the Nasdaq National Market; (vii) fees and
expenses relating to advertising expenses, data processing expenses, temporary
personnel expenses, stock sale center expenses, investor meeting expenses, and
other miscellaneous expenses relating to the marketing by the Agent of the
Shares; (ix) the cost of printing all stock certificates and all other
documents applicable to the Subscription and Community Offering, including the
Order Forms, and the fees and charges of any transfer agent, registrar and
other agents; and (x) all reasonable and documented out-of-pocket expenses of
EVEREN Securities including without limitation the fees and expenses of your
counsel, provided that such reimbursement shall not exceed $75,000 (excluding
Blue Sky fees and expenses, including legal fees and expenses) incurred by you
in connection with the Offering which shall be payable from time to time upon
request. The reimbursement of expenses of the Agent provided in this Section 6
shall be in addition to the amounts payable to the Agent under Section 1 hereof
and any amounts which may become payable to the Agent under Sections 7 and 8
hereof.
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Everen Securities, Inc.
January __, 1997
Page 16
SECTION 6. INDEMNIFICATION
(a) The Company agrees to indemnify and hold harmless you, your officers,
directors, agents, servants and employees and each person, if any, who controls
you within the meaning of Section 15 of the 1933 Act or Section 20(a) of the
1934 Act, against any and all loss, liability, claim, damage or expense
whatsoever (including but not limited to settlement expenses), joint or
several, that you or any of them may suffer or to which you or any of them may
become subject under all applicable federal and state laws or otherwise, and to
promptly reimburse you and any such persons upon written demand for any
expenses (including fees and disbursements of counsel) incurred by you or any
of them in connection with investigating, preparing or defending any actions,
proceedings or claims (whether commenced or threatened) to the extent such
losses, claims, damages, liabilities or actions: (i) arise out of or are based
upon any untrue statement or alleged untrue statement of a material fact
contained in (a) the Registration Statement (or any amendment or supplement
thereto), the preliminary or final Prospectus (or any amendment or supplement
thereto), (b) any application or other instrument or document of the Company or
based upon written information supplied by the Company or their representatives
filed in any state or jurisdiction to register or qualify any or all of the
Shares under the securities laws thereof (collectively, the "BLUE SKY
APPLICATION"), or (c) any application or other document, advertisement, oral
statement, or communication ("SALES INFORMATION") prepared, made or executed by
or, with its consent, on behalf of the Company, or based upon written or oral
information furnished by, or with its consent, on behalf of the Company, in
connection with or in contemplation of the transactions contemplated by this
Agreement; (ii) arise out of or are based upon the omission or alleged omission
to state in any of the foregoing documents or information a material fact
required to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading; or (iii)
arise from any theory of liability whatsoever relating to or arising from or
based upon the Registration Statement (or any amendment or supplement thereto),
preliminary or final Prospectus (or any amendment or supplement thereto), Blue
Sky Application or Sales Information or other documentation distributed in
connection with the Subscription and Community Offering; provided, however,
that no indemnification is required under this paragraph (a) to the extent such
losses, claims, damages, liabilities or actions arise out of or are based upon
any untrue statements or alleged untrue statements in, or material omission or
alleged material omission from, the Registration Statement (or any amendment or
supplement thereto), preliminary or final Prospectus or Sales Information made
in reliance upon and in conformity with information furnished to the Company by
you regarding EVEREN Securities expressly for use in the Prospectus, which
information consists of the disclosure included in the Prospectus as the second
paragraph under the caption "Terms of the Offering -- Plan of Distribution for
the Subscription, Community and Public Offerings."
(b) You agree to indemnify and hold harmless the Company, its directors,
officers, agents, servants and employees, and each person, if any, who controls
the Company with the meaning of Section 15 of the 1933 Act or Section 20(a) of
the 1934 Act, against any and all loss, liability, claim, damage or expense
whatsoever (including but not limited to settlement expenses), joint or
several, that you or any of them may suffer or to which you or any of them may
become subject under all applicable federal and state laws or otherwise, and to
promptly reimburse you and any such persons upon written demand for any
expenses (including fees and disbursements of counsel) incurred by you or any
of them in connection with investigating, preparing or defending any actions,
proceedings or claims (whether commenced or threatened) to the extent such
losses, claims, damages, liabilities or actions 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 or supplement thereto) or the
preliminary or final Prospectus (or any amendment or
17
Everen Securities, Inc.
January __, 1997
Page 17
supplement thereto), the Sales Information, or arise out of or are based upon
the omission or alleged omission to state in any of the foregoing documents a
material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading; provided, however, that your obligations under this Section 7(b)
shall exist only if, and only to the extent, that such untrue statement or
alleged untrue statement was made in, or such material fact or alleged material
fact was omitted from the Registration Statement (or any amendment or
supplement thereto) or the preliminary or final Prospectus (or any amendment or
supplement thereto) or the Sales Information in reliance upon and in conformity
with information furnished to the Company by you regarding EVEREN Securities
expressly for use in the Prospectus, which information consists of the
disclosure included in the Prospectus as the second paragraph under the caption
"Terms of the Offering -- Plan of Distribution for the Subscription, Community
and Public Offerings."
(c) Each indemnified party shall give prompt written notice to each
indemnifying party of any action, proceeding, claim (whether commenced or
threatened), or suit instituted against it in respect of which indemnity may be
sought hereunder, but failure to so notify any indemnifying party shall not
relieve it from any liability which it may have on account of this Section 7 or
otherwise. An indemnifying party may participate at its own expense in the
defense of such action. In addition, if it so elects within a reasonable time
after receipt of such notice, an indemnifying party, jointly with any other
indemnifying parties receiving such notice, may assume the defense of such
action with counsel chosen by it and approved by the indemnified parties that
are defendants in such action, and such indemnified parties shall not be liable
for any fees and expenses of such counsel for the indemnified parties incurred
thereafter in connection with such action, proceeding or claim, other than
reasonable costs of investigation. In any action, proceeding or claim, the
indemnified party shall have the right to retain its own counsel, but the fees
and disbursements of such counsel shall be at its own expense unless (i) the
parties to any such action, proceeding or claim include both the indemnifying
party and the indemnified party and (ii) representation of both parties by the
same counsel reasonably would be deemed inappropriate due to actual or
potential conflicting interests between them. In no event shall the
indemnifying parties be liable for the fees and expenses of more than one
separate firm of attorneys (other than any special counsel that said firm may
retain) for each indemnified party in connection with any one action,
proceeding or claim or separate but similar or related actions, proceedings or
claims in the same jurisdiction arising out of the same general allegations or
circumstances.
SECTION 8. CONTRIBUTION
In order to provide for just and equitable contribution in circumstances
in which the indemnification provided for in Section 7 is due in accordance
with its terms but is for any reason held by a court to be unavailable from the
Company or you, the Company or you shall contribute to the aggregate losses,
claims, damages and liabilities (including any investigation, legal and other
expenses incurred in connection with, and any amount paid in settlement of, any
action, suit or proceeding of any claims asserted, but after deducting any
contribution received by the Company or you from persons other than the other
party thereto, who may also be liable for contribution) to the party entitled
to indemnification in such proportion so that you are responsible for that
portion represented by the percentage that the fees paid to the Agent pursuant
to Section 1 of this Agreement (not including expenses) bears to the gross
proceeds received by the Company from the sale of the Shares in the
Subscription and Community Offering and the Company shall be
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Everen Securities, Inc.
January __, 1997
Page 18
responsible for the balance. If, however, the allocation provided above is not
permitted by applicable law, then each indemnifying party shall contribute to
such amount paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Company on the one hand and you on the other in connection with
the statements or omissions which resulted in such losses, claims, damage or
liabilities (or actions, proceedings or claims in respect thereof), as well as
any other relevant equitable considerations. The relative benefits received by
the Company on the one hand and you on the other shall be deemed to be in the
same proportion as the total gross proceeds from the Subscription and Community
Offering (before deducting expenses) received by the Company bears to the total
fees (not including expenses) received by the Agent. The relative fault shall
be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or other omission or alleged
omission to state a material fact relates to information supplied by the
Company on the one hand or you on the other and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Company and you agree that it would not be just and
equitable if contribution pursuant to this Section 8 were determined by pro
rata allocation or by any other method of allocation which does not take into
account the equitable considerations referred to above in this Section 8. The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages or liabilities (or actions, proceedings or claims in respect
thereof) referred to above in this Section 8 shall be deemed to include any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action, proceeding or
claim. It is expressly agreed that the Agent shall not be liable for any loss,
liability, claim, damage or expense or be required to contribute any amount
which in the aggregate exceeds the amount paid to the Agent under the
Agreement. It is understood that the above-stated limitation on the Agent's
liability is essential to the Agent and that the Agent would not have entered
into this Agreement if such limitation had not been agreed to by the parties to
this Agreement. No person found guilty of any fraudulent misrepresentation
(within the meaning of Section 11 (f) of the 1933 Act) shall be entitled to
contribution from any person who was not also found guilty of such fraudulent
misrepresentation. The obligations of the Company and the Agent under this
Section 8 and under Section 7 hereof shall be in addition to any liability
which the Company and the Agent may otherwise have. For purposes of this
Section 8, each of your officers and directors and each person, if any, who
controls you within the meaning of the 1933 Act and the 1934 Act shall have the
same rights to contribution as you and each person, if any, who controls the
Company within the meaning of the 1933 Act and the 1934 Act, and each officer
and director of the Company, shall have the same rights to contribution as the
Company. Any party entitled to contribution, promptly after receipt of notice
of commencement of any action, suit, claim or proceeding against such party in
respect of which a claim for contribution may be made against another party
under this Section 8, will notify such party from whom contribution may be
sought, but the omission to so notify such party shall not relieve the party
from whom contribution may be sought from any other obligation it may have
hereunder or otherwise than under this Section 8.
SECTION 9. CONDITIONS OF THE OBLIGATIONS OF THE AGENT
Your obligations hereunder are subject, in your discretion, to the
condition that all representations and warranties and other statements of the
Company herein are, at and as of commencement of the Subscription and Community
Offering and at and as of the Closing Date, true and correct in all material
respects, the condition that the Company shall have performed in all material
respects all of its obligations hereunder to be performed on or before such
dates, and to the following further conditions (which are solely for your
benefit), unless waived in writing by you:
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Everen Securities, Inc.
January __, 1997
Page 19
(a) The Registration Statement shall have been declared effective by the
Commission not later than 5:30 p.m., Eastern time, on the date of this
Agreement, or with your consent at a later time and date; and at the Closing
Date no stop order suspending the effectiveness of the Registration Statement
shall have been issued under the 1933 Act or proceedings therefor initiated or
threatened by the Commission or any state authority, and no order or other
action suspending the effectiveness of the Prospectus shall have been issued or
proceedings therefor initiated or threatened by the Commission or any state
authority.
(b) At the Closing Date you shall have received:
(1) The favorable opinion, dated as of the Closing Date addressed to the
Agent and for its benefit, of Vedder, Price, Xxxxxxx & Kammholz, counsel for
the Company, and in form and substance satisfactory to EVEREN Securities to the
effect that:
(i) the Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Illinois with full
power and authority to own or lease its properties and conduct its business as
described in the Prospectus; and the Company has been duly qualified to do
business as a foreign corporation under the corporation law of, and is in good
standing as such in, every jurisdiction where the ownership or leasing of
property, or the conduct of its business requires such qualification except
where the failure to so qualify would not have a material adverse effect on the
condition, financial or otherwise, or the business, property, operations or
income of the Company and its Subsidiaries on a consolidated basis;
(ii) an opinion to the same general effect as paragraph (i) of this
subsection (1) in respect of each direct and indirect subsidiary of the
Company;
(iii) The Company has an authorized and outstanding capitalization as set
forth in the Prospectus and the Shares conform to the description thereof
contained in the Prospectus. All of the issued and outstanding shares of Common
Stock have been duly authorized, validly issued and are fully paid and
non-assessable and free of preemptive or other similar rights and there are no
options, agreements, contracts or other rights in existence to acquire from the
Company any shares of Common Stock, except as set forth in the Prospectus.
Except as set forth in the Prospectus, there are no holders of the securities
of the Company having rights to the registration thereof. The Company has no
banking subsidiary other than the Banks. All of the capital stock of each
Subsidiary of the Company has been duly authorized, validly issued and is fully
paid and non-assessable. Except as set forth in the Prospectus, the Company,
directly or indirectly, owns of record and beneficially, free and clear of any
liens, claims, encumbrances or rights of others, all of the issued and
outstanding shares of each of its subsidiaries. There are no options,
agreements, contracts or other rights in existence to purchase or acquire from
the Company or its subsidiaries any issued and outstanding shares of such
subsidiaries;
(iv) The Shares to be sold by the Company in the Subscription and
Community Offering have been duly authorized and, when issued and delivered by
the Company pursuant to the Subscription and Community Offering against payment
of the consideration therefor, will be validly issued, fully paid and
non-assessable and good title to the Shares will be transferred from the
Company to the purchasers thereof against payment therefore to such claims as
may be asserted against the purchaser by third party claimants; the holders of
the Shares will not be subject to personal liability by reason of being such
holders; the Shares are not subject to the preemptive rights
20
Everen Securities, Inc.
January __, 1997
Page 20
of any shareholder of the Company; and all corporate actions required to be
taken for the authorization, issue and sale of the Shares have been validly and
sufficiently taken;
(v) This Agreement has been duly and validly authorized, executed and
delivered and constitutes a valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms, except insofar as
(A) such enforcement may be subject to bankruptcy, insolvency, reorganization,
moratorium or other similar laws now or hereafter in effect relating to
creditors' rights generally; (B) the remedy of specific performance and
injunctive and other forms of equitable relief may be subject to equitable
defenses and to the discretion of the court before which any proceeding
thereafter may be brought; and (C) such enforcement may be subject to any
limitations under applicable law which relate to the indemnification and
contribution provisions of this Agreement.
(vi) The making and performance by the Company of this Agreement has been
duly authorized by all necessary corporate action and will not violate any
provision of the Company's charter or bylaws and will not result in the breach
or be in contravention of any of the terms or provisions of or constitute a
default under, or result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company or its Subsidiaries
under any agreement, franchise, license, indenture, lease, mortgage, deed of
trust, or other instrument known to such counsel to which the Company or any
Subsidiary is a party or by which the Company, any Subsidiary or the property
of any of them may be bound or affected, or, to such counsel's knowledge, any
law, order, judgment, rule or regulation applicable to the Company or any
Subsidiary of any government, governmental instrumentality, court or regulatory
body, administrative agency or other governmental body having jurisdiction over
the Company or any Subsidiary or any of their respective properties, or any
order of any court or governmental agency or authority entered in any
proceeding to which the Company or any Subsidiary was or is now a party or by
which it is bound. No consent, approval, authorization or other order of, or
filing with, any court, regulatory body, administrative agency or other
governmental body is required for the execution and delivery of this Agreement
or the consummation of the transactions contemplated herein, except for
compliance with the 1933 Act and applicable Blue Sky laws public and clearance
of the Subscription and Community Offering with the NASD;
(vii) the Registration Statement has become effective under the 1933 Act,
and, to the best knowledge of such counsel, no stop order suspending the
effectiveness of the Registration Statement has been issued and no proceedings
for that purpose have been instituted or are pending or contemplated by the
Commission under the 1933 Act, and the Registration Statement (including the
information deemed to be part of the Registration Statement at the time of
effectiveness pursuant to Rule 430A(b), if applicable), the Prospectus and each
amendment or supplement thereto (except for the financial statements and other
statistical or financial data included therein as to which such counsel need
express no opinion) comply as to form in all material respects with the
requirements of the 1933 Act; and such counsel does not know of any statutes or
regulations or any legal or governmental proceedings pending or threatened
required to be described in the Prospectus which are not described as required,
nor of any contracts or documents of a character required to be described in
the Registration Statement or Prospectus or to be filed as exhibits to the
Registration Statement which are not described or filed, as required; and
(viii) the statements under the captions "______________-- Limitation of
Liability and Indemnification," "Supervision and Regulation," and "Description
of Capital Stock" in the
21
Everen Securities, Inc.
January __, 1997
Page 21
Prospectus, insofar as such statements constitute a summary of documents
referred to therein or matters of law, are accurate summaries and fairly and
correctly present, in all material respects, the information called for with
respect to such documents and matters.
In rendering such opinion, such counsel may rely, provided that the
opinion shall state that you and they are entitled to so rely, as to factual
matters on certificates of the officers and employees of, and accountants for,
the Company. Such opinion may contain such other qualifications and assumptions
as are reasonably acceptable to counsel for the Agent.
In addition, such counsel shall state that they have participated in
conferences with officers and other representatives of the Company,
representatives of the independent public accountants for the Company, and
representatives of the Agent and its counsel, at which the contents of the
Registration Statement, the Prospectus and related matters were discussed and,
although such counsel is not passing upon, and does not assume any
responsibility for, the accuracy, completeness or fairness of the statements
contained in the Registration Statement or the Prospectus and has not made any
independent check or verification thereof, on the basis of the foregoing
(relying as to factual matters upon the statements of officers and other
representatives of the Company), no facts have come to such counsel's attention
that have led them to believe that the Registration Statement (other than
financial statements, the notes thereto and related schedules and other
financial, statistical and accounting data included therein or omitted
therefrom, as to which such counsel need express no belief), as amended or
supplemented, if applicable, at the time such Registration Statement or any
post-effective amendment became effective, contained an untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading, or that the
Prospectus (other than financial statements, the notes thereto and related
schedules and other financial, statistical and accounting data included therein
or omitted .therefrom, as to which such counsel need express no belief) as
amended or supplemented, if applicable, as of its date and the Closing Date,
contained an untrue statement of a material fact or omitted to state a material
fact necessary to make the statements therein not misleading in light of the
circumstances under which they were made.
(4) The favorable opinion, dated as of the Closing Date, of Much Shelist
Freed Xxxxxxxxx Xxxxx Xxxx & Xxxxxxxxxx, P.C., your counsel, with respect to
such matters as you may reasonably require. Such opinion may rely upon the
opinion of counsel to the Company as such counsel deems proper in the
reasonable exercise of its judgment, and as to matters of fact, upon
certificates of officers and directors of the Company delivered pursuant hereto
or as such counsel shall reasonably request.
(5) At the Closing Date, you shall receive a certificate of the Chief
Executive Officer and the Chief Financial Officer of the Company, dated as of
such Closing Date, to the effect that to the best of their knowledge after due
inquiry: (i) since the respective dates as of which information is given in the
Registration Statement and the Prospectus, there has been no material adverse
change in the financial condition, in the earnings, capital, properties, or
business affairs of the Company or any Subsidiary whether or not arising in the
ordinary course of business; (ii) the representations and warranties in Section
4 are true and correct with the same force and effect as through expressly made
at and as of the Closing Date; (iii) the Company has complied in all material
respects with all agreements and satisfied all conditions on their part to be
performed or satisfied at or prior to the Closing Date under the Agreement, and
all other applicable laws (including state Blue Sky laws), regulations,
decisions and orders, and will comply in all material respects with all
obligations to be
22
Everen Securities, Inc.
January __, 1997
Page 22
satisfied by them after consummation of the Subscription and Community
Offering; (iv) no stop order suspending the effectiveness of the Registration
Statement has been initiated or, to the best knowledge of the Company,
threatened by the Commission or any state authority; and (v) no order
suspending the Subscription and Community Offering, or the effectiveness of the
Prospectus has been issued and no proceedings for that purpose have been
initiated or threatened by the Commission.
(d) Prior to and at the Closing Date: (i) in the reasonable opinion of the
Agent, there shall have been no material adverse change in the financial
condition, or in the earnings or the business affairs of the Company or any
Subsidiary from the latest dates as of which such condition is set forth in the
Prospectus, except as referred to therein; (ii) there shall have been no
material transaction entered into by the Company or any Subsidiary, from the
latest date as of which the financial condition of the Company is set forth in
the Prospectus other than transactions referred to or contemplated therein;
(iii) the Company or any Subsidiary shall not have received from the OCC, the
FRB, the FDIC or the Illinois Commissioner any direction (oral or written) to
make any material change in the method of conducting their businesses with
which it has not complied in all material respects (which direction, if any,
shall have been disclosed to the Agent) or which materially and adversely would
affect the businesses, operations or financial condition, income or business
affairs of the Company and its Subsidiaries on a consolidated basis or any of
the Significant Subsidiaries considered separately; (iv) neither the Company
nor any Subsidiary shall have been in default (nor shall an event have occurred
which, with notice or lapse of time or both, would constitute a default) under
any provision of any agreement or instrument relating to any outstanding
indebtedness, which default or event would have a material adverse effect on
the business, operations or financial condition of the Company and its
Subsidiaries on a consolidated basis or any of the Significant Subsidiaries
considered separately; (v) no action, suit or proceedings, at law or in equity
or before or by any federal or state commission, board or other administrative
agency, shall be pending or, to the knowledge of the Company, threatened
against the Company or any Subsidiary or affecting any of their properties
wherein an unfavorable decision, ruling or finding would materially and
adversely affect the business, operations, financial condition or income of the
Company and its Subsidiaries on a consolidated basis or any of the Significant
Subsidiaries considered separately; and (vi) the Shares shall have been
qualified or registered for offering and sale under the securities or blue sky
laws of the jurisdiction as set forth in the final Blue Sky memorandum of your
legal counsel.
(e) Concurrently with the execution of this Agreement, the Agent shall
receive a letter from KPMG Peat Marwick LLP dated the date of Agreement, and
addressed to the Agent: (i) confirming that KPMG Peat Marwick LLP is a firm of
independent public accountants within the meaning of the Code of Professional
Conduct of the American Institute of Certified Public Accountants and the 1933
Act and the 1933 Act Regulations and no information concerning its respective
relationship with or interests in the Company is required to be disclosed by
Item 10 of the Form S-1, and (ii) stating in effect that in their opinion the
combined and consolidated financial statements and financial statement
schedules of the Company for the years ended December 31, 1995, 1994 and 1993
as are included in the Prospectus and covered by their opinion included
therein, comply as to form in all material respects with the applicable
accounting requirements of the 1933 Act and the 1933 Act Regulations, and
generally accepted accounting principles; (iii) stating in effect that, on the
basis of certain agreed upon procedures (but not an audit examination in
accordance with generally accepted auditing standards) consisting of a reading
of the latest available unaudited interim consolidated financial statements of
the Company and its Subsidiaries prepared by the Company, a reading of the
minutes of meetings of the Boards of Directors of the Company
23
Everen Securities, Inc.
January __, 1997
Page 23
and its Subsidiaries and consultations with officers of the Company responsible
for financial and accounting matters, nothing came to its attention which
caused it to believe that: (A) during the period from the date of the latest
audited financial statements included in the Prospectus to a specified date not
more than five business days prior to the date hereof, there was any material
increase in borrowings by the Company or any Subsidiary, any material increase
in loans greater than ninety days delinquent, any material increases in real
estate owned, any material decrease in deposit accounts or any changes in
principles or methods of accounting whether by adoption or otherwise (except as
disclosed in the Prospectus); or (B) there was any material decrease in
consolidated net assets of the Company at the date of such letter from the
amounts shown in the latest audited statement of condition included in the
Prospectus or there was any material decrease in net interest income, income
before income taxes, or net income of the Company for the period from the date
of the latest audited statement of operations included in the Prospectus and
ended on a specified date not more than five business days prior to the date
hereof as compared to the corresponding period in the preceding year; and (iv)
stating that, in addition to the examination referred to in its opinion
included in the Prospectus and the performance of the procedures referred to in
clause (iii) of this subsection (e), it has compared with the general
accounting records of the Company and/or the Subsidiaries, as applicable, which
are subject to the internal controls of the Company's and/or the Subsidiaries',
as applicable, accounting system and other data prepared by the Company and/or
the Subsidiaries, as applicable, directly from such accounting records, to the
extent specified in such letter, such amounts and/or percentages set forth in
the Prospectus as you may reasonably request; and they have found such amounts
and percentages to be in agreement therewith (subject to rounding).
(f) At the Closing Date, you shall receive a letter from KPMG Peat Marwick
LLP, dated the Closing Date, addressed to the Agent, confirming the statements
made by it in the letter delivered by it pursuant to subsection (e) of this
Section 9, the "specified date" referred to in clause (iii) thereof to be a
date specified in such letter, which shall not be more than five business days
prior to the Closing Date.
(g) At the Closing Date, your counsel shall be furnished with such
documents and opinions as they may reasonably require for the purpose of
enabling them to pass upon the sale of the Shares as herein contemplated and
related proceedings or in order to evidence the occurrence or completeness of
any of the representations or warranties, or the fulfillment of any of the
conditions herein contained; and all proceedings taken by the Company in
connection with the sale of the Shares as herein contemplated shall be
satisfactory in form and substance to you.
(h) The Company or any Subsidiary shall not have sustained since the date
of the latest audited financial statements included in the Registration
Statement and Prospectus any material loss or interference with its business
from fire, explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental action, order or
decree, otherwise than as set forth or contemplated in the Registration
Statement and Prospectus, and since the respective dates as of which
information is given in the Registration Statement and Prospectus, there shall
not have been any material change in the consolidated long-term debt of the
Company or any material change, or any development involving a prospective
material change, in or affecting the general affairs, management, financial
position, shareholders' equity, cash flow or results of operations of the
Company and its Subsidiaries on a consolidated basis or any of the Significant
Subsidiaries considered separately, otherwise than as set forth or contemplated
in the Registration Statement and Prospectus, the effect of which, in any such
case described above, is sufficiently
24
Everen Securities, Inc.
January __, 1997
Page 24
material and adverse as to make it impracticable or inadvisable to proceed with
the Subscription and Community Offering or the delivery of the Shares on the
terms and in the manner contemplated in Prospectus.
(i) Subsequent to the date hereof, there shall not have occurred any of
the following: (i) any domestic or international event or act or occurrence
which has materially disrupted, or in your sole reasonable opinion will in the
immediate future materially disrupt the securities markets; (ii) trading in
securities on the New York Stock Exchange or the American Stock Exchange shall
have been suspended or limited; (iii) material governmental restrictions shall
have been imposed on trading in securities generally (not in force and effect
on the date hereof); (iv) a banking moratorium shall have been declared by
federal or New York or Illinois State authorities; (v) the Dow Xxxxx Industrial
Average (the "DJIA") shall on any day, from and including the date of this
Agreement, have declined 20% or more from the closing D/IA as reported in The
Wall Street Journal for the business day immediately preceding the effective
date of the Registration Statement; (vi) any outbreak of international
hostilities or other national or international calamity or crisis or change in
economic or political conditions shall have occurred, if the effect of such
outbreak, calamity, crisis or change on the financial markets of the United
States would, in your sole judgment, make the offering of the Shares
impracticable; (vii) the passage by the Congress of the United States or by any
state legislative body of any act or measure, or the adoption or proposed
adoption of any orders, rules, legislation or regulations by any governmental
body, any authoritative accounting institute or board or any governmental
executive which is reasonably believed likely by you to have a material adverse
impact on the business, financial condition or financial statements of the
Company, or the market for the Shares; (viii) any material adverse change shall
have occurred since the respective dates as of which information is given in
the Registration Statement and Prospectus in the financial condition (financial
or other) of the Company or in the earnings, affairs or business prospects of
the Company and its Subsidiaries on a consolidated basis or any of the
Significant Subsidiaries considered separately whether or not arising in the
ordinary course of business; or (ix) the enactment, publication, decree or
other promulgation of any federal or state statute, regulation, rule or order
of any court or other governmental authority or the taking of any action by any
federal, state or local government or agency in respect of its monetary or
fiscal affairs, which, in your sole opinion, materially and adversely affects,
or will materially and adversely affect, the business of the Company and its
Subsidiaries on a consolidated basis or any of the Significant Subsidiaries
considered separately.
If any of the conditions specified in this Section shall not have been
fulfilled when and as required by this Agreement, or by_______________ __, 1997
(unless such date is extended by a written agreement signed by all of the
parties hereto), this Agreement and all of your obligations hereunder may be
canceled by you by notifying the Company of such cancellation in writing
(including facsimile transmissions) or by telegram at any time at or prior to
the Closing Date, and any such cancellation shall be without liability of any
party to any other party except as otherwise provided in Sections 1, 6, 7 and 8
hereof. Notwithstanding the above, if this Agreement is canceled pursuant to
this paragraph, the Company agrees to reimburse you for all of your
out-of-pocket expenses, including without limitation the fees and expenses of
your counsel, provided that such reimbursement shall not exceed $75,000
(excluding Blue Sky counsel fees and expenses), subject to the limits expressed
in Section 6 hereof, reasonably incurred by you, and your counsel, at its
normal rates, in connection with the preparation of the Registration Statement
and the Prospectus, and in contemplation of the proposed Subscription and
Community Offering.
25
Everen Securities, Inc.
January __, 1997
Page 25
SECTION 10. TERMINATION
(a) In the event the Company elects not to accept any orders for Shares in
the Subscription and Community Offering, this Agreement shall terminate upon
refund by the Company to each person who has ordered any of the Shares the full
amount which it may have received from such persons and no party to this
Agreement shall have any obligation to the other hereunder, except for the
Company's obligations under Sections 1, 6, 7, 8 and 9 hereof.
(b) This Agreement may be terminated by the Agent, with respect to the
Agent's obligations hereunder, by notifying the Company at any time at or prior
to the Closing Date, if any of the conditions specified in Section 9 hereof
shall not have been fulfilled when and as required by this Agreement or if the
services to be performed by the Agent have not been completed by____________
__, 1997 (unless such date is extended by a written agreement signed by all of
the parties hereto).
SECTION 11. SURVIVAL
The respective indemnities, agreements, representations, warranties and
other statements of the Company and you, as set forth in this Agreement, shall
remain in full force and effect, regardless of any investigation (or any
statement as to the results thereof) made by or on behalf of you or any of your
officers or directors or any person controlling you, or the Company or any
officer, director or person controlling the Company, and shall survive
termination of the Agreement and the receipt or delivery of any payment for the
Shares.
SECTION 12. MISCELLANEOUS
Notices hereunder, except as otherwise provided herein, shall be given in
writing or by telegraph, addressed (a) to the Agent at 00 Xxxx Xxxxxx Xxxxx,
Xxxxxxx, Xxxxxxxx 00000-0000 (Attention: Xxxxx X. Xxxxxxxxx, Senior Vice
President), with a copy (which shall not constitute notice) to Much Shelist
Freed Xxxxxxxxx Xxxxx Xxxx & Xxxxxxxxxx, P.C. (Attention: Xxxxxxx X. Xxxxxx,
Esq.), and (b) to the Company at 000 Xxxxx Xxxx Xxxx, Xxxx Xxxxxx, Xxxxxxxx
00000-1951 (Attention: Xxxxxx X. Xxxxx, Chief Executive Officer), with a copy
(which shall not constitute notice) to Vedder, Xxxxx, Xxxxxxx & Kammholz, 000
Xxxxx XxXxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000 (Attention: Xxxxxxxx X. Xxxxx,
Esq.).
This Agreement is made solely for the benefit of and will be binding upon
the parties hereto and their respective successors and the controlling persons,
directors and officers referred to in Section 7 hereof and no other person will
have any right or obligations hereunder. The term "SUCCESSOR" shall not
include any purchaser of any of the Shares.
This Agreement shall be governed by and construed in accordance with the
laws of the State of Illinois.
This Agreement may be signed in various counterparts which together will
constitute one agreement.
If the foregoing correctly sets forth the arrangement among the Company
and the Agent, please indicate acceptance thereof in the space provided below
for that purpose, whereupon this
26
Everen Securities, Inc.
January __, 1997
Page 26
letter and your acceptance shall constitute a binding agreement.
Very truly yours,
WINTRUST FINANCIAL CORPORATION
By:______________________________
Xxxxxx X. Xxxxx,
Chief Executive Officer
Accepted as of the date first above written.
EVEREN SECURITIES, INC.
By:__________________________
Xxxxx X. Xxxxxxxxx
Senior Vice President
27
EXHIBIT A
EVEREN Securities ("EVEREN") will consult with and advise the Company as
to the matters set forth below.
GENERAL SERVICES
Solicit, analyze, and make recommendations on bids from printing, data
processing, and transfer agent firms.
Supervise printing, data processing agent (if any), and transfer agent firms.
Assist in drafting and distribution of press releases as required or
appropriate.
FINANCIAL ADVISORY SERVICES
Conduct such review as we deem appropriate.
Provide intensive financial and marketing input for drafting of offering
circular.
Recommend:
- The number of shares and range of prices per share of stock to be issued,
- Subscription priorities among current stockholders, customers, and
community members, and
- Limitations on amounts individuals and groups of related individuals may
purchase.
SUBSCRIPTION AND DIRECT COMMUNITY OFFERING ENHANCEMENT SERVICES
Design and manage the direct stock sale process:
- Draft all of the marketing materials, such as cover letters,
question-and-answer brochures, and the stock order form, to be
included in an attractive marketing package along with the prospectus;
- Arrange for the distribution of marketing packages to those whom you wish
to target;
- Conduct informational sessions for the Board of Directors, management, and
employees so that everyone in the organization is aware of and
knowledgeable about the Offerings;
1
28
EXHIBIT A
SUBSCRIPTION AND COMMUNITY OFFERING ENHANCEMENT SERVICES (continued)
- Set up and manage a Stock Sale Center staffed with non-commissioned
EVEREN Series 7-registered representatives to:
1. Solicit investor interest through a telemarketing campaign,
2. Meet with prospective investors at the Stock Sale Center,
3. Answer telephone inquiries,
4. Track prospective investors,
5. Record stock orders using XXXXXX's proprietary scanning and order
management software,
6. Maintain the stock order book and provide transfer agent
instructions,
7. Mail order acknowledgments,
8. Provide senior management with daily reports,
9. Handle special situations as they arise, and
10. Otherwise assist in the sale of stock;
- Arrange the logistics of investor information meeting(s) as required;
- Prepare a slide presentation for investor information meeting(s);
- Prepare a script for presentation by senior management at investor
information meeting(s);
- Prepare management for the question-and-answer period at investor
information meeting(s); and
- Attend and address investor information meeting(s) and be available to
answer questions.
BROKER-ASSISTED SALES SERVICES
In the event the Company wishes to utilize an Assisting Broker structure:
- Arrange logistics of broker information meeting(s) as required,
- Prepare a slide presentation for broker information meeting(s),
- Prepare a script for presentation by senior management at broker information
meeting(s),
- Prepare management for question-and-answer period at broker information
meeting(s),
- Xxxxxxx XXXXXX's Syndicate Department to encourage and facilitate the
attendance of XXXXXX's registered representatives and, possibly, those of
other broker-dealers at the broker information meetings,
- Attend and address broker information meeting(s) and be available to answer
questions, and
- Produce a confidential broker memorandum to assist participating brokers in
selling the stock.
2
29
EXHIBIT A
UNDERWRITING SERVICES
If sufficient Common Stock remains available after the Subscription and Direct
Community Offerings to effect an Underwritten Public Offering and should any
investigations and inquiries conducted by EVEREN prove satisfactory, EVEREN
would intend to serve as the Lead Managing Underwriter in an Underwritten
Public Offering of the Common Stock. Such underwriting would be subject, among
other things, to the conditions contained in a separate Underwriting Agreement
to be negotiated by the parties (the "Underwriting Agreement").
AFTERMARKET SUPPORT SERVICES
EVEREN will use its best efforts to act as a market maker in the Company's
Common Stock after the Offerings are completed, and to secure a similar
commitment from at least one additional firm. For a minimum period of two
years following completion of the Offerings, EVEREN will include the Company in
its regularly published Banking and Finance equity research program.
3
30
EXHIBIT B
[SUBJECT TO CLIENT REVIEW AND APPROVAL]
WINTRUST FINANCIAL CORPORATION
(an Illinois corporation)
1,200,000 Shares
of
Common Stock
FORM OF SELECTED DEALER'S AGREEMENT
January __, 1997
Gentlemen:
We have agreed to assist Wintrust Financial Corporation, an Illinois
Corporation (the "COMPANY"), in connection with the Company's offer and sale,
on a best efforts basis, of up to 1,200,000 shares of the Company's common
stock, without par value (the "SHARES"), at a price of $_____. The Shares and
certain of the terms on which they are being offered are more fully described
in the enclosed Prospectus dated ________________, 1997 (the "PROSPECTUS").
In connection with its Subscription and Community Offering, the Company
has offered the Shares concurrently in a Subscription Offering (to shareholders
of the Company and customers of its banking subsidiaries) and in a concurrent
Community Offering to the general public with a preference given to residents
of the communities in which the Company's banking subsidiaries have offices.
The Shares are also being offered in accordance with the Plan by a selling
group of broker-dealers.
We are offering certain selected dealers (of which you are one) the
opportunity to participate in the solicitation of purchase orders for the
Shares and we will pay you a fee in the amount of 2.5% of the dollar amount of
the Shares sold on behalf of the Company by you, as evidenced by the authorized
designation of your firm on the order form or forms of such Shares accompanying
the funds transmitted for payment therefor to the special account established
by the Company for the purpose of holding such funds. It is understood, of
course, that payment of your fee will be made only out of compensation received
by us for the Shares sold on behalf of the Company by you, as evidenced in
accordance with the preceding sentence. As soon as practicable after the
closing date of the offering, we will remit to you, out of our compensation as
provided above, the fees to which you are entitled hereunder.
Each order form for the purchase of Share must set for the identity and
address of each person to whom the certificate for such Shares should be issued
and delivered. Such order form should clearly identify your firm. You shall
instruct any purchaser who elects to send his order form to you to make any
accompanying check payable to "Wintrust Financial Corporation."
This offer is made subject to the terms and conditions herein set forth
and is made only to selected dealers which are (i) members in good standing of
the National Association of Securities
31
[SELECTED DEALER]
[ ] [ ], 1997
Page 2
Dealers, Inc. ("NASD") which have at least $25,0000 net capital and which are
to comply with all applicable rules of the NASD, including, without limitation,
the NASD's Interpretation with Respect to Free-Riding and Withholding and
Section 24 of Article III of the NASD's Rules of Fair Practice, or (ii) foreign
dealers not eligible for membership in the NASD which have at least $25,000 net
capital who agree (A) not to sell any Shares within the United States, its
territories or possessions or to persons who are citizens thereof or resident
therein and (B) in making other sales to comply with the above-mentioned NASD
Interpretation, Section 8.24 and 36 of the above-mentioned Article III as if
they were NASD members, and Section 25 of such Article III as it applies to
non-member brokers or dealers in a foreign country. By executing this
Agreement, (i) you represent and warrant that you satisfy the standards set
forth in this paragraph for participation in the solicitation of offers to buy
the Shares and (ii) confirm that you will continue to comply with the
requirements of this paragraph until termination of this Agreement.
Purchase Orders for Shares will be strictly subject to confirmation and
we, acting on behalf of the Company, reserve the right in our uncontrolled
discretion to reject any order in whole or in part, to accept or reject orders
in the order of their receipt or otherwise, and to allot. Neither you nor any
person is authorized by the Company or by us to give any information or make
any representations other than those contained in the Prospectus in connection
with the sale of the Shares. No selected dealer is authorized to act as agent
for us when soliciting purchase orders for the Shares from the public or
otherwise. No selected dealer shall engage in any stabilizing (as defined in
Rule 10b-7 promulgated under the Securities Exchange Act of 1934, as amended)
with respect to the Shares during the offering.
We and each selected dealer assisting in selling Shares pursuant hereto
agree to comply with the applicable requirements of the Securities Exchange Act
of 1934, as amended, and applicable state rules and regulations. In addition,
we and each selected dealer confirm that the Securities and Exchange Commission
interprets Rule 15c2-8 promulgated under the Securities Exchange Act of 1934,
as amended, as requiring that a Prospectus be supplied to each person who is
expected to receive a confirmation of sale 48 hours prior to delivery of such
person's order form.
We and each selected dealer further agree to the extent that our customers
desire to pay for shares with funds held by or to be deposited with us, in
accordance with the interpretation of the Securities and Exchange Commission of
Rule 15c2-4 promulgated under the Securities Exchange Act of 1934, as amended,
either (a) upon receipt of an executed order form or direction to execute an
order on behalf of a customer, to forward the Price to Public for the Shares
ordered on or before twelve noon of the business day following receipt or
execution of an order form by us to the Bank designated by Company for deposit
in an escrow account or (b) to solicit indications of interest in which event
(i) we will subsequently contact any customer indicating interest to confirm
the interest and give instructions to execute and return an order form or to
receive authorization to execute the order form on the customer's behalf; (ii)
we will mail acknowledgments of receipt of orders to each customer confirming
interest on the business day following such confirmation; (iii) we will debit
accounts of such customers on the third business day (the "debit date")
following receipt of the confirmation referred to in (i), and (iv) we will
forward completed order forms together with such funds to the Bank designated
by Company on or before 12:00 Noon, Central time, on the next business day
following the debit date for deposit in the escrow account. We and each
selected dealer acknowledge that if the procedure in (b) is adopted, our
customers' funds are not required to be in their accounts until the debit date.
We and each selected dealer agree that no method of payment, other than as set
forth in this paragraph, will be employed for shares of Share sold
32
[SELECTED DEALER]
[ ] [ ], 1997
Page 3
pursuant to this Agreement.
Unless earlier terminated by us, this Agreement shall terminate upon the
closing date of this offering. We may terminate this Agreement or any
provisions hereof at any time by written or telegraphic notice to you. Of
course, our obligations hereunder are subject to the successful completion of
the offering.
You agree that at any time or times prior to the termination of this
Agreement you will, upon our request, report to us the number of Shares sold on
behalf of the Company by you under this Agreement.
Upon application to us, we will inform you as to the states in which we
believe the Shares has been qualified for sale under, or are exempt from the
requirements of, the respective blue sky laws of such states, but we assume no
responsibility or obligation as to your rights to sell Shares in any state.
Additional copies of the Prospectus and any supplements thereto will be
supplied in reasonable quantities upon request.
Any notice from us to you shall be deemed to have been duly given if
mailed, telephoned, or telegraphed to you at the address to which this
Agreement is mailed.
This Agreement shall be construed in accordance with the laws of the State
of Illinois.
Please confirm your agreement hereto by signing and returning the
confirmation accompanying this letter at once to us at EVEREN Securities, Inc.,
00 Xxxx Xxxxxx Xxxxx, Xxxxxxx, Xxxxxxxx 00000-0000. The enclosed duplicate
copy will evidence the agreement between us.
Sincerely,
EVEREN SECURITIES, INC.
By:________________________________
33
[SELECTED DEALER]
[ ] [ ], 1997
Page 4
CONFIRMATION:
We hereby confirm our agreement to participate in the solicitation of
purchase orders for Shares upon the terms and conditions set forth herein and
certify that we are a member in good standing of the National Association of
Securities Dealers, Inc.
[SELECTED DEALER]
By:____________________
Date: [ ] [ ], 1997
