Exhibit 1.1
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1,000,000 Shares(1)
Wintrust Financial Corporation
Common Stock
(Without Par Value)
EQUITY UNDERWRITING AGREEMENT
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June __, 2002
RBC Xxxx Xxxxxxxx Inc.
As the Representative of the several
Underwriters named in Schedule I hereto
c/o RBC Capital Markets
00 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000
Ladies and Gentlemen:
Wintrust Financial Corporation, an Illinois corporation (the
"Company"), proposes to sell to the several underwriters (the "Underwriters")
named in Schedule I hereto for whom you are acting as representative (the
"Representative") an aggregate of 1,000,000 shares (the "Firm Shares") of the
Company's common stock, without par value, together with each associated
preferred share purchase right under the Rights Agreement, dated as of July 28,
1998, between the Company and Illinois Stock Transfer Company, as Rights Agent
(the "Common Stock"). The respective amounts of the Firm Shares to be so
purchased by the several Underwriters are set forth opposite their names in
Schedule I hereto. The Company also proposes to sell at the Underwriters' option
an aggregate of up to 150,000 additional shares (the "Option Shares") of Common
Stock as set forth below.
As the Representative, you have advised the Company that (a) you are
authorized to enter into this Agreement on behalf of the several Underwriters
and (b) the several Underwriters are willing, acting severally and not jointly,
to purchase the numbers of Firm Shares set forth opposite their respective names
in Schedule I, plus their pro rata portion of the Option Shares if you elect to
exercise the over-allotment option in whole or in part for the accounts of the
several Underwriters. The Firm Shares and the Option Shares (to the extent the
aforementioned option is exercised) are herein collectively called the "Shares."
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1 Plus an option to purchase up to 150,000 additional shares to cover
over-allotments.
In consideration of the mutual agreements contained herein and of the
interests of the parties in the transactions contemplated hereby, the parties
hereto agree as follows:
1. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
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The Company represents and warrants to each of the
Underwriters as follows:
(a) The Company meets the requirements for use of
Form S-3 and a registration statement (Registration No.
333-_______) on Form S-3, as amended, relating to the Shares,
including a preliminary prospectus and such amendments to such
registration statement as may have been required to the date
of this Agreement, has been prepared by the Company under the
provisions of the Securities Act of 1933 (the "Act"), and the
rules and regulations (collectively referred to as the "Rules
and Regulations") of the Securities and Exchange Commission
(the "Commission") thereunder, and has been filed with the
Commission. The term "Preliminary Prospectus" as used herein
means a preliminary prospectus as contemplated by Rule 430 or
Rule 430A ("Rule 430A") of the Rules and Regulations included
at any time as part of the registration statement. Copies of
such registration statement, including any amendments thereto,
any Preliminary Prospectus (meeting the requirements of the
Rules and Regulations) contained therein and the exhibits,
financial statements and schedules, as finally amended and
revised, have heretofore been delivered by the Company to you.
The term "Registration Statement" means the registration
statement described above, as amended at the time it became
effective (the "Effective Date"), including financial
statements and all exhibits and any information deemed to be
included by Rule 430A or Rule 434 of the Rules and
Regulations. If the Company files a registration statement to
register a portion of the Shares and relies on Rule 462(b) of
the Rules and Regulations for such registration statement to
become effective upon filing with the Commission (the "Rule
462 Registration Statement"), then any reference to the
"Registration Statement" shall be deemed to include the Rule
462 Registration Statement, as amended from time to time. The
term "Prospectus" means the form of prospectus first filed
with the Commission pursuant to Rule 424(b) of the Rules and
Regulations. Any reference herein to the Registration
Statement, any Preliminary Prospectus or the Prospectus shall
be deemed to refer to and include the documents incorporated
or deemed to be incorporated by reference therein pursuant to
Item 12 of Form S-3 that were filed under the Securities
Exchange Act of 1934 (the "Exchange Act"), on or before the
Effective Date or the date of such Preliminary Prospectus or
the Prospectus, as the case may be. All references in this
Agreement to the Registration Statement, any Preliminary
Prospectus or the Prospectus, or any amendments or supplements
to the foregoing, shall include the copy thereof filed with
the Commission pursuant to its Electronic Data Gathering,
Analysis and Retrieval System ("XXXXX"). Any reference herein
to the terms "amend," "amendment" or "supplement" with respect
to the Registration Statement, any Preliminary Prospectus or
the Prospectus shall be deemed to refer to and include the
filing of any document under the Exchange Act after the
Effective Date, or the date of any Preliminary Prospectus or
the
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Prospectus, as the case may be, and deemed to be incorporated
therein by reference.
(b) The Commission has not issued an order preventing
or suspending the use of any Prospectus relating to the
proposed offering of the Shares nor instituted proceedings for
that purpose. The Registration Statement contains, and the
Prospectus and any amendments or supplements thereto will
contain, all statements that are required to be stated therein
by, and will conform to, the requirements of the Act and the
Rules and Regulations. On the Effective Date, the date the
Prospectus is first filed with the Commission pursuant to Rule
424(b) of the Rules and Regulations, at all times subsequent
to and including the Closing Date and when any post-effective
amendment to the Registration Statement becomes effective or
any amendment or supplement to the Prospectus is filed with
the Commission, the Registration Statement and the Prospectus
(as amended or as supplemented if the Company shall have filed
with the Commission any amendment or supplement thereto),
including the financial statements included or incorporated by
reference in the Prospectus, did or will comply with all
applicable provisions of the Act, the Exchange Act, the rules
and regulations thereunder (the "Exchange Act Rules and
Regulations") and the Rules and Regulations and will contain
all statements required to be stated therein in accordance
with the Act, the Rules and Regulations, the Exchange Act and
the Exchange Act Rules and Regulations. Any Preliminary
Prospectus and the Prospectus filed by electronic transmission
by XXXXX (except as may be permitted by Regulation S-T under
the Act) were identical to the copies thereof delivered to the
Underwriters for use in connection with the offer and sale of
the Shares. On the Effective Date and when any post-effective
amendment to the Registration Statement becomes effective, no
part of the Registration Statement or any such amendment did
or will contain any untrue statement of a material fact or
omit to state a material fact required to be stated therein or
necessary in order to make the statements therein not
misleading. Any Preliminary Prospectus, as of its date, and
the Prospectus, as amended or supplemented, as of its date and
at all subsequent times through the 30th day after the date
hereof, did not or will not contain any untrue statement of
material fact or omit to state a material fact necessary to
make the statements therein, in the light of the circumstances
under which they were made, not misleading. The foregoing
representations and warranties in this Section 1(b) do not
apply to any statements or omissions made in reliance on and
in conformity with information relating to the Underwriters
furnished in writing to the Company by the Underwriters
specifically for inclusion in the Registration Statement or
Prospectus or any amendment or supplement thereto. For all
purposes of this Agreement, the amounts of the selling
concession and reallowance set forth in the Prospectus
constitute the only information relating to the Underwriters
furnished in writing to the Company by the Underwriters
specifically for inclusion in the Registration Statement or
the Prospectus. There are no contracts or documents that are
required to be filed as exhibits to the Registration Statement
or described in the Registration Statement or the Prospectus
that are not so filed or described as required, and such
contracts and documents as are summarized in the Registration
Statement or the Prospectus are fairly summarized in all
material respects.
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(c) The documents that are incorporated by reference in
the Prospectus or from which information is so incorporated by
reference, when they became effective or were filed with the
Commission, as the case may be, complied in all material
respects with the requirements of the Act, the Rules and
Regulations, the Exchange Act and the Exchange Act Rules and
Regulations; and any documents so filed and incorporated by
reference subsequent to the date hereof shall, when they are
filed with the Commission, conform in all material respects
with the requirements of the Act, the Rules and Regulations,
the Exchange Act and the Exchange Act Rules and Regulations.
(d) This Agreement has been duly authorized, executed and
delivered by the Company, and constitutes a valid, legal and
binding obligation of the Company, enforceable in accordance
with its terms, except as rights to indemnity hereunder may be
limited by Federal or state securities laws and except as such
enforceability may be limited by bankruptcy, insolvency,
reorganization or similar laws affecting the rights of
creditors generally, and subject to general principles of
equity. The Company has full power and authority to enter into
this Agreement and to authorize, issue and sell the Shares as
contemplated by this Agreement.
(e) The Company is duly organized, validly existing
and in good standing under the laws of the State of Illinois,
with full corporate and other power and authority to own,
lease and operate its properties and conduct its business as
described in and contemplated by the Registration Statement
and the Prospectus and as currently being conducted and is
duly registered as a financial holding company under the Bank
Holding Company Act of 1956, as amended (the "BHC Act"). The
Company has 17 direct or indirect subsidiaries that have
material ongoing operations (the "Subsidiaries"). The
Subsidiaries are listed on Exhibit A attached hereto and
incorporated herein. The Company does not own or control,
directly or indirectly, more than 5% of any class of equity
security of any corporation, association or other entity other
than the Subsidiaries listed on Exhibit A. Lake Forest Bank
and Trust Company, Hinsdale Bank and Trust Company, North
Shore Community Bank and Trust Company, Libertyville Bank and
Trust Company, Barrington Bank and Trust Company, N.A.,
Crystal Lake Bank and Trust Company, N.A. and Northbrook Bank
and Trust Company are collectively referred to as the "Banks."
Each of the Subsidiaries is a state bank, trust company,
corporation, limited liability company or national banking
association duly incorporated or organized (as the case may
be), validly existing and in good standing under the laws of
its respective jurisdiction of incorporation or organization
(as the case may be). Each of the Subsidiaries has full
corporate or other power and authority to own, lease and
operate its properties and to conduct its business as
described in and contemplated by the Registration Statement
and the Prospectus and as currently being conducted. The
deposit accounts of each Bank are insured by the Bank
Insurance Fund administered by the Federal Deposit Insurance
Corporation (the "FDIC") up to the maximum amount provided by
law; and no proceedings for the modification, termination or
revocation of any such insurance are pending or, to the
knowledge of the
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Company, threatened. Each of the Company and the Subsidiaries
is duly qualified to transact business as a foreign entity and
is in good standing in each other jurisdiction in which it
owns or leases real property or in which the conduct of its
business makes such qualification necessary and in which the
failure to so qualify would, individually or in the aggregate,
have a material adverse effect on the general affairs,
condition (financial or otherwise), business, key personnel,
property, prospects, net worth, earnings or results of
operations of the Company and the Subsidiaries on a
consolidated basis, whether or not arising from transactions
in the ordinary course of business (a "Material Adverse
Effect"). All of the issued and outstanding shares of capital
stock of or other equity interests in the Subsidiaries (A)
have been duly authorized and are validly issued, (B) are
fully paid and nonassessable except to the extent such shares
may be deemed assessable under 12 U.S.C. Section 55 or 12
U.S.C. Section 1831o or under applicable state banking law and
(C) except as disclosed in the Prospectus, are directly owned
by the Company free and clear of any security interest,
mortgage, pledge, lien, encumbrance, restriction upon voting
or transfer, preemptive rights, claim or equity.
(f) Subsequent to the respective dates as of which
information is given in the Registration Statement and the
Prospectus, neither the Company nor any of the Subsidiaries
has incurred any material liabilities or obligations, direct
or contingent, or entered into any material transactions, or
declared or paid any dividends or made any distribution of any
kind with respect to its capital stock; and there has not been
any change in the capital stock (other than a change in the
number of outstanding shares of Common Stock due to the
issuance of shares upon the exercise of outstanding options or
warrants), or any material change in the short-term or
long-term debt, or any issuance of options, warrants,
convertible securities or other rights to purchase the capital
stock, of the Company or any of the Subsidiaries, or any
Material Adverse Effect, or any development involving a
prospective Material Adverse Effect.
(g) The outstanding shares of Common Stock have been
duly authorized and validly issued and are fully paid and
non-assessable; the Shares to be issued and sold by the
Company have been duly authorized and when issued and paid for
as contemplated herein will be validly issued, fully paid and
non-assessable; and no preemptive rights of shareholders exist
with respect to any of the Shares or the issue and sale
thereof. Neither the filing of the Registration Statement nor
the offering or sale of the Shares as contemplated by this
Agreement gives rise to any rights, other than those that have
been waived, for or relating to the registration of any shares
of Common Stock.
(h) The information set forth under the caption
"Capitalization" in the Prospectus is true and correct. All of
the Shares conform to the description thereof contained in the
Registration Statement. The form of certificates for the
Shares conforms to the corporate law of the jurisdiction of
the Company's incorporation. Immediately after the issuance
and sale of the Shares to the Underwriters, no shares of the
Company's preferred stock, without par value (the
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"Preferred Stock"), shall be issued and outstanding and no
holder of any shares of capital stock, securities convertible
into or exchangeable or exercisable for capital stock or
options, warrants or other rights to purchase capital stock or
any other securities of the Company shall have any existing or
future right to acquire any shares of Preferred Stock. No
holders of securities of the Company have rights to the
registration of such securities under the Registration
Statement that have not been waived.
(i) The Company has not distributed and will not
distribute any prospectus or other offering material
(including, without limitation, content on the Company's
website that may be deemed to be a prospectus or other
offering material) in connection with the offering and sale of
the Shares other than any Preliminary Prospectus or the
Prospectus or other materials permitted by the Act to be
distributed by the Company.
(j) The consolidated financial statements of the
Company and the Subsidiaries, together with related notes and
schedules as set forth or incorporated by reference in the
Registration Statement, present fairly the financial position
and the results of operations and cash flows of the Company
and its consolidated Subsidiaries, at the indicated dates and
for the indicated periods. Such financial statements and
related schedules have been prepared in accordance with U.S.
generally accepted principles of accounting, consistently
applied throughout the periods involved, except as disclosed
therein, and all adjustments necessary for a fair presentation
of results for such periods have been made. The summary
financial and statistical data included or incorporated by
reference in the Registration Statement presents fairly the
information shown therein and such data has been compiled on a
basis consistent with the financial statements presented
therein and the books and records of the Company. There are no
pro forma financial statements or other pro forma financial
information required to be included or incorporated by
reference in the Registration Statement or the Prospectus. No
other financial statements or schedules of the Company are
required by the Act, the Rules and Regulations, the Exchange
Act or the Exchange Act Rules and Regulations to be included
or incorporated by reference in the Registration Statement or
the Prospectus.
(k) The Company maintains a system of internal
accounting controls sufficient to provide reasonable
assurances that (i) transactions are executed in accordance
with management's general or specific authorization; (ii)
transactions are recorded as necessary to permit preparation
of financial statements in conformity with generally accepted
accounting principles and to maintain accountability for
assets; (iii) access to assets is permitted only in accordance
with management's general or specific authorization; and (iv)
the recorded accountability for assets is compared with
existing assets at reasonable intervals and appropriate action
is taken with respect to any differences.
(l) Ernst & Young LLP, which has certified certain
financial statements of the Company and delivered its opinion
with respect to the audited financial
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statements and schedules included in the Registration
Statement and the Prospectus, are independent public
accountants with respect to the Company within the meaning of
the Act and the Rules and Regulations.
(m) There is no action, suit, claim or proceeding pending
or, to the knowledge of the Company, threatened against the
Company or any of the Subsidiaries before any court or
administrative agency or otherwise that if determined
adversely to the Company or any of its Subsidiaries might have
a Material Adverse Effect or prevent the consummation of the
transactions contemplated hereby, except as set forth in the
Registration Statement and the Prospectus.
(n) No labor problem or dispute with the employees of the
Company or the Subsidiaries exists or, to the Company's
knowledge, is threatened or imminent, and the Company is not
aware of any existing or imminent labor disturbance by the
employees of any of its or its Subsidiaries' principal
suppliers, contractors or customers, that could have a
Material Adverse Effect.
(o) The Company and the Subsidiaries have good and
marketable title to all of the properties and assets reflected
in the financial statements (or as described in the
Registration Statement) hereinabove described, subject to no
lien, mortgage, pledge, charge or encumbrance of any kind
except those reflected in such financial statements (or as
described in the Registration Statement) or that are not
material in amount. The Company and the Subsidiaries occupy
their leased properties under valid and binding leases
conforming in all material respects to the description thereof
set forth in the Registration Statement and the Prospectus.
(p) The Company and the Subsidiaries have filed all
Federal, state, local and foreign tax returns that have been
required to be filed and have paid all taxes indicated by said
returns and all assessments received by them or any of them to
the extent that such taxes have become due and are not being
contested in good faith and for which an adequate reserve for
accrual has been established in accordance with U.S. generally
accepted accounting principles. All tax liabilities have been
adequately provided for in the financial statements of the
Company, and the Company does not know of any actual or
proposed additional material tax assessments. There are no
transfer taxes or other similar fees or charges under Federal
law or the laws of any state, or any political subdivision
thereof, required to be paid in connection with the execution
and delivery of this Agreement or the issuance by the Company
or sale by the Company of the Shares.
(q) Since the respective dates as of which
information is given in the Registration Statement and the
Prospectus, there has not been any material adverse change or
any development involving a prospective change that has had or
is reasonably likely to have a Material Adverse Effect,
whether or not occurring in the ordinary course of business,
and there has not been any material transaction entered into
or any material transaction that is probable of being entered
into by the Company or the Subsidiaries, other than
transactions in the ordinary course of business and changes
and transactions described in the
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Registration Statement and the Prospectus, as it may be
amended or supplemented. The Company and the Subsidiaries have
no material contingent obligations that are not disclosed in
the Company's financial statements in the Registration
Statement and the Prospectus.
(r) Neither the Company nor any of the Subsidiaries
is or, with the giving of notice or lapse of time or both,
will be in violation of or in default under (i) any agreement,
lease, contract, indenture or other instrument or obligation
to which it is a party or by which it, or any of its
properties, is bound and which default has had or is
reasonably likely to have a Material Adverse Effect or (ii)
its Articles of Incorporation ("Charter"), By-laws or other
similar organizational instrument. The execution and delivery
of this Agreement and the consummation of the transactions
herein contemplated and the fulfillment of the terms hereof
will not conflict with or result in a breach of any of the
terms or provisions of, or constitute a default under, any
contract, indenture, mortgage, deed of trust or other
agreement or instrument to which the Company or any of the
Subsidiaries is a party, or the Charter or By-laws of the
Company or any order, rule or regulation applicable to the
Company or any of the Subsidiaries of any court or of any
regulatory body or administrative agency or other governmental
body having jurisdiction.
(s) Each approval, consent, order, authorization,
designation, declaration or filing by or with any regulatory,
administrative or other governmental body necessary in
connection with the execution and delivery by the Company of
this Agreement and the consummation of the transactions herein
contemplated (except such additional steps as may be required
by the National Association of Securities Dealers, Inc. (the
"NASD") or such additional steps as may be necessary to
qualify the Shares for public offering by the Underwriters
under state securities or Blue Sky laws) has been obtained or
made and is in full force and effect.
(t) The Company and each of the Subsidiaries have
all material licenses, certifications, permits, franchises,
approvals, clearances and other regulatory authorizations
("Permits") from governmental authorities as are necessary to
conduct their businesses as currently conducted and to own,
lease and operate its properties in the manner described in
the Prospectus. There is no claim, proceeding or controversy,
pending or, to the knowledge of the Company or any of the
Subsidiaries, threatened, involving the status of or sanctions
under any of the Permits. The Company and each of the
Subsidiaries have fulfilled and performed all of their
material obligations with respect to the Permits, and no event
has occurred that allows, or after notice or lapse of time
would allow, the revocation, termination, modification or
other impairment of the rights of the Company or any of the
Subsidiaries under such Permit. None of the Permits contains
any restriction that is materially burdensome on the Company
or any of its Subsidiaries.
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(u) To the Company's knowledge, there are no affiliations
or associations between any member of the NASD and any of the
Company's officers, directors or 5% or greater
securityholders, except as set forth in the Registration
Statement.
(v) Neither the Company, nor to the Company's knowledge,
any of its affiliates, has taken or may take, directly or
indirectly, any action designed to cause or result in, or that
has constituted or that might reasonably be expected to
constitute, the stabilization or manipulation of the price of
the shares of Common Stock to facilitate the sale or resale of
the Shares. The Company acknowledges that the Underwriters may
engage in passive market making transactions in the Shares on
the Nasdaq National Market in accordance with Regulation M
under the Exchange Act.
(w) Neither the Company nor any of the Subsidiaries is,
nor will be after receipt of payment for the Shares, an
"investment company" or an entity "controlled" by an
"investment company" within the meaning of such term under the
Investment Company Act of 1940, as amended (the "Investment
Company Act"), and the rules and regulations of the Commission
thereunder. The Company and the Subsidiaries will conduct
their businesses in a manner so that they will not become
subject to the Investment Company Act.
(x) The Company and each of the Subsidiaries carry,
or are covered by, insurance in such amounts and covering such
risks as is adequate for the conduct of their respective
businesses and the value of their respective properties and as
is customary for companies engaged in similar businesses. All
policies of insurance insuring the Company or any Subsidiary
or any of their respective businesses, assets, employees,
officers and directors are in full force and effect, and the
Company and the Subsidiaries are in compliance with the terms
of such policies in all material respects. There are no claims
by the Company or any Subsidiary under any such policy or
instrument as to which an insurance company is denying
liability or defending under a reservation of rights clause.
(y) The Company is in compliance in all material
respects with all presently applicable provisions of the
Employee Retirement Income Security Act of 1974, as amended,
including the regulations and published interpretations
thereunder ("ERISA"); no "reportable event" (as defined in
ERISA) has occurred with respect to any "pension plan" (as
defined in ERISA) for which the Company would have any
liability; the Company has not incurred and does not expect to
incur liability under (i) Title IV of ERISA with respect to
termination of, or withdrawal from, any "pension plan" or (ii)
Sections 412 or 4971 of the Internal Revenue Code of 1986, as
amended, including the regulations and published
interpretations thereunder (the "Code"); and each "pension
plan" for which the Company would have any liability that is
intended to be qualified under Section 401(a) of the Code is
so qualified in all material respects and nothing has
occurred, whether by action or by failure to act, that would
cause the loss of such qualification.
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(z) Other than as contemplated by this Agreement, the
Company has not incurred any liability for any finder's or
broker's fee, or agent's commission, in connection with the
execution and delivery of this Agreement or the consummation
of the transactions contemplated hereby.
(aa) Neither the Company nor any of the Subsidiaries has
sent or received any notice indicating the termination of or
intention to terminate any of the contracts or agreements
referred to or described in the Registration Statement or the
Prospectus, or filed as an exhibit to the Registration
Statement, and no such termination has been threatened by the
Company, any Subsidiary or any other party to any such
contract or agreement.
(bb) Neither the Company nor any Subsidiary is in
violation of any statute, rule, regulation, decision or order
of any governmental agency or body or any court, domestic or
foreign, relating to the use, disposal or release of hazardous
chemicals, toxic substances or radioactive and biological
materials or relating to the protection or restoration of the
environment or human exposure to hazardous chemicals, toxic
substances or radioactive and biological materials
(collectively, "Environmental Laws"). Neither the Company nor
any of the Subsidiaries owns or operates any real property
contaminated with any substance that is subject to any
Environmental Laws, is liable for any off-site disposal or
contamination pursuant to any Environmental Laws or is subject
to any claim relating to any Environmental Laws, which
violation, contamination, liability or claim would
individually or in the aggregate have a Material Adverse
Effect; and the Company is not aware of any pending
investigation that might lead to such a claim.
(cc) No payments or inducements have been made or
given, directly or indirectly, to any Federal or local
official or candidate for, any Federal or state office in the
United States or foreign offices by the Company or any
Subsidiary, by any of their officers, directors, employees or
agents or, to the knowledge of the Company, by any other
person in connection with any opportunity, contract, permit,
certificate, consent, order, approval, waiver or other
authorization relating to the business of the Company or any
Subsidiary, except for such payments or inducements as were
lawful under applicable laws, rules and regulations. Neither
the Company nor any Subsidiary, nor, to the best knowledge of
the Company, any director, officer, agent, employee or other
person associated with or acting on behalf of the Company or
any Subsidiary, (i) has used any corporate funds for any
unlawful contribution, gift, entertainment or other unlawful
expense relating to political activity; (ii) made any direct
or indirect unlawful payment to any government official or
employee from corporate funds; (iii) violated or is in
violation of any provision of the Foreign Corrupt Practices
Act of 1977; or (iv) made any bribe, unlawful rebate, payoff,
influence payment, kickback or other unlawful payment in
connection with the businesses of the Company or any
Subsidiary.
(dd) The Company and each of the Subsidiaries own or
possess all patents, patent applications, trademarks, service
marks, tradenames, trademark
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registrations, service xxxx registrations, copyrights,
licenses, inventions, trade secrets and rights necessary for
the conduct of the businesses of the Company and the
Subsidiaries as currently carried on, including as described
in the Registration Statement and Prospectus; no name that the
Company or any of the Subsidiaries uses and no other aspect of
the businesses of the Company or any of the Subsidiaries will
involve or give rise to any infringement of, or license or
similar fees for, any patents, patent applications,
trademarks, service marks, tradenames, trademark
registrations, service xxxx registrations, copyrights,
licenses, inventions, trade secrets or other similar rights of
others material to the business or prospects of the Company
and neither the Company nor any of the Subsidiaries has
received any notice alleging any such infringement or fee.
(ee) The conduct of business by the Company and each of
the Subsidiaries complies, and at all times has complied, in
all material respects with Federal, state, local and foreign
laws, statutes, ordinances, rules, regulations, decrees,
orders, Permits and other similar items ("Laws") applicable to
their businesses, including, without limitation, licensing and
certification Laws covering any aspect of the businesses of
the Company or any of the Subsidiaries. Neither the Company
nor any of the Subsidiaries has received any notification
asserting, or has knowledge of, any present or past failure to
comply with or violation of any such Laws.
(ff) The activities of the Company and the Subsidiaries
are permitted under applicable Federal and state banking laws
and regulations. First Insurance Funding Corp., a Subsidiary
of the Company, is validly licensed by the Illinois Department
of Financial Institutions and in all other jurisdictions in
which the conduct of its business requires license or
qualification. The Company has all necessary approvals,
including the approval of the Office of the Comptroller of
Currency (the "OCC"), the Illinois Office of Banks and Real
Estate (the "OBRE") and the Board of Governors of the Federal
Reserve System, as applicable, to own the capital stock of its
subsidiaries. Neither the Company nor any of the Subsidiaries
is a party or subject to any agreement or memorandum with, or
directive or other order issued by, the Board of Governors of
the Federal Reserve System, the OCC, the OBRE, the FDIC or
other regulatory authority having jurisdiction over it (each,
a "Regulator" and, collectively, the "Regulators"), which
imposes any restrictions or requirements not generally
applicable to entities of the same type as the Company and the
Subsidiaries. Neither the Company nor any of the Subsidiaries
is subject to any directive from any Regulator to make any
material change in the method of conducting their respective
businesses, and no such directive is pending or threatened by
such Regulators.
(gg) Each of the Company and the Subsidiaries has
properly administered all accounts for which any of them acts
as a fiduciary, including but not limited to accounts for
which any of them serves as a trustee, agent, custodian,
personal representative, guardian, conservator or investment
advisor, in accordance with the terms of the governing
documents and applicable state and Federal law and regulation
and common law, except where the failure to be in compliance
would
11
not have a Material Adverse Effect. None of the Company, the
Subsidiaries or any of their respective directors, officers or
employees has committed any material breach of trust with
respect to any such fiduciary account, and the accountings for
each such fiduciary account are true and correct in all
material respects and accurately reflect the assets of such
fiduciary account in all material respects.
(hh) Each agreement under which the Company and the
Subsidiaries, including, without limitation, Xxxxx Xxxxxx
Management Company ("WHMC"), provides investment advisory
service to any person that is subject to Section 15 of the
Investment Company Act has been duly approved at all times in
compliance in all material respects with Section 15 of the
Investment Company Act and applicable Law. Each such
investment advisory contract has been performed in accordance
with the Investment Company Act and, except where the failure,
either individually or in the aggregate, would not have a
Material Adverse Effect, any other applicable Law.
(ii) WHMC is duly registered as an investment adviser
with the Commission under the Investment Advisers Act of 1940,
as amended (the "Investment Advisors Act"). Each investment
advisory representative of WHMC is duly licensed, registered
or qualified in each state in which such licensing,
registration or qualification is required by virtue of the
activities of such person. WHMC has made such notice filings
with such states as are required by state law, except where
such failure would not have a Material Adverse Effect. Each of
Xxxxx Xxxxxx Investments LLC, a Subsidiary of the Company
("WHI"), and Focus Investments, LLC, a Subsidiary of the
Company ("Focus"), is duly registered as a broker-dealer with
the Commission under the Exchange Act and with each state
agency pursuant to which each such entity is required to be
registered by virtue of the conduct of its business. Each
associated person of WHI and Focus is duly licensed,
registered or qualified in each state in which such licensing,
registration or qualification is required by virtue of the
activities of such person, except where such failure, either
individually or in the aggregate, would not have a Material
Adverse Effect. WHI is a member in good standing of the New
York Stock Exchange, Inc. ("NYSE"), the NASD, the Chicago
Stock Exchange, Incorporated ("CHX") and the American Stock
Exchange, Inc. ("AMEX"). Focus is a member in good standing of
the NASD. Other than WHI and Focus, no Subsidiary is
registered as, or required to be registered as, an investment
adviser or a broker-dealer with the Commission or any
applicable state regulatory agency. Each of WHMC, WHI and
Focus has timely filed all forms, reports, registration
statements, schedules and other documents, together with any
amendments required to be made with respect thereto, that were
required to be filed with any Federal, state or securities
self-regulatory organization, including, without limitation,
the Commission, NYSE, NASD, CHX and AMEX, and has paid all
fees and assessments due and payable in connection therewith,
except where such failure, either individually or in the
aggregate, would not have a Material Adverse Effect. As of
their respective dates, all forms, reports, registration
statements, schedules or other filings made by each of WHMC,
WHI and Focus with Federal,
12
state or securities self-regulatory organizations or
authorities complied in all material respects with the
applicable requirements of Federal and state securities laws
and the rules and regulations of such securities
self-regulatory organizations or authorities. None of such
filings, as of their respective dates, contained any untrue
statement of a material fact or omitted to state a material
fact required to be stated therein or necessary in order to
make the statements therein, in the light of the circumstances
under which they were made, not misleading. None of WHMC, WHI
or Focus or any other affiliate of the Company (other than the
WH Funds (as defined below)) is required to be registered as
an investment company with the Commission under the Investment
Company Act. WHMC is the investment adviser to the Xxxxx
Xxxxxx Money Market Fund, the Xxxxx Xxxxxx Growth Fund, Xxxxx
Xxxxxx Income Fund and the Xxxxx Xxxxxx CorePortfolio Fund
(collectively, the "WH Funds"), each of which is a portfolio
of the Xxxxx Xxxxxx Investment Trust, which is registered as
an investment company with the Commission under the Investment
Company Act. Except as set forth in the preceding sentence, to
the knowledge of the Company, no person to which WHMC, WHI and
Focus provide investment advisory services is required to
register as an investment company under the Investment Company
Act. Except for (i) the registrations described herein and
(ii) the registrations of offerings by the WH Funds under the
Act described herein, the business activities of WHMC, WHI and
Focus and their respective employees (acting in their
capacities as such), as presently and heretofore conducted, do
not require any registrations under the Act, the Exchange Act
or state securities law. With respect to investment advisory
contracts involving employee benefit plans, WHMC has complied
in all material respects with requirements imposed on
investment managers to employee benefit plans under ERISA.
WHMC has maintained during all relevant periods fiduciary
insurance. WHMC, WHI and Focus, their respective directors or
managers, officers and employees (in their capacities as such)
have each obtained, and there are in full force and effect,
all licenses, permits, registrations, certifications,
consents, approvals, and other authorizations of all
governmental authorities and securities self-regulatory
organizations of which WHMC, WHI and Focus are members,
required under the securities, commodities, investment
management, investment advisory, or similar laws of the United
States and the laws of any state applicable to WHMC, WHI and
Focus by virtue of their business activities, except in the
case of WHMC's, WHI's and Focus' respective directors or
managers, officers and employees (in their capacities as such)
where the failure of such persons to obtain such licenses,
permits, registrations, certifications, consents, approvals or
other authorizations, either individually or in the aggregate,
would not have a Material Adverse Effect.
(jj) The WH Funds are all of the investment companies,
whether registered or unregistered pursuant to the Investment
Company Act, or series thereof, for which WHMC acts as
investment adviser, subadviser or distributor. Since January
1, 1997, none of WHMC, WHI or Focus has sponsored or
participated in the distribution by public or private offering
of any interests in any persons other than the WH Funds. The
WH Funds have timely filed all forms, reports, registration
statements, schedules and other documents, together with any
amendments
13
required to be made with respect thereto, that were required
to be filed with any Federal, state or securities
self-regulatory organization, including, without limitation,
the Commission, NYSE, NASD, CHX, AMEX or any of their
affiliates, and have paid all fees and assessments due and
payable in connection therewith, except where such failure,
either individually or in the aggregate, would not have a
Material Adverse Effect. All information provided in writing
by WHMC expressly for use in (i) the offering documents with
respect to offerings and sales of the interests in the WH
Funds and (ii) all forms, reports, registration statements,
schedules or other filings made by WHMC with Federal, state or
securities self-regulatory organizations, complied in all
material respects with the applicable requirements of Federal
and state securities laws and the rules and regulations of
such self-regulatory organizations. None of such filings, as
of their respective dates, contained any untrue statement of a
material fact or omitted to state a material fact required to
be stated therein or necessary in order to make the statements
therein, in the light of the circumstances under which they
were made, not misleading. WHMC has received no notice from
any governmental authority or securities self-regulatory
organization advising WHMC of the initiation of any
administrative proceeding or investigation into or related to
the business or operations of any of the WH Funds. To the
knowledge of the Company, there is no unresolved violation,
criticism or exception made in writing by any governmental
authority with respect to any report or statement by such
governmental authority or securities self-regulatory
organization related to any examination of the WH Funds.
(kk) WHMC has performed in all material respects all of
its duties as a fiduciary under the Investment Advisers Act,
pursuant to the requirements of the Investment Company Act and
pursuant to any applicable requirement of ERISA, and has
complied in all material respects, in its capacity as a
fiduciary, with all applicable Laws, orders, agreements and
instruments.
(ll) Additional shares of Common Stock sufficient to
cover the Shares have been approved for quotation on the
Nasdaq National Market, subject to official notice of
issuance.
(mm) The statements contained in the Registration
Statement and the Prospectus regarding the Company's
expectations, plans and intentions, and any other statements
that constitute "forward-looking" information within the
meaning of the Securities Act and the Exchange Act, were made
by the Company on a reasonable basis and reflect the Company's
good faith belief or estimate of the matters described
therein.
(nn) Any certificate signed by any officer of the Company
and delivered to the Representative or counsel for the
Underwriters in connection with the offering of the Shares
contemplated hereby shall be deemed a representation and
warranty by the Company to each Underwriter and shall be
deemed to be a part of this Section 1 and incorporated herein
by reference.
14
2. PURCHASE, SALE AND DELIVERY OF THE FIRM SHARES.
----------------------------------------------
(a) On the basis of the representations, warranties and
covenants herein contained, and subject to the conditions
herein set forth, the Company agrees to sell to the
Underwriters and each Underwriter agrees, severally and not
jointly, to purchase, at a price of $_______ per share, the
number of Firm Shares set forth opposite the name of each
Underwriter in Schedule I hereof, subject to adjustments in
accordance with Section 9 hereof.
(b) Payment for the Firm Shares to be sold hereunder
is to be made in Federal funds (same day) against delivery of
certificates therefor to the Representative for the several
accounts of the Underwriters. Such payment and delivery are to
be made through the facilities of the Depository Trust
Company, New York, New York at 10:00 a.m., New York time, on
the third business day after the date of this Agreement or at
such other time and date not later than five business days
thereafter as you and the Company shall agree upon, such time
and date being herein referred to as the "Closing Date." As
used herein, "business day" means a day on which the NYSE is
open for trading and on which banks in New York are open for
business and are not permitted by law or executive order to be
closed.
(c) In addition, on the basis of the representations
and warranties herein contained and subject to the terms and
conditions herein set forth, the Company hereby grants an
option to the several Underwriters to purchase the Option
Shares at the price per share as set forth in the first
paragraph of this Section. The option granted hereby may be
exercised in whole or in part by giving written notice (i) at
any time before the Closing Date and (ii) only once thereafter
within 30 days after the date of this Agreement, by you, as
the Representative of the several Underwriters, to the Company
setting forth the number of Option Shares as to which the
several Underwriters are exercising the option, the names and
denominations in which the Option Shares are to be registered
and the time and date at which such certificates are to be
delivered. The time and date at which certificates for Option
Shares are to be delivered shall be determined by the
Representative but shall not be earlier than three nor later
than ten full business days after the exercise of such option,
nor in any event prior to the Closing Date (such time and date
being herein referred to as the "Option Closing Date"). If the
date of exercise of the option is three or more days before
the Closing Date, the notice of exercise shall set the Closing
Date as the Option Closing Date. The number of Option Shares
to be purchased by each Underwriter shall be in the same
proportion to the total number of Option Shares being
purchased as the number of Firm Shares being purchased by such
Underwriter bears to the total number of Firm Shares, adjusted
by you in such manner as to avoid fractional shares. The
option with respect to the Option Shares granted hereunder may
be exercised only to cover over-allotments in the sale of the
Firm Shares by the Underwriters. You, as the Representative of
the several Underwriters, may cancel such option at any time
prior to its expiration by giving written notice of such
cancellation to the Company. To the extent, if any, that the
option is exercised, payment for the Option Shares shall be
made on the Option Closing Date in
15
Federal funds (same day) through the facilities of the
Depository Trust Company in New York, New York drawn to the
order of the Company.
3. OFFERING BY THE UNDERWRITERS.
----------------------------
It is understood that the several Underwriters are to make a
public offering of the Firm Shares as soon as the Representative deems it
advisable to do so. The Firm Shares are to be initially offered to the public at
the initial public offering price set forth in the Prospectus. The
Representative may from time to time thereafter change the public offering price
and other selling terms. To the extent, if at all, that any Option Shares are
purchased pursuant to Section 2 hereof, the Underwriters will offer them to the
public on the foregoing terms.
It is further understood that you will act as the
Representative for the Underwriters in the offering and sale of the Shares in
accordance with a Master Agreement Among Underwriters entered into by you and
the several other Underwriters.
4. COVENANTS OF THE COMPANY.
------------------------
The Company covenants and agrees with the several Underwriters
as follows.
(a) The Company will (i) use its best efforts to cause
the Registration Statement to become effective or, if the
procedure in Rule 430A of the Rules and Regulations is
followed, to prepare and timely file with the Commission under
Rule 424(b) of the Rules and Regulations a Prospectus in a
form approved by the Representative containing information
previously omitted at the time of effectiveness of the
Registration Statement in reliance on Rule 430A of the Rules
and Regulations; (ii) not file any amendment to the
Registration Statement or supplement to the Prospectus of
which the Representative shall not previously have been
advised and furnished with a copy or to which the
Representative shall have reasonably objected in writing or
that is not in compliance with the Rules and Regulations; and
(iii) file on a timely basis all reports and any definitive
proxy or information statements required to be filed by the
Company with the Commission subsequent to the date of the
Prospectus and prior to the termination of the offering of the
Shares by the Underwriters.
(b) The Company will not take, directly or indirectly,
any action designed to cause or result in, or that has
constituted or might reasonably be expected to constitute, the
stabilization or manipulation of the price of any securities
of the Company.
(c) The Company will advise the Representative
promptly (i) when the Registration Statement or any
post-effective amendment thereto shall have become effective;
(ii) of receipt of any comments from the Commission; (iii) of
any request of the Commission for amendment of the
Registration Statement or for supplement to the Prospectus or
for any additional information; and (iv) of the issuance by
the Commission of any stop order suspending the effectiveness
of the Registration Statement or the use of the Prospectus or
of the institution of any proceedings for that purpose. The
Company will use its best efforts to prevent the
16
issuance of any such stop order preventing or suspending the
use of the Prospectus and to obtain as soon as possible the
lifting thereof, if issued.
(d) The Company will cooperate with the Representative
in endeavoring to qualify the Shares for sale under the
securities laws of such jurisdictions as the Representative
may reasonably have designated in writing and will make such
applications, file such documents and furnish such information
as may be reasonably required for that purpose, provided the
Company shall not be required to qualify as a foreign
corporation or to file a general consent to service of process
in any jurisdiction where it is not now so qualified or
required to file such a consent. The Company will, from time
to time, prepare and file such statements, reports and other
documents as are or may be required to continue such
qualifications in effect for so long a period as the
Representative may reasonably request for distribution of the
Shares.
(e) The Company will deliver to, or upon the order of,
the Representative, from time to time, as many copies of any
Preliminary Prospectus as the Representative may reasonably
request. The Company will deliver to, or upon the order of,
the Representative during the period when delivery of a
Prospectus is required under the Act as many copies of the
Prospectus in final form, or as thereafter amended or
supplemented, as the Representative may reasonably request.
The Company will deliver to the Representative at or before
the Closing Date, four signed copies of the Registration
Statement and all amendments thereto including all exhibits
filed therewith, and will deliver to the Representative such
number of copies of the Registration Statement (including such
number of copies of the exhibits filed therewith that may
reasonably be requested), and of all amendments thereto, as
the Representative may reasonably request.
(f) The Company will comply with the Act, the Rules
and Regulations, the Exchange Act and the Exchange Act Rules
and Regulations so as to permit the completion of the
distribution of the Shares as contemplated in this Agreement
and the Prospectus. If, during the period in which a
prospectus is required by law to be delivered by an
Underwriter or dealer, any event shall occur as a result of
which, in the judgment of the Company or in the reasonable
opinion of the Underwriters, it becomes necessary to amend or
supplement the Prospectus in order to make the statements
therein, in the light of the circumstances existing at the
time the Prospectus is delivered to a purchaser, not
misleading, or, if it is necessary at any time to amend or
supplement the Prospectus to comply with any law, the Company
promptly will prepare and file with the Commission an
appropriate amendment to the Registration Statement or
supplement to the Prospectus so that the Prospectus as so
amended or supplemented will not, in the light of the
circumstances when it is so delivered, be misleading, or so
that the Prospectus will comply with the law.
(g) The Company will make generally available to its
securityholders, as soon as it is practicable to do so, but in
any event not later than 15 months after the Effective Date,
an earning statement (which need not be audited) in reasonable
17
detail, covering a period of at least 12 consecutive months
beginning after the Effective Date, which earning statement
shall satisfy the requirements of Section 11(a) of the Act and
Rule 158 of the Rules and Regulations and will advise you in
writing when such statement has been so made available.
(h) Prior to the Closing Date, the Company will furnish
to the Underwriters, as soon as they have been prepared by or
are available to the Company, a copy of any unaudited interim
financial statements of the Company for any period subsequent
to the period covered by the most recent financial statements
appearing in the Registration Statement and the Prospectus.
(i) No offering, sale, short sale or other disposition
of any shares of Common Stock or other securities convertible
into or exchangeable or exercisable for shares of Common Stock
or derivative of Common Stock (or agreement for such) will be
made for a period of 90 days after the date of this Agreement,
directly or indirectly, by the Company otherwise than
hereunder or with the prior written consent of the
Representative; provided, however, that this provision will
not restrict the Company from awarding options to purchase its
Common Stock pursuant to employee benefit plans as described
in the Prospectus.
(j) The Company shall use its best efforts to obtain
approval for additional shares of Common Stock (such that all
of the Shares shall be quoted on or approved for quotation on
the Nasdaq National Market or in lieu thereof the NYSE or
another national securities exchange), and to remain so listed
for at least five years from the Effective Date or for such
shorter period as may be specified in a written consent of the
Representative.
(k) The Company has caused each executive officer and
director and certain principal shareholders of the Company to
furnish to you, on or prior to the date of this Agreement, a
letter or letters, in form and substance satisfactory to the
Representative, pursuant to which each such person shall agree
not to (and not to enter into any agreement to) offer, sell,
sell short or otherwise dispose of any shares of Common Stock
or other capital stock of the Company, or any other securities
convertible, exchangeable or exercisable for shares of Common
Stock or derivative of Common Stock, owned by such person or
request the registration for the offer or sale of any of the
foregoing (or as to which such person has the right to direct
the disposition of) for a period of 90 days after the date of
this Agreement, directly or indirectly, except with the prior
written consent of the Representative ("Lockup Agreements").
(l) The Company shall apply the net proceeds of the sale
of the Shares as described under the heading "Use of Proceeds"
in the Prospectus and shall report with the Commission with
respect to the sale of the Shares and the application of the
proceeds therefrom as may be required in accordance with Rule
463 under the Act.
18
(m) The Company shall not invest, or otherwise use the
proceeds received by the Company from the sale of the Shares,
in such a manner as would require the Company or any of the
Subsidiaries to register as an investment company under the
Investment Company Act.
(n) The Company will maintain a transfer agent and, if
necessary under the jurisdiction of incorporation of the
Company, a registrar for the Common Stock.
(o) Except as contemplated by the Prospectus and pursuant
to a publicly announced stock repurchase program to purchase
shares of Common Stock or pursuant to the Company's 1997 Stock
Incentive Plan, as amended, or the Company's Employee Stock
Purchase Plan, the Company shall not, for a period of 180 days
after the date hereof, without the prior written consent of
the Representative, purchase, redeem or call for redemption,
or prepay or give notice of prepayment (or announce any
redemption or call for redemption, or any repayment or notice
of prepayment) of any of the Company's securities.
(p) Prior to the Closing Date (and, if applicable, the
Option Closing Date), the Company will not issue any press
release or other communication directly or indirectly or hold
any press conference with respect to the Company, any of the
Subsidiaries or the offering of the Shares without your prior
written consent.
(q) The Company and the Subsidiaries shall conduct
their businesses in material compliance with all applicable
Federal and state laws, rules, regulations, decisions,
directives and orders (including, without limitation, the
applicable provisions of the Act, the Rules and Regulations,
the Exchange Act, the Exchange Act Rules and Regulations, the
Investment Company Act, the Investment Advisors Act, the BHC
Act, the National Bank Act, the Federal Deposit Insurance
Corporation Improvement Act, the Illinois General Corporation
Act, the Illinois banking laws and all decisions, directives
and orders of the FDIC, the OCC, the Illinois Banking
Commissioner, the Illinois Banking Board, the Board of
Governors of the Federal Reserve System, the Commission, the
NASD and the NYSE, CHX and AMEX, as applicable).
5. COSTS AND EXPENSES.
------------------
The Company will pay all costs, expenses and fees incident to
the performance of the obligations of the Company under this Agreement,
including, without limiting the generality of the foregoing, the following:
accounting fees of the Company; the fees and disbursements of counsel for the
Company; the cost of printing and delivering to, or as requested by, the
Underwriters copies of the Registration Statement, Preliminary Prospectuses, the
Prospectus, the Underwriters' Selling Memorandum and the Underwriters'
Invitation Letter, if any, the Listing Application, the Blue Sky Survey and any
supplements or amendments thereto; the filing fees of the Commission; the filing
fees and expenses (including legal fees and disbursements) incident to securing
any required review by the NASD of the terms of the sale of the Shares; any
listing fee of The Nasdaq Stock Market; and the expenses, including the fees and
disbursements of
19
counsel for the Underwriters up to a maximum amount of $5,000, incurred in
connection with the qualification of the Shares under state securities or Blue
Sky laws.
The Company shall not, however, be required to pay for any of
the Underwriters' expenses (other than those related to qualification under NASD
regulation and state securities or Blue Sky laws) except that, if this Agreement
shall not be consummated because the conditions in Section 6 hereof are not
satisfied, or because this Agreement is terminated by the Representative
pursuant to Section 11 hereof, or by reason of any failure, refusal or inability
on the part of the Company to perform any undertaking or satisfy any condition
of this Agreement or to comply with any of the terms hereof on its part to be
performed, unless such failure to satisfy said condition or to comply with said
terms shall be due to the default or omission of any Underwriter, then the
Company shall reimburse the several Underwriters for reasonable out-of-pocket
expenses, including all fees and disbursements of counsel, reasonably incurred
in connection with investigating, marketing and proposing to market the Shares
or in contemplation of performing their obligations hereunder; but the Company
shall not in any event be liable to any of the several Underwriters for damages
on account of loss of anticipated profits from the sale by them of the Shares.
6. CONDITIONS OF OBLIGATIONS OF THE UNDERWRITERS.
---------------------------------------------
The several obligations of the Underwriters to purchase the
Firm Shares on the Closing Date and the Option Shares, if any, on the Option
Closing Date are subject to the accuracy, as of the Closing Date and the Option
Closing Date, if any, of the representations and warranties of the Company
contained herein, and to the performance by the Company of its covenants and
obligations hereunder and to the following additional conditions.
(a) The Registration Statement and all post-effective
amendments thereto shall have become effective and any and all
filings required by Rule 424 and Rule 430A of the Rules and
Regulations shall have been made, and any request of the
Commission for additional information (to be included in the
Registration Statement or otherwise) shall have been disclosed
to the Representative and complied with to its reasonable
satisfaction. No stop order suspending the effectiveness of
the Registration Statement, as amended from time to time,
shall have been issued and no proceedings for that purpose
shall have been taken or, to the knowledge of the Company,
shall be contemplated by the Commission and no injunction,
restraining order or order of any nature by a Federal or state
court of competent jurisdiction shall have been issued as of
the Closing Date that would prevent the issuance of the
Shares.
(b) The Representative shall have received on the Closing
Date and the Option Closing Date, if any, the opinion of
Vedder, Price, Xxxxxxx & Kammholz, counsel for the Company,
each dated the Closing Date or the Option Closing Date, if
any, addressed to the Underwriters to the effect that:
(i) The Company has been duly incorporated
and is validly existing and in good standing under
the laws of the State of Illinois, and is duly
registered as a financial holding company under the
BHC Act. Each of the
20
Subsidiaries is validly existing and in good standing
under the laws of its jurisdiction of incorporation
or organization (as the case may be). Each of the
Company and the Subsidiaries has full corporate or
other power and authority to own or lease its
properties and to conduct its business as currently
being carried on and as described in the Registration
Statement and Prospectus, and is duly qualified to do
business as a foreign entity and is in good standing
in each jurisdiction in which it owns or leases real
property or in which the conduct of its business
makes such qualification necessary and in which the
failure to so qualify would have a Material Adverse
Effect.
(ii) The capital stock of the Company conforms
as to legal matters to the description thereof
contained in or incorporated by reference into the
Prospectus. All of the issued and outstanding shares
of capital stock of the Company have been duly
authorized and validly issued and are fully paid and
nonassessable, and the holders thereof are not
subject to personal liability by reason of being such
holders. The Shares to be issued and sold by the
Company hereunder have been duly authorized and, when
issued, delivered and paid for in accordance with the
terms of this Agreement, will have been validly
issued and will be fully paid and nonassessable, and
the holders thereof will not be subject to personal
liability by reason of being such holders. Except as
otherwise stated in the Registration Statement and
Prospectus, there are no preemptive rights or other
rights to subscribe for or to purchase, or any
restriction upon the voting or transfer of, any
shares of Common Stock pursuant to the Company's
Charter, By-laws or any agreement or other instrument
known to such counsel to which the Company is a party
or by which the Company is bound. Additional shares
of Common Stock sufficient to cover the Shares have
been approved for quotation on the Nasdaq National
Market subject to official notice of issuance. To the
best of such counsel's knowledge, neither the filing
of the Registration Statement nor the offering or
sale of the Securities as contemplated by this
Agreement gives rise to any rights for or relating to
the registration of any shares of Common Stock or
other securities of the Company.
(iii) To the best of such counsel's knowledge, all
outstanding shares of capital stock of or other
equity interests in the Subsidiaries have been duly
and validly authorized and issued and are fully paid
and nonassessable (except to the extent such shares
or interests may be deemed assessable under 12 U.S.C.
Xxxxxxx 00 xx 00 X.X.X. 0000x) and, to the best of
such counsel's knowledge, except as otherwise
described in the Registration Statement and the
Prospectus and except for directors' qualifying
shares, the Company owns of record and beneficially,
free and clear of any security interests, claims,
liens, proxies, equities or other encumbrances, all
of the issued and outstanding shares of such stock or
interests. To the best of such counsel's knowledge,
except as described in the Registration Statement and
the Prospectus or waived in writing, there are no
options,
21
warrants, agreements, contracts or other rights in
existence to purchase or acquire from the Company or
any Subsidiary any shares of the capital stock of or
other equity interests in the Company or any of the
Subsidiaries.
(iv) The Registration Statement has become
effective under the Act and, to the best of such
counsel's knowledge, no stop order suspending the
effectiveness of the Registration Statement has been
issued and no proceeding for that purpose has been
instituted or, to the knowledge of such counsel,
threatened by the Commission.
(v) The descriptions in the Registration
Statement and the Prospectus of statutes,
regulations, legal and governmental proceedings,
contracts and other documents are accurate and fairly
present the information required to be shown; and
such counsel does not know of any statutes,
regulations, legal or governmental proceedings or
contracts or other documents required to be described
in the Prospectus or included as exhibits to the
Registration Statement that are not described or
included as required.
(vi) The Company has full corporate power and
authority to enter into this Agreement, and this
Agreement has been duly authorized, executed and
delivered by the Company; the execution, delivery and
performance of this Agreement and the consummation of
the transactions herein contemplated will not result
in a breach or violation of any of the terms and
provisions of, or constitute a default under, any
statute, rule or regulation, any agreement or
instrument known to such counsel to which the Company
is a party or by which it is bound or to which any of
its property is subject, the Company's Charter or
By-laws, or any order or decree known to such counsel
of any court or governmental agency or body having
jurisdiction over the Company or any Subsidiary or
any of their respective properties; and no consent,
approval, authorization or order of, or filing with,
any court or governmental agency or body is required
for the execution, delivery and performance of this
Agreement or for the consummation of the transactions
contemplated hereby, including the issuance or sale
of the Shares by the Company, except such as may be
required under the Act or state securities laws or
Blue Sky laws or interpretations or rules of the NASD
in connection with the purchase and distribution of
the Shares by the Underwriters.
(vii) To the best of such counsel's knowledge,
the Company and each of the Subsidiaries hold, and
are operating in compliance in all material respects
with, all franchises, grants, authorizations,
licenses, permits, easements, consents, certificates
and orders of any governmental or self-regulatory
body required for the conduct of their respective
businesses and all such franchises, grants,
authorizations, licenses, permits, easements,
consents, certifications and orders are valid and in
full force and effect.
22
(viii) To the best of such counsel's knowledge,
neither the Company nor any of the Subsidiaries is in
violation of its respective Charter or By-laws. To
the best of such counsel's knowledge, neither the
Company nor any of the Subsidiaries is in breach of
or otherwise in default in the performance of any
material obligation, agreement or condition contained
in any bond, debenture, note, indenture, loan
agreement or any other material contract, lease or
other instrument to which it is subject or by which
it may be bound, or to which any of the material
property or assets of the Company or any of the
Subsidiaries is subject.
(ix) The Registration Statement and the
Prospectus (including any documents incorporated by
reference into the Prospectus, at the time they were
filed) comply or complied in all material respects as
to form with the requirements of the Act, the Rules
and Regulations, the Exchange Act and the Exchange
Act Rules and Regulations (except that such counsel
need not express an opinion as to financial
statements and related schedules contained in the
Registration Statement or the Prospectus or
incorporated by reference therein). The conditions
for the use of Form S-3, set forth in the General
Instructions thereto, have been satisfied.
(x) Such counsel does not know of any contracts
or documents required to be filed as exhibits to the
Registration Statement or described in the
Registration Statement or the Prospectus that are not
so filed or described as required, and such contracts
and documents as are summarized in the Registration
Statement or the Prospectus are fairly summarized in
all material respects.
(xi) Such counsel knows of no material legal or
governmental proceedings pending or threatened
against the Company or any of the Subsidiaries except
as set forth in the Prospectus.
(xii) The Company is not, and will not become,
as a result of the consummation of the transactions
contemplated by this Agreement, and application of
the net proceeds therefrom as described in the
Prospectus, required to register as an investment
company under the Investment Company Act.
In rendering such opinion, Vedder, Price, Xxxxxxx & Kammholz
may rely as to matters governed by the laws of states other than Illinois, New
York or Federal laws, on local counsel in such jurisdictions, provided that in
each case Vedder, Price, Xxxxxxx & Kammholz shall state that they believe that
they and the Underwriters are justified in relying on such other counsel. In
addition to the matters set forth above, such opinion shall also include a
statement to the effect that nothing has come to the attention of such counsel
that leads them to believe that (i) the Registration Statement, at the time it
became effective under the Act (but after giving effect to any modifications
incorporated therein pursuant to Rule 430A under the Act) and as of the Closing
Date or the Option Closing Date, if any, 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
23
statements therein not misleading and (ii) the Prospectus, or any supplement
thereto, on the date it was filed pursuant to the Rules and Regulations and as
of the Closing Date or the Option Closing Date, if any, contained an untrue
statement of a material fact or omitted to state a material fact necessary in
order to make the statements, in the light of the circumstances under which they
are made, not misleading (except that such counsel need express no view as to
financial statements and related schedules therein). With respect to such
statement, Vedder, Price, Xxxxxxx & Kammholz may state that their belief is
based upon the procedures set forth therein, but is without independent check
and verification.
(c) The Representative shall have received from Xxxxx,
Day, Xxxxxx & Xxxxx, counsel for the Underwriters, an opinion
dated the Closing Date and the Option Closing Date, if any,
with respect to the validity of the Shares and other related
matters as the Representative reasonably may request, and such
counsel shall have received such papers and information as
they request to enable them to pass upon such matters.
(d) The Representative shall have received at or prior
to the Closing Date from Xxxxx, Day, Xxxxxx & Xxxxx a
memorandum or summary, in form and substance satisfactory to
the Representative, with respect to the qualification for
offering and sale by the Underwriters of the Shares under the
state securities or Blue Sky laws of such jurisdictions as the
Representative may reasonably have designated to the Company.
(e) The Representative shall have received, on each of
the dates hereof, the Closing Date and the Option Closing
Date, if any, a letter dated the date hereof, the Closing Date
or the Option Closing Date, if any, in form and substance
satisfactory to the Representative, of Ernst & Young LLP
confirming that they are independent public accountants within
the meaning of the Act and the applicable published Rules and
Regulations thereunder and stating that in their opinion the
financial statements and schedules examined by them and
included in the Registration Statement comply as to form in
all material respects with the applicable accounting
requirements of the Act and the related published Rules and
Regulations; and containing such other statements and
information as is ordinarily included in accountants' "comfort
letters" to Underwriters with respect to the financial
statements and certain financial and statistical information
contained in the Registration Statement and the Prospectus.
(f) The Representative shall have received on the
Closing Date and the Option Closing Date, if any, a
certificate or certificates of the Company's Chief Executive
Officer and Chief Financial Officer to the effect that, as of
the Closing Date or the Option Closing Date, if any, each of
them severally represents as follows:
(i) the Registration Statement has become
effective under the Act and no stop order suspending
the effectiveness of the Registrations Statement has
been issued, and no proceedings for such purpose have
been taken or are, to his knowledge, contemplated by
the Commission;
24
(ii) the representations and warranties of the
Company contained in Section 1 hereof are true and
correct as of the Closing Date or the Option Closing
Date, if any;
(iii) all filings required to have been made
pursuant to Rules 424 or 430A under the Act have been
made;
(iv) such officer has carefully examined the
Registration Statement and the Prospectus and, in
their opinion, as of the effective date of the
Registration Statement, the statements contained in
the Registration Statement were true and correct, and
such Registration Statement and Prospectus did not
omit to state a material fact required to be stated
therein or necessary in order to make the statements
therein not misleading, and since the effective date
of the Registration Statement, no event has occurred
that should have been set forth in a supplement to or
an amendment of the Prospectus that has not been so
set forth in such supplement or amendment; and
(v) since the respective dates as of which
information is given in the Registration Statement
and the Prospectus, there has not been any material
adverse change or any development involving a
prospective change, which has had or is reasonably
likely to have a Material Adverse Effect, whether or
not arising in the ordinary course of business.
(g) The Company shall have furnished to the
Representative such further certificates and documents
confirming the representations and warranties, covenants and
conditions contained herein and related matters as the
Representative may reasonably have requested.
(h) The Lockup Agreements shall have been furnished to
the Representative.
(i) The Firm Shares and Option Shares, if any, shall
have been approved for quotation upon notice of issuance on
the Nasdaq National Market.
If any of the conditions hereinabove provided for in this
Section shall not have been fulfilled when and as required by this Agreement to
be fulfilled, the obligations of the Underwriters hereunder may be terminated by
the Representative by notifying the Company of such termination in writing on or
prior to the Closing Date or the Option Closing Date, if any.
In such event, the Company and the Underwriters shall not be
under any obligation to each other (except to the extent provided in Sections 5,
11 and 14 hereof).
7. CONDITIONS OF THE OBLIGATIONS OF THE COMPANY.
--------------------------------------------
The obligations of the Company to sell and deliver the Shares
required to be delivered as and when specified in this Agreement are subject to
the conditions that at the Closing Date or the Option Closing Date, if any, no
stop order suspending the effectiveness of
25
the Registration Statement shall have been issued and in effect or proceedings
therefor initiated or threatened.
8. INDEMNIFICATION.
---------------
(a) The Company agrees:
(i) to indemnify and hold harmless each
Underwriter and each person, if any, who controls any
Underwriter within the meaning of the Act, against
any losses, claims, damages or liabilities to which
such Underwriter or any such controlling person may
become subject under the Act or otherwise, insofar as
such losses, claims, damages or liabilities (or
actions or proceedings in respect thereof) arise out
of or are based upon (i) any untrue statement or
alleged untrue statement of any material fact
contained in the Registration Statement, any
Preliminary Prospectus, the Prospectus or any
amendment or supplement thereto, (ii) the omission or
alleged omission to state therein a material fact
required to be stated therein or necessary to make
the statements therein not misleading any act or
failure to act or (iii) any alleged act or failure to
act by any Underwriter in connection with, or
relating in any manner to, the Shares or the offering
contemplated hereby, and that is included as part of
or referred to in any loss, claim, damage, liability
or action arising out of or based upon matters
covered by clause (i) or (ii) above (provided,
however, that the Company shall not be liable under
this clause (iii) to the extent that it is determined
in a final judgment by a court of competent
jurisdiction that such loss, claim, damage, liability
or action resulted directly from any such acts or
failures to act undertaken or omitted to be taken by
such Underwriter through its gross negligence or
willful misconduct); provided, however, that the
Company will not be liable in any such case to the
extent that any such loss, claim, damage or liability
arises out of or is based upon an untrue statement or
alleged untrue statement, or omission or alleged
omission made in the Registration Statement, any
Preliminary Prospectus, the Prospectus or such
amendment or supplement in reliance upon and in
conformity with written information furnished to the
Company by or through the Representative specifically
for use in the preparation thereof; and
(ii) to reimburse each Underwriter and each
such controlling person upon demand for any legal or
other out-of-pocket expenses reasonably incurred by
such Underwriter or such controlling person in
connection with investigating or defending any such
loss, claim, damage or liability, action or
proceeding or in responding to a subpoena or
governmental inquiry related to the offering of the
Shares, whether or not such Underwriter or
controlling person is a party to any action or
proceeding. In the event that it is finally
judicially determined that the Underwriters were not
entitled to receive payments for legal and other
expenses
26
pursuant to this subparagraph, the Underwriters will
promptly return all sums that had been advanced
pursuant hereto.
(b) Each Underwriter severally and not jointly will
indemnify and hold harmless the Company, each of its
directors, each of its officers who have signed the
Registration Statement and each person, if any, who controls
the Company within the meaning of the Act, against any losses,
claims, damages or liabilities to which the Company or any
such director, officer or controlling person may become
subject under the Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions or proceedings in
respect thereof) arise out of or are based upon (i) any untrue
statement or alleged untrue statement of any material fact
contained in the Registration Statement, any Preliminary
Prospectus, the Prospectus or any amendment or supplement
thereto or (ii) the omission or the alleged omission to state
therein a material fact required to be stated therein or
necessary to make the statements therein not misleading in the
light of the circumstances under which they were made; and
will reimburse any legal or other expenses reasonably incurred
by the Company or any such director, officer or controlling
person in connection with investigating or defending any such
loss, claim, damage, liability, action or proceeding;
provided, however, that each Underwriter will be liable in
each case to the extent, but only to the extent, that such
untrue statement or alleged untrue statement or omission or
alleged omission has been made in the Registration Statement,
any Preliminary Prospectus, the Prospectus or such amendment
or supplement, in reliance upon and in conformity with written
information furnished to the Company by or through the
Representative specifically for use in the preparation
thereof.
(c) In case any proceeding (including any
governmental investigation) shall be instituted involving any
person in respect of which indemnity may be sought pursuant to
this Section, such person (the "indemnified party") shall
promptly notify the person against whom such indemnity may be
sought (the "indemnifying party") in writing. No
indemnification provided for in Section 8(a) or (b) shall be
available to any party who shall fail to give notice as
provided in this Section 8(c) if the party to whom notice was
not given was unaware of the proceeding to which such notice
would have related and was materially prejudiced by the
failure to give such notice, but the failure to give such
notice shall not relieve the indemnifying party or parties
from any liability which it or they may have to the
indemnified party for contribution or otherwise than on
account of the provisions of Section 8(a) or (b). In case any
such proceeding shall be brought against any indemnified party
and it shall notify the indemnifying party of the commencement
thereof, the indemnifying party shall be entitled to
participate therein and, to the extent that it shall wish,
jointly with any other indemnifying party similarly notified,
to assume the defense thereof, with counsel satisfactory to
such indemnified party and shall pay as incurred the fees and
disbursements of such counsel related to such proceeding. In
any such proceeding, any indemnified party shall have the
right to retain its own counsel at its own expense.
Notwithstanding the foregoing, the indemnifying party shall
pay as incurred (or within 30 days of presentation) the fees
and expenses of the counsel retained by
27
the indemnified party in the event (i) the indemnifying party
and the indemnified party shall have mutually agreed to the
retention of such counsel, (ii) the named parties to any such
proceeding (including any impleaded parties) include both the
indemnifying party and the indemnified party and
representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests
between them or (iii) the indemnifying party shall have failed
to assume the defense and employ counsel acceptable to the
indemnified party within a reasonable period of time after
notice of commencement of the action.
It is understood that the indemnifying party shall not, in
connection with any proceeding or related proceedings in the same jurisdiction,
be liable for the reasonable fees and expenses of more than one separate firm
for all such indemnified parties. Such firm shall be designated in writing by
you in the case of parties indemnified pursuant to Section 8(a) and by the
Company in the case of parties indemnified pursuant to Section 8(b). The
indemnifying party shall not be liable for any settlement of any proceeding
effected without its written consent but if settled with such consent or if
there be a final judgment for the plaintiff, the indemnifying party agrees to
indemnify the indemnified party from and against any loss or liability by reason
of such settlement or judgment. In addition, the indemnifying party will not,
without the prior written consent of the indemnified party, settle or compromise
or consent to the entry of any judgment in any pending or threatened claim,
action or proceeding of which indemnification may be sought hereunder (whether
or not any indemnified party is an actual or potential party to such claim,
action or proceeding) unless such settlement, compromise or consent includes an
unconditional release of each indemnified party from all liability arising out
of such claim, action or proceeding.
(d) If the indemnification provided for in this
Section is unavailable to or insufficient to hold harmless an
indemnified party under Section 8(a) or (b) above in respect
of any losses, claims, damages or liabilities (or actions or
proceedings in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of such losses,
claims, damages or liabilities (or actions or proceedings in
respect thereof) in such proportion as is appropriate to
reflect the relative benefits received by the Company on the
one hand and the Underwriters on the other from the offering
of the Shares. If, however, the allocation provided by the
immediately preceding sentence 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 the Underwriters on the other in connection with the
statements or omissions which resulted in such losses, claims,
damages or liabilities (or actions or proceedings in respect
thereof), as well as any other relevant equitable
considerations. The relative benefits received by the Company
on the one hand and the Underwriters on the other shall be
deemed to be in the same proportion as the total net proceeds
from the offering (before deducting expenses) received by the
Company bear to the total underwriting discounts and
commissions received by the Underwriters, in each case as set
forth in the table on the cover page of the Prospectus. The
relative fault shall be determined by reference to, among
other
28
things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Company
on the one hand or the Underwriters 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 the Underwriters agree that it would not be
just and equitable if contributions pursuant to this Section 8(d) were
determined by pro rata allocation (even if the Underwriters were treated as one
entity for such purpose) or by any other method of allocation that does not take
account of the equitable considerations referred to above in this Section 8(d).
The amount paid or payable by an indemnified party as a result of the losses,
claims, damages or liabilities (or actions or proceedings in respect thereof)
referred to above in this Section 8(d) 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 or claim. Notwithstanding the
provisions of this Subsection, (i) no Underwriter shall be required to
contribute any amount in excess of the underwriting discounts and commissions
applicable to the Shares purchased by such Underwriter and (ii) no person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations in this Section 8(d)
to contribute are several in proportion to their respective underwriting
obligations and not joint.
(e) In any proceeding relating to the Registration
Statement, any Preliminary Prospectus, the Prospectus or any
supplement or amendment thereto, each party against whom
contribution may be sought under this Section hereby consents
to the jurisdiction of any court having jurisdiction over any
other contributing party, agrees that process issuing from
such court may be served upon him or it by any other
contributing party and consents to the service of such process
and agrees that any other contributing party may join him or
it as an additional defendant in any such proceeding in which
such other contributing party is a party.
(f) Any losses, claims, damages, liabilities or
expenses for which an indemnified party is entitled to
indemnification or contribution under this Section shall be
paid by the indemnifying party to the indemnified party as
such losses, claims, damages, liabilities or expenses are
incurred. The indemnity and contribution agreements contained
in this Section and the representations and warranties of the
Company set forth in this Agreement shall remain operative and
in full force and effect, regardless of (i) any investigation
made by or on behalf of any Underwriter or any person
controlling any Underwriter, the Company, its directors or
officers or any persons controlling the Company, (ii)
acceptance of any Shares and payment therefor hereunder and
(iii) any termination of this Agreement. A successor to any
Underwriter, or to the Company, its directors or officers or
any person controlling the Company, shall be entitled to the
benefits of the indemnity, contribution and reimbursement
agreements contained in this Section.
29
9. DEFAULT BY UNDERWRITERS.
-----------------------
If on the Closing Date or the Option Closing Date, if any, any
Underwriter shall fail to purchase and pay for the portion of the Shares that
such Underwriter has agreed to purchase and pay for on such date (otherwise than
by reason of any default on the part of the Company), you, as the Representative
of the Underwriters, shall use your reasonable efforts to procure within 36
hours thereafter one or more of the other Underwriters, or any others, to
purchase from the Company such amounts as may be agreed upon and upon the terms
set forth herein, the Firm Shares or Option Shares, as the case may be, that the
defaulting Underwriter or Underwriters failed to purchase. If during such 36
hours you, as such Representative, shall not have procured such other
Underwriters, or any others, to purchase the Firm Shares or Option Shares, as
the case may be, agreed to be purchased by the defaulting Underwriter or
Underwriters, then (a) if the aggregate number of shares with respect to which
such default shall occur does not exceed 10% of the Firm Shares or Option
Shares, as the case may be, covered hereby, the other Underwriters shall be
obligated, severally, in proportion to the respective numbers of Firm Shares or
Option Shares, as the case may be, that they are obligated to purchase
hereunder, to purchase the Firm Shares or Option Shares, as the case may be,
that such defaulting Underwriter or Underwriters failed to purchase or (b) if
the aggregate number of shares of Firm Shares or Option Shares, as the case may
be, with respect to which such default shall occur exceeds 10% of the Firm
Shares or Option Shares, as the case may be, covered hereby, the Company or you
as the Representative of the Underwriters will have the right, by written notice
given within the next 36-hour period to the parties to this Agreement, to
terminate this Agreement without liability on the part of the non-defaulting
Underwriters or of the Company except to the extent provided in Section 8
hereof. In the event of a default by any Underwriter or Underwriters, as set
forth in this Section, the Closing Date or Option Closing Date, if any, may be
postponed for such period, not exceeding seven days, as you, as Representative,
may determine in order that the required changes in the Registration Statement
or in the Prospectus or in any other documents or arrangements may be effected.
The term "Underwriter" includes any person substituted for a defaulting
Underwriter. Any action taken under this Section shall not relieve any
defaulting Underwriter from liability in respect of any default of such
Underwriter under this Agreement.
10. NOTICE.
------
All communications hereunder shall be in writing and, except
as otherwise provided herein, will be mailed, delivered or faxed and confirmed
as follows:
if to the Underwriters, to: RBC Xxxx Xxxxxxxx Inc.
c/o RBC Capital Markets
00 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000
Attention: Xxxx Xxxxxx
Syndicate Director
Fax: (000) 000-0000
30
if to the Company, to: Wintrust Financial Corporation
000 Xxxxx Xxxx Xxxx
Xxxx Xxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx
Chief Executive Officer
Fax: (000) 000-0000
11. TERMINATION.
-----------
(a) This Agreement may be terminated by you by
notice to the Company at any time prior to the Closing Date if
any of the following has occurred: (i) since the respective
dates as of which information is given in the Registration
Statement and the Prospectus, any material adverse change or
any development involving a prospective change, which has had
or is reasonably likely to have a Material Adverse Effect;
(ii) any material adverse change in the financial markets in
the United States or in the international financial markets,
any outbreak or escalation of hostilities or declaration of
war or national emergency or other national or international
calamity or crisis or any change or development involving a
prospective change in national or international political,
financial or economic conditions, in each case the effect of
which is such as to make it, in the reasonable judgment of the
Representative, impracticable or inadvisable to market the
Shares or to enforce contracts for the sale of the Shares;
(iii) the suspension or material limitation of trading in
securities generally on the NYSE, AMEX or The Nasdaq Stock
Market or limitation on prices (other than limitations on
hours or numbers of days of trading) for securities on any
such exchange or market or a material disruption has occurred
in commercial banking or securities settlement or clearance
services in the United States; (iv) the enactment,
publication, decree or other promulgation of any statute,
regulation, rule or order of any court or other governmental
authority that in your opinion materially and adversely
affects or may materially and adversely affect the business or
operations of the Company; (v) declaration of a banking
moratorium by United States or New York State authorities;
(vi) any downgrading, or placement on any watch list for
possible downgrading, in the rating of the Company's debt
securities by any "nationally recognized statistical rating
organization" (as defined for purposes of Rule 436(g) under
the Exchange Act); (vii) the suspension or material limitation
of trading of the Common Stock by The Nasdaq Stock Market, the
Commission or any other governmental authority; or (viii) the
taking of any action by any governmental body or agency in
respect of its monetary or fiscal affairs that in your
reasonable opinion has a material adverse effect on the
securities markets in the United States; or
(b) as provided in Sections 6 and 9 of this Agreement.
12. SUCCESSORS.
----------
This Agreement has been and is made solely for the benefit of
the Company and the Underwriters and their respective successors, executors,
administrators, heirs and assigns,
31
and the officers, directors and controlling persons referred to herein, and no
other person will have any right or obligation hereunder. No purchaser of any of
the Shares from any Underwriter shall be deemed a successor or assign merely
because of such purchase.
13. INFORMATION PROVIDED BY UNDERWRITERS.
------------------------------------
The Company and the Underwriters acknowledge and agree that
the only information furnished or to be furnished by any Underwriter to the
Company for inclusion in any Prospectus or the Registration Statement consists
of the amounts of the selling concession and reallowance set forth in the
Prospectus.
14. MISCELLANEOUS.
-------------
The reimbursement, indemnification and contribution agreements
contained in this Agreement and the representations, warranties and covenants in
this Agreement shall remain in full force and effect regardless of (a) any
termination of this Agreement; (b) any investigation made by or on behalf of any
Underwriter or controlling person thereof, or by or on behalf of the Company or
its directors or officers; and (c) delivery of and payment for the Shares under
this Agreement.
This Agreement may be executed in counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and
the same instrument.
This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York.
This Agreement constitutes the entire agreement of the parties
to this Agreement and supersedes all prior written or oral and all
contemporaneous oral agreements, understandings and negotiations with respect to
the subject matter hereof.
This Agreement may only be amended or modified in writing,
signed by all of the parties hereto, and no condition herein (express or
implied) may be waived unless waived in writing by each party whom the condition
is meant to benefit.
[remainder of page intentionally blank]
32
If the foregoing letter is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicates hereof,
whereupon it will become a binding agreement among the Company and the several
Underwriters in accordance with its terms.
Very truly yours,
WINTRUST FINANCIAL CORPORATION
By:_________________________________________
Xxxxxx X. Xxxxxx
Chief Executive Officer
The foregoing Underwriting Agreement is
hereby confirmed and accepted as of the
date first above written.
RBC XXXX XXXXXXXX INC.
As the Representative of the several
Underwriters listed on Schedule I hereto
By: RBC Xxxx Xxxxxxxx Inc.
By:____________________________
Name:__________________________
Title:_________________________
S-1
SCHEDULE I
SCHEDULE OF UNDERWRITERS
Number of
Firm Shares
Underwriter to be Purchased
----------- ---------------
RBC Xxxx Xxxxxxxx Inc.
U.S. Bancorp Xxxxx Xxxxxxx Inc.
Xxxxxx, Xxxxxxx & Company, Incorporated
Xxxxxxx Xxxxx & Associates, Inc. ---------
TOTAL 1,000,000
=========
EXHIBIT A
LIST OF SUBSIDIARIES
Lake Forest Bank & Trust Company
North Shore Community Bank & Trust Company
Hinsdale Bank & Trust Company
Libertyville Bank & Trust Company
Barrington Bank & Trust Company, N.A.
Crystal Lake Bank & Trust Company, N.A.
Northbrook Bank & Trust Company
First Insurance Funding Corporation
Tricom, Inc. of Milwaukee
Upgrade Personnel Services, Inc.
Xxxxx Xxxxxx Trust Company
Xxxxx Xxxxxx Investments LLC
Xxxxx Xxxxxx Management Company
Focused Investments LLC
Wintrust Capital Trust I
Wintrust Capital Trust II
Wintrust Information Technology Services Co.
