900,000 Shares
PrivateBancorp, Inc.
Common Stock
(No Par Value)
UNDERWRITING AGREEMENT
________, 1999
EVEREN Securities, Inc.
Xxxxxx, Xxxxxxxx & Company, Incorporated
As Representatives of
the Several Underwriters
c/o EVEREN Securities, Inc.
00 Xxxx Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
Ladies and Gentlemen:
PrivateBancorp, Inc., a Delaware corporation (the "Company"), confirms
its agreement with the several underwriters listed in Schedule I hereto (the
"Underwriters"), for whom EVEREN Securities, Inc., and Xxxxxx, Xxxxxxxx &
Company, Incorporated (collectively, the "Representatives") have been duly
authorized to act as representatives, as follows:
1. The Shares. Subject to the terms and conditions set forth in this agreement
(the "Agreement"), the Company proposes to issue and sell 900,000 shares of its
authorized but unissued Common Stock, no par value (the "Common Stock"), to the
several Underwriters. Such 900,000 shares of Common Stock proposed to be sold by
the Company are hereinafter referred to as the "Firm Shares." The Company also
proposes to grant to the Underwriters an option to purchase up to 135,000
additional shares of Common Stock (the "Additional Shares") if requested by the
Underwriters as provided in Section 3 hereof. The Firm Shares and the Additional
Shares are herein collectively called the "Shares."
2. Registration Statement and Prospectus. The Company has prepared and filed
with the Securities and Exchange Commission (the "Commission") in accordance
with the provisions of the Securities Act of 1933, as amended, and the rules and
regulations of the Commission thereunder (collectively, the "Act"), a
registration statement on Form S-1 (File No. 333-77147) including a prospectus,
relating to the Shares, that may have been amended; each such amendment was so
prepared and filed. The registration statement, as amended at the time when it
became or becomes effective, including all financial schedules and exhibits
thereto and all of the information (if any) deemed to be part of the
registration statement at the time of its effectiveness pursuant to Rule 430A
under the Act ("Rule 430A"), is hereinafter referred to as the "Registration
Statement"; the prospectus in the form first provided to the Underwriters by the
Company in connection with the offering and sale of the Shares (whether or not
required to be filed pursuant to Rule 424(b) under the Act ("Rule 424(b)")) is
hereinafter referred to as the "Prospectus," except that if any revised
prospectus shall be provided to the Underwriters by the Company for use in
connection with the offering of the Shares that differs from the Prospectus
(whether or not any such revised prospectus is required to be filed by the
Company pursuant to Rule 424(b) under the Act), the term "Prospectus" shall
refer to the revised prospectus from and after the time it is first provided to
the Underwriters for such use; and each preliminary prospectus included in the
Registration Statement prior to the time it became or becomes effective is
herein referred to as a "Preliminary Prospectus."
3. Agreements to Sell and Purchase. On the basis of the representations and
warranties contained in this Agreement, and subject to the terms and conditions
hereof, (i) the Company agrees to issue and sell to the Underwriters, at a price
of $_____ per Share (the "Purchase Price"), 900,000 Firm Shares; and (ii) each
Underwriter agrees, severally and not jointly, to purchase from the Company, at
the Purchase Price, the aggregate number of Firm Shares set forth opposite the
name of such Underwriter in Schedule I hereto.
On the basis of the representations and warranties contained in this
Agreement, and subject to the terms and conditions hereof, (i) the Company
agrees to sell to the Underwriters, at the Purchase Price, up to 135,000
Additional Shares; and (ii) the Underwriters shall have the right to purchase,
severally and not jointly, from time to time, up to an aggregate of 135,000
Additional Shares at the Purchase Price. Additional Shares may be purchased as
provided in Section 4 hereof solely for the purpose of covering over-allotments
made in connection with the offering of the Firm Shares. If any Additional
Shares are to be purchased, each Underwriter, severally and not jointly, agrees
to purchase the number of Additional Shares (subject to such adjustments to
eliminate fractional shares as the Representatives may determine) that bears the
same proportion to the total number of Additional Shares to be purchased as the
number of Firm Shares set forth opposite the name of such Underwriter in
Schedule I bears to the total number of Firm Shares.
For a period of 180 days from the effective date of the Registration
Statement, the Company will not, without the prior written consent of EVEREN
Securities, Inc. on behalf of the Underwriters (1) offer, pledge, sell, contract
to sell, sell any option or contract to purchase, purchase any option or
contract to sell, grant any option, right or warrant to purchase, or otherwise
transfer or dispose of, directly or indirectly, any shares of Common Stock or
any securities convertible into or exercisable or exchangeable for Common Stock,
or (2) enter into any swap or other agreement that transfers, in whole or in
part, any of the economic consequences of ownership of the Common Stock, whether
any such
transaction described in clause (1) or (2) above is to be settled by
delivery of Common Stock or such other securities, in cash or otherwise;
provided, however, that this clause shall not apply to the transactions
expressly contemplated hereby, the issuance of shares of Common Stock pursuant
to the transactions with Town Square Financial Corporation as described in the
Prospectus, the granting of options for shares of Common Stock or sales of
shares of Common Stock to the Company's employees pursuant to the exercise of
options under those employee benefit plans described in the Prospectus.
For a period of 180 days from the effective date of the Registration
Statement, the Company will not, without the prior written consent of EVEREN
Securities, Inc. on behalf of the Underwriters, file a registration statement
relating to shares of capital stock (including the Common Stock) or securities
convertible into or exercisable or exchangeable for, capital stock or warrants,
options or rights to purchase or acquire, capital stock, with the exception of
the filing of Registration Statements on Form S-8 with respect to the Company's
employee benefit plans described in the Prospectus.
4. Agreements of the Company as to Delivery and Payment. The Company agrees
with each Underwriter that:
(a) Delivery to the Underwriters of and payment for the Firm Shares
shall be made at 10:00 A.M., New York City time, on the third (or if the
Firm Shares are priced, as contemplated by Rule 15c6-1(c) under the
Securities Exchange Act of 1934, as amended, after 4:30 p.m. New York City
time, on the fourth) full business day (such time and date being referred
to as the "Closing Date") following the date of the initial public offering
of the Firm Shares as advised to you by the Company, at such place as you
shall designate.
(b) Delivery to the Underwriters of and payment for any Additional
Shares to be purchased by the Underwriters shall be made at such place as
the Representatives shall designate, at 10:00 A.M., New York City time, on
such date or dates (individually, an "Option Closing Date" and
collectively, the "Option Closing Dates"), which may be the same as the
Closing Date but shall in no event be earlier than the Closing Date, as
shall be specified in a written notice from the Representatives to the
Company of the Underwriters' determination to purchase a number, specified
in said notice, of Additional Shares. Any such notice may be given at any
time within 30 days after the date of this Agreement.
(c) Certificates for the Shares shall be registered in such names and
issued in such denominations as you shall request in writing not later than
two business days prior to the Closing Date or the applicable Option
Closing Date, as the case may be, and shall be made available for
inspection not later than 9:30 A.M., New York City time, on the business
day next preceding the Closing Date or the applicable Option Closing Date,
as the case may be, with any transfer taxes payable upon initial issuance
or the transfer thereof duly paid by the Company for the respective
accounts of the Underwriters against payment of the Purchase Price therefor
by certified or official bank check or checks payable in New York Clearing
House or similar next-day funds to the order of the Company.
5. Further Agreements of the Company. The Company also agrees with each
Underwriter that:
(a) it will, if the Registration Statement has not heretofore become
effective under the Act, file an amendment to the Registration Statement
or, if necessary pursuant to Rule 430A, a post-effective amendment to the
Registration Statement, as soon as practicable after the execution and
delivery of this Agreement, and will use its best efforts to cause the
Registration Statement or such post-effective amendment to become effective
at the earliest possible time; and the Company will comply fully and in a
timely manner with the applicable provisions of Rule 424(b) and Rule 430A;
(b) it will advise you promptly and, if requested by you, confirm such
advice in writing, (i) when the Registration Statement has become
effective, if and when the Prospectus is sent for filing pursuant to
Rule 424 under the Act and when any post-effective amendment to the
Registration Statement becomes effective, (ii) of the receipt of any
comments from the Commission that relate to the Registration Statement or
requests by the Commission for amendments to the Registration Statement or
amendments or supplements to the Prospectus or for additional information,
(iii) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement, or of the suspension of
qualification of the Shares for offering or sale in any jurisdiction, or
the initiation or, to the best knowledge of the Company, threat of any
proceedings for such purpose by the Commission or any state securities
commission or other regulatory authority, and (iv) of the happening of any
event or information becoming known during the period referred to in
paragraph (e) below that makes any statement of a material fact made in the
Registration Statement untrue or that requires the making of any additions
to or changes in the Registration Statement (as amended or supplemented
from time to time) in order to make the statements therein not misleading
or that makes any statement of a material fact made in the Prospectus (as
amended or supplemented from time to time) untrue or that requires the
making of any additions to or changes in the Prospectus (as amended or
supplemented from time to time) in order to make the statements therein,
not misleading; if at any time the Commission shall issue or institute
proceedings (or threaten to institute any such proceedings) to issue any
stop order suspending the effectiveness of the Registration Statement, or
any state securities commission or other regulatory authority shall issue
or institute proceedings (or threaten to institute proceedings) to issue an
order suspending the qualification or exemption of the Shares under any
applicable state securities or Blue Sky laws, the Company shall use its
best efforts to obtain the withdrawal or lifting of such order at the
earliest possible time;
(c) it will furnish to you without charge one signed copy of the
Registration Statement as first filed with the Commission and of each
amendment to it, including all exhibits filed therewith, and will furnish
to you and each Underwriter designated by you such number of conformed
copies of the Registration Statement as so filed and of each amendment to
it, without exhibits, as you may reasonably request, provided that the
copies of the Registration Statement and each amendment thereto furnished
to the Underwriters will be identical to the electronically transmitted
copies thereof filed with the Commission pursuant to its Electronic Data
Gathering Analysis and Retrieval System ("XXXXX"), except to the extent
permitted by Regulation S-T;
(d) it will not file any amendment or supplement to the Registration
Statement, whether before or after the time when it becomes effective, or
make any amendment or supplement to the Prospectus of which you shall not
previously have been advised and provided a copy a reasonable period of
time prior to the filing thereof or to which you or your counsel shall
reasonably object; and it will prepare and file with the Commission,
promptly upon your reasonable request, any amendment to the Registration
Statement or supplement to the Prospectus that may be necessary or
advisable in connection with the distribution of the Shares by you in your
or your counsel's opinion, and will use its best efforts to cause the same
to become effective as promptly as possible;
(e) promptly after the Registration Statement becomes effective, and
from time to time thereafter for such period as a prospectus is required by
the Act to be delivered in connection with the sales by an underwriter or a
dealer (in the opinion of your counsel), it will furnish to each
Underwriter and dealer without charge as many copies of the Prospectus (and
any amendment or supplement of the Prospectus) as such Underwriter or
dealer may reasonably request for the purposes contemplated by the Act,
provided that the Prospectus (and any amendment or supplement to the
Prospectus) furnished to the Underwriters will be identical to the
electronically transmitted copies thereof filed with the Commission
pursuant to XXXXX, except to the extent permitted by Regulation S-T; and
the Company consents to the use of the Prospectus and any amendment or
supplement thereto by any Underwriter or any dealer, both in connection
with the offering or sale of the Shares and for such period of time
thereafter as the Prospectus is required by the Act to be delivered in
connection therewith;
(f) if during the period specified in paragraph 5(e) any event shall
occur or information become
known as a result of which in the opinion of your counsel it becomes
necessary to amend or supplement the Prospectus in order to make the
statements therein, in light of the circumstances existing as of the date
the Prospectus is delivered to a purchaser, not misleading, or it is
necessary to amend or supplement the Prospectus to comply with any law,
forthwith to prepare and, subject to paragraph 5(d) above, it will file
with the Commission at the sole expense of the Company an appropriate
amendment or supplement to the Prospectus so that the statements of any
material facts in the Prospectus, as so amended and supplemented, will not
in light of the circumstances when it is so delivered, be misleading, or so
that the Prospectus will comply with law and it will furnish to the
Underwriters and to such dealers as the Underwriters shall specify, at the
sole expense of the Company, such number of copies thereof as such
Underwriters or dealers may reasonably request;
(g) prior to any public offering of the Shares, it will cooperate with
you and counsel for the Underwriters in connection with the registration or
qualification of the Shares for offer and sale by the several Underwriters
and by dealers under the state securities or Blue Sky laws of such
jurisdictions as you may request (provided, that the Company shall not be
obligated to qualify as a foreign corporation in any jurisdiction in which
it is not so qualified or to take any action which would subject it to
general consent to service of process in any jurisdiction in which it is
not now so subject); the Company will continue such qualification in effect
so long as required by law for the distribution of the Shares and will file
such consents to service of process or other documents as may be necessary
in order to effect such registration or qualification (provided, that the
Company shall not be obligated to take any action that would subject it to
general consent to service of process in any jurisdiction in which it is
not now so subject);
(h) it will not, prior to the exercise in full or termination or
expiration of the option to purchase the Additional Shares, incur any
liability or obligation, direct or contingent, or enter into any material
transaction, other than in the ordinary course of business, except as
contemplated by the Prospectus;
(i) it will not acquire any capital stock of the Company prior to the
exercise in full or termination or expiration of the option to purchase the
Additional Shares nor will the Company declare or pay any dividend or make
any other distribution upon the Common Stock payable to stockholders of
record on a date prior to the exercise in full or termination or expiration
of the option to purchase the Additional Shares, except in either case as
contemplated by the Prospectus including the payment of regular dividends
consistent with past practices;
(j) it will mail and make generally available to its security holders
and furnish to the Underwriters as soon as reasonably practicable a
consolidated earnings statement covering a period of at least 12 months
beginning after the "effective date" (as defined in Rule 158 under the Act)
of the Registration Statement (but in no event commencing later than 90
days after such date) that will satisfy the provisions of Section 11(a) of
the Act and Rule 158 thereunder and to advise you in writing when such
statement has been made so available;
(k) during the period of five years after the date of this Agreement,
it will furnish to you a copy (i) as soon as practicable after the filing
thereof, of each report filed by the Company with the Commission, any
securities exchange or the National Association of Securities Dealers, Inc.
(the "NASD"); (ii) as soon as practicable after the release thereof, of
each material press release in respect of the Company; (iii) as soon as
available, of each report of the Company mailed to stockholders; and (iv)
as soon as available, such other publicly available information concerning
the Company as you may reasonably request;
(l) whether or not the transactions contemplated hereby are
consummated or this Agreement becomes effective as to all of its provisions
or is terminated, to pay all costs, fees, expenses and taxes incident to
the performance by the Company of its obligations hereunder, including,
without limitation, (i) the preparation, printing, filing and distribution
under the Act of the Registration Statement (including financial statements
and exhibits), each preliminary Prospectus and all amendments and
supplements to
any of them prior to or during the period specified in paragraph (e) above
of this Section 5; (ii) any required registration or qualification of the
Shares for offer and sale under the securities or Blue Sky laws of the
several states; (iii) filings and clearance with the NASD in connection
with the offering and sale of the Shares; (iv) the listing of the Shares on
the Nasdaq National Market; (v) furnishing such copies of the Registration
Statement, each Preliminary Prospectus, the Prospectus and all amendments
and supplements thereto as may be requested for use in connection with the
offering or sale of the Shares by the Underwriters or by dealers to whom
the Shares may be sold; (vi) obtaining the opinions to be provided pursuant
to Section 8(g) of this Agreement; and (vii) the performance by the Company
of all of its other obligations under this Agreement; if the sale of the
Shares provided for herein is not consummated because the Underwriters
exercise their right to terminate this Agreement pursuant to Section 9
hereof and any of the following have occurred during the term of this
Agreement: (a) there has been any material adverse change in the condition
(financial or otherwise), earnings, affairs, business or prospects of the
Company, or (b) the Company shall refuse or be unable to comply with any
provision hereof (except as the result of a breach of this Agreement by the
Underwriters), the Company will promptly reimburse the Underwriters upon
demand for all reasonable out-of-pocket expenses (including the fees and
disbursements of counsel for the Underwriters) that shall have been
incurred by the Underwriters in connection with the proposed purchase and
sale of Shares;
(m) it intends to use the net proceeds received by it from the sale of
the Shares being sold by it in the manner specified in the Prospectus and
it will file such reports with the Commission with respect to the
application of the proceeds therefrom as may be required in accordance with
Rule 463 under the Act and will furnish you copies of any such reports as
soon as practicable after the filing thereof;
(n) if, at the time of effectiveness of the Registration Statement,
any information shall have been omitted therefrom in reliance upon Rule
430A, then immediately following the execution and delivery of this
Agreement, it will prepare, and file or transmit for filing with the
Commission in accordance with such Rule 430A and Rule 424(b), copies of an
amended prospectus, or, if required by such Rule 430A, a post-effective
amendment to the Registration Statement (including an amended prospectus),
containing all information so omitted;
(o) it will use its best efforts to cause the Shares to be approved
for quotation, subject to notice of issuance or sale, on Nasdaq; it will
comply with all registration, filing and reporting requirements of the
Securities Exchange Act of 1934, as amended, and the rules and regulations
of the Commission thereunder (collectively, the "Exchange Act") and the
Nasdaq National Market;
(p) it will use its best efforts to do and perform all things required
to be done and performed under this Agreement by it prior to or after the
Closing Date or any Option Closing Date, as the case may be, and to satisfy
all conditions precedent to the delivery of the Shares.
6. Representations and Warranties.
(a) The Company represents and warrants to each Underwriter as of the
date hereof, the Closing Date and each Option Closing Date that:
(i) The Commission has not issued any order preventing or suspending
the use of any Preliminary Prospectus relating to the proposed offering of
the Shares nor instituted or threatened any proceedings for that purpose.
The Registration Statement, on the date it became or becomes effective,
each Preliminary Prospectus, on the date of the filing thereof with the
Commission, and the Prospectus and any amendment or supplement thereto, on
the date of filing thereof with the Commission (or if not filed, on the
date provided by the Company to the Underwriters in connection with the
offering and sale of the Shares) and at the Closing Date and each Option
Closing Date conformed or will conform with the requirements of the Act.
The Registration Statement, on the date it became or becomes effective, did
not or will not
contain an untrue statement of material fact or omit to state a material
fact required to be stated therein or necessary to make the statements
therein, in light of the circumstance under which they were made, not
misleading, and each Preliminary Prospectus, on the date of the filing
thereof with the Commission, and the Prospectus and any amendment or
supplement thereto, on the date of filing thereof with the Commission (or
if not filed, on the date provided by the Company to the Underwriters in
connection with the offering and sale of the Shares) and at the Closing
Date and each Option Closing Date did not and will not include an untrue
statement of material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading; provided that the
foregoing shall not apply to statements in or omissions from the
Registration Statement and the Prospectus made or omitted in reliance upon,
and in conformity with, information relating to the Underwriters furnished
in writing to the Company by or on behalf of the Underwriters with your
consent expressly for use therein. The Company hereby acknowledges for all
purposes under this Agreement that (A) the statements set forth under the
caption "Underwriting" in the Prospectus, (B) the statement relating to the
delivery of Shares set forth on the cover page of the Prospectus and (C)
the Prospectus delivery statement set forth on page 3 of the Prospectus
constitute the only written information furnished to the Company by or on
behalf of the Underwriters for use in the preparation of the Registration
Statement or the Prospectus or any amendment or supplement thereto.
(ii) The Company has been duly incorporated and is a validly existing
corporation in good standing under the laws of Delaware and is duly
registered as a bank holding company under the Bank Holding Company Act of
1956, as amended (the "BHC Act"), supervised by the Board of Governors of
the Federal Reserve System (the "FRB"). The PrivateBank and Trust Company,
an Illinois banking corporation (the "Bank"), constitutes the only
subsidiary of the Company. The Bank has been duly organized and is a
validly existing banking corporation in good standing under the laws of
Illinois. The Company and the Bank each have full power and authority,
corporate or otherwise, to own or lease their respective properties and
assets and to conduct their respective businesses as described in the
Registration Statement and the Prospectus, and are each duly qualified to
do business and in good standing in each jurisdiction in which it owns or
leases real property or in which they conduct their respective businesses
or the ownership or leasing of property requires such qualification, except
where the failure to be so qualified, either individually or in the
aggregate, would not have a material adverse effect on the condition
(financial or otherwise), business, assets, prospects, net worth or results
of operations of the Company and the Bank, taken as a whole (a "Material
Adverse Effect"). The accounts of the Bank are insured by the Bank
Insurance Fund of the Federal Deposit Insurance Corporation (the "FDIC") up
to the maximum applicable amount in accordance with the rules and
regulations of the FDIC, and no proceedings for the termination or
revocation of such membership are pending, or to the best knowledge of the
Company, threatened.
(iii) The capitalization of the Company is, and upon consummation of
the transactions contemplated hereby and by the Prospectus will be, as set
forth in the Registration Statement and the Prospectus under the caption
"Capitalization." All of the outstanding shares of capital stock of the
Company have been duly authorized and are validly issued, are fully paid
and non-assessable and conform to the description thereof in the
Registration Statement and the Prospectus and were not issued in violation
of any preemptive rights or other rights to subscribe for or purchase
securities. Except as set forth in the Registration Statement and the
Prospectus with respect to the Company's Stock Incentive Plan and the non-
qualified options granted to certain directors and management of the
Company, no options, warrants or other rights to purchase from the Company,
agreements or other obligations of the Company to issue or other rights to
convert any obligation into, or exchange any securities for, shares of
capital stock of or ownership interests in the Company are outstanding. The
descriptions of the Company's Stock Incentive Plan, the non-qualified
options granted to certain directors and management of the Company, and the
options or rights granted by the Company and exercised thereunder, as set
forth in the Registration Statement and the Prospectus, accurately and
fairly present the information required to be shown under the Act with
respect to such options and rights.
(iv) Subsequent to the respective dates as of which information is
given in the Registration Statement and Prospectus, and except as described
therein, (A) neither the Company nor the Bank has incurred any material
liabilities or obligations, direct or contingent, or entered into any
material transactions not in the ordinary course of business; (B) neither
the Company nor the Bank has purchased any of their outstanding capital
stock or declared, paid or otherwise made any dividend or distribution of
any kind on their capital stock or otherwise; and (C) there has not been
any material adverse change in the condition (financial or otherwise),
business, affairs, prospects or results of operations or any material
change in the capital stock, short-term debt or long-term debt of either
the Company or the Bank.
(v) The Shares to be sold by the Company pursuant to this Agreement
have been duly and validly authorized and, when issued, delivered and paid
for pursuant to this Agreement, will be validly issued, fully paid and
nonassessable, and will conform to the description thereof contained in the
Prospectus.
(vi) This Agreement has been duly authorized, executed and delivered
by the Company and is a legal, valid and binding agreement of the Company
enforceable in accordance with its terms except as enforceability of the
Agreement may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting creditors' rights generally and
by general equity principles.
(vii) Neither the Company nor the Bank is in violation of their
respective charters or by-laws. Neither the Company nor the Bank is in
violation of or in breach of or in default in (nor has any event occurred
that with notice or lapse of time, or both, would be a breach of or a
default in) the performance of any obligation, agreement or condition
contained in any agreement, lease, contract, permit, license, franchise
agreement, mortgage, loan agreement, debenture, note, deed of trust, bond,
indenture or other evidence of indebtedness or any other instrument or
obligation (collectively, "Obligations and Instruments") to which either
the Company or the Bank is a party or by which the Company or the Bank or
any of their respective properties or assets is bound or affected (except
for such contravention or default as would not have a Material Adverse
Effect). Neither the Company nor the Bank is in violation of any statute,
law, code, ordinance, bylaw, judgment, decree, order, rule or regulation
(collectively, "Laws") applicable to either the Company or the Bank or any
of their respective properties or assets that, alone, or together with
other violations of Laws would result in a Material Adverse Effect. To the
best knowledge of the Company, no other party under any contract or other
agreement to which the Company or the Bank is a party is in material
default thereunder except for such defaults as would not individually or in
the aggregate result in a Material Adverse Effect.
(viii) The execution, delivery and performance of this Agreement and
delivery of the Shares by the Company and compliance by the Company with
all the provisions hereof and the consummation of the transactions
contemplated hereby will not, alone or upon notice or the passage of time
or both (A) to the best knowledge of the Company, after due inquiry,
require any consent, approval, authorization or other order of any court,
regulatory body, administrative agency or other governmental body or third
party (except such as may be required under the Act and the securities or
Blue Sky laws of the various states or by the NASD); (B) result in the
creation or imposition of any lien, charge or encumbrance upon any of the
properties or assets of the Company or the Bank pursuant to the terms and
provisions of any Obligation or Instrument; (C) conflict with or constitute
a breach or default under any Obligation or Instrument to which the Company
or the Bank is a party or by which the Company or any of its properties or
assets is bound, (except for such creation, conflict, breach or default as
would not have a Material Adverse Effect); or (D) assuming compliance with
the Act and all applicable state securities or Blue Sky laws, violate or
conflict with any Laws applicable to the Company or the Bank or any of
their respective properties or assets (except for such violation or
conflict as could not have a Material Adverse Effect). No action, suit or
proceeding before any court or arbitrator or any governmental body, agency
or official (domestic or foreign) is pending against or, to the best
knowledge of the Company or the Bank, threatened against the Company, that,
if adversely determined, could reasonably be expected to, in any manner,
invalidate this Agreement.
(ix) Except as set forth in the Prospectus, there is no action, suit,
proceeding, inquiry or investigation, governmental or otherwise before any
court, arbitrator or governmental agency or body (collectively,
"Proceedings") pending to which either the Company or the Bank is a party
or to which any of their respective properties or assets are subject, that,
if determined adversely to the Company or the Bank, might result in a
Material Adverse Effect, or that might materially and adversely affect the
properties or assets thereof, or that seeks to restrain, enjoin, prevent
the consummation of or otherwise challenge the issuance or sale of any of
the Shares to be sold hereunder, and, to the best knowledge of the Company
after due inquiry, no such Proceedings are threatened or contemplated.
(x) There is no contract, document, agreement or transaction to which
either the Company or the Bank is a party, or that involved or involves the
Company or the Bank or any of their respective properties or assets that
are required to be described in or filed as exhibits to the Registration
Statement or the Prospectus by the Act that have not been so described or
filed.
(xi) No action has been taken with respect to the Company, and, to the
best knowledge of the Company, no statute, rule or regulation or order has
been enacted, adopted or issued by any governmental agency, that suspends
the effectiveness of the Registration Statement, prevents or suspends the
use of any Preliminary Prospectus or the Prospectus or suspends the sale of
the Shares in any jurisdiction referred to in Section 5(g) hereof.
(xii) No injunction, restraining order or order of any nature by a
federal or state court of competent jurisdiction has been issued with
respect to the Company that might prevent the issuance of the Shares,
suspend the effectiveness of the Registration Statement, prevent or suspend
the use of any Preliminary Prospectus or the Prospectus or suspend the sale
of the Shares in any jurisdiction referred to in Section 5(g) hereof; and
every request of the Commission, or any securities authority or agency of
any jurisdiction, for additional information (to be included in the
Registration Statement or the Prospectus or otherwise) has been complied
with in all material respects;
(xiii) Neither the Company nor the Bank has violated any foreign,
federal, state or local law or regulation relating to the protection of
human health and safety, or wastes, pollutants or contaminants
("Environmental Laws") that, in each case or in the aggregate, might result
in a Material Adverse Effect. None of the property leased by the Company or
the Bank is contaminated with any waste or hazardous substances, nor may
the Company or the Bank be deemed an "owner or operator" of a "facility" or
"vessel" that owns, possesses, transports, generates, discharges or
disposes of a "hazardous substance" as those terms are defined in (S)9601
of the Comprehensive Response Compensation and Liability Act of 1980,
U.S.C. (S)9601 et seq.
(xiv) The Company and the Bank are each in compliance in all material
respects with all presently applicable provisions of the Employee
Retirement Income Security Act of 1974, as amended ("ERISA"). Neither the
Company nor the Bank maintains or contributes to, or since the inception of
the respective companies, has maintained or contributed to, any "employee
pension benefit plan" (as defined in Section 3(2) of ERISA) other than the
Bank's Savings and Profit Sharing Plan (which is maintained pursuant to
Section 401(k) of the Internal Revenue Code of 1986, as amended) described
in the Prospectus.
(xv) No labor dispute with the employees of the Company exists, or to
the best knowledge of the Company is imminent, that could result in a
Material Adverse Effect. Neither the Company nor the Bank has violated any
federal, state or local law relating to discrimination in the hiring,
promotion or pay of employees nor any applicable foreign, federal or state
wage and hour laws.
(xvi) The Company and the Bank hold such permits, licenses, franchises
and authorizations of governmental or regulatory authorities or third
parties ("Permits"), as are necessary to own, lease and operate their
respective properties and assets and to conduct their respective
businesses, except where
the failure to have any such Permit would not have a Material Adverse
Effect. The Company and the Bank have fulfilled and performed all of their
respective material obligations with respect to such Permits and no event
has occurred that allows, or after notice or lapse of time, or both would
allow, revocation or termination thereof or result in any other material
impairment of the rights of the holder of any such Permit. Except as
described in the Prospectus, such Permits contain no restrictions that are
materially burdensome to the Company or the Bank.
(xvii) Neither the Company nor the Bank is conducting and neither
intends to conduct their respective business in a manner in which it would
become, an "investment company" or a company "controlled" by an "investment
company" within the meaning of the Investment Company Act of 1940, as
amended (the "Investment Company Act").
(xviii) The Company and the Bank have good and marketable title, free
and clear of all liens, claims, encumbrances and restrictions (except liens
for taxes not yet due and payable) to all property and assets described in
the Registration Statement as being owned by either of them respectively.
All leases to which the Company or the Bank is a party are subsisting,
valid and binding, and no default of the Company or the Bank or, to the
best knowledge of the Company, any other person has occurred or is
continuing thereunder that might result in a Material Adverse Effect. The
Company and the Bank enjoy peaceful and undisturbed possession under all
such leases to which either is a party as lessee with such exceptions as do
not materially interfere with the use made thereof by the Company or the
Bank.
(xix) The Company and the Bank maintain reasonably adequate insurance
for the conduct of their respective businesses in accordance with prudent
business practices with reputable third-party insurers.
(xx) Xxxxxx Xxxxxxxx LLP, the accounting firm that has certified or
reviewed, or shall certify or review, the financial statements and
supporting schedules filed or to be filed with the Commission as part of
the Registration Statement and the Prospectus, is an independent public
accounting firm with respect to the Company as required by the Act.
(xxi) The consolidated financial statements of the Company, together
with related notes and schedules of the Company included in the
Registration Statement and the Prospectus, are accurate and present fairly
the financial position, results of operations and cash flows of the Company
at the indicated dates and for the indicated periods. The audited
consolidated financial statements have been prepared in accordance with
generally accepted accounting principles ("GAAP") consistently applied
throughout the periods involved, and all adjustments necessary for a fair
presentation of results for such periods have been made; any unaudited
financial statements have been prepared on a basis substantially consistent
with that of the audited consolidated financial statements included in the
Registration Statement and the Prospectus. The summary and selected
financial and operating data included in the Registration Statement and the
Prospectus present fairly the information shown therein and have been
compiled on a basis consistent with the audited and any unaudited financial
statements, as the case may be, included therein. The pro forma information
included in the Prospectus present fairly the information shown therein,
have been prepared in accordance with GAAP and the Commission's rules and
guidelines with respect to pro forma financial statements and other pro
forma information and have been properly compiled on the pro forma basis
described therein, and the assumptions used in the preparation thereof are
reasonable and the adjustments used therein are appropriate under the
circumstances.
(xxii) Neither the filing of the Registration Statement or any
amendment thereto nor the offer or sale of the Shares as contemplated by
this Agreement gives rise to any rights, nor do any rights exist, for or
relating to registration under the Act of any securities of the Company
that have not been waived. There are no preemptive rights with respect to
the offer and sale of the Shares as contemplated by this Agreement.
(xxiii) All material disclosure regarding Year 2000 compliance that is
required to be disclosed under the Act has been included in the Prospectus.
Neither the Company nor the Bank has reason to believe that it will incur
material operating expenses or costs to insure that its information systems
will be Year 2000 compliant, other than as disclosed in the Prospectus.
(xxiv) The Company and the Bank have filed or caused to be filed, or
has properly filed extensions for, all foreign, federal, state and local
income, value added and franchise tax returns and have paid all taxes and
assessments shown thereon as due, except for such taxes and assessments as
are disclosed or adequately reserved against and that are being contested
in good faith by appropriate proceedings, promptly instituted and
diligently conducted. All material tax liabilities are adequately provided
for on the books of the Company or the Bank, and there is no material tax
deficiency that has been or might be asserted against the Company or the
Bank that is not so provided for.
(xxv) The Company and the Bank own or possess, or can acquire on
reasonable terms, the patents, patent rights, licenses, inventions,
copyrights, know-how (including trade secrets and other unpatented and or
unpatentable proprietary or confidential information, systems or
procedures), trademarks, service marks and trade names (collectively,
"Patents and Proprietary Rights") currently employed by them in connection
with the businesses they now operate except where the failure to so own,
possess or acquire such Patents and Proprietary Rights would not have a
Material Adverse Effect. Neither the Company nor the Bank has received any
notice or is otherwise aware of any infringement of or conflict with
asserted rights of others with respect to any Patent or Proprietary Rights
that, if the subject of any unfavorable decision, ruling or finding, singly
or in the aggregate, could result in a Material Adverse Effect.
(xxvi) The Company and the Bank are conducting and intend to conduct
their respective businesses so as to comply in all material respects with
applicable federal, state, local and foreign government Laws, except where
the failure to comply would not have a Material Adverse Effect. Except as
set forth in the Registration Statement and the Prospectus, neither the
Company nor the Bank is charged with or, to the Company's best knowledge,
under investigation with respect to, any material violation of any such
Laws;
(xxvii) The Company has not taken and will not take, directly or
indirectly, any action designed to or which has constituted or that might
reasonably be expected to cause or result, under the Exchange Act or
otherwise, in stabilization or manipulation of the price of any security of
the Company to facilitate the sale or resale of the Shares.
(xxviii) None of the Company, the Bank nor, to the best knowledge of
the Company, any employee or agent of the Company or the Bank has made any
payment of funds of the Company or the Bank or received or retained any
funds in violation of any Law (including, without limitation, the Foreign
Corrupt Practices Act) or of a character required to be disclosed in the
Prospectus. Neither the Company nor the Bank has, at any time during the
past five years, (A) made any unlawful contributions to any candidate for
any political office, or failed fully to disclose any contribution in
violation of any Law, or (B) made any unlawful payment to state, federal or
foreign government officer or officers, or other person charged with
similar public or quasi-public duty.
(xxix) The Company and the Bank maintain a system of internal
accounting controls sufficient to provide reasonable assurance that (A)
transactions are executed in accordance with management's general or
specific authorizations, (B) transactions are recorded as necessary to
permit preparation of financial statements in conformity with GAAP and to
maintain asset accountability, and (C) access to assets is permitted only
in accordance with management's general or specific authorization.
(xxx) The Company has not distributed and will not distribute any
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.
(xxxi) Other than as contemplated by this Agreement or described in
the Registration Statement, the Company has not incurred any liability for
any finder's or broker's fee or agent's commission in connection with the
execution and delivery of this Agreement or the consummation of the
transactions contemplated hereby.
(xxxii) The Bank is in good standing with the Office of Banks and Real
Estate (the "OBRE"), and the activities of the Company and the Bank are
permitted under applicable federal and state banking Laws. The Company has
all necessary approvals, including the approvals of the OBRE and the FRB,
to own the capital stock of the Bank. Neither the Company nor the Bank is a
party or subject to any agreement or memorandum with, or directive or order
issued by, the FRB, the OBRE, the Office of the Illinois Commissioner of
Banks and Real Estate (the "Commissioner"), the FDIC or other bank
regulatory authority having jurisdiction over it (the "Banking
Regulators"), which imposes any restrictions or requirements not generally
applicable to bank holding companies or commercial banks. Neither the
Company nor the Bank is subject to any directive from any Banking
Regulators to make any material change in the method of conducting their
respective businesses, and no such directive is pending or threatened by
any of such Banking Regulators.
(b) Any certificate signed by any officer of the Company and delivered to
you or to counsel for the Underwriters shall be deemed a representation and
warranty made by the Company to each Underwriter as to the matters covered
thereby, and shall be deemed incorporated herein in its entirety and shall be
effective as if such representation and warranty were made herein.
7. Indemnification.
(a) The Company agrees to indemnify and hold harmless each of the
Underwriters and each person, if any, who controls each of the Underwriters
within the meaning of Section 15 of the Act or Section 20 of the Exchange
Act (the "indemnified parties") from and against any and all losses,
claims, damages, liabilities and judgments caused by, arising out of,
related to or based upon any untrue statement or alleged untrue statement
of a material fact contained in the Registration Statement (as amended or
supplemented if the Company shall have furnished any amendments or
supplements thereto), including the information deemed to be part of the
Registration Statement at the time of effectiveness pursuant to Rule 430A,
if applicable, or the Prospectus or any Preliminary Prospectus or caused by
any omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not
misleading; provided, however, that the Company shall not be liable in any
such case to the extent that such losses, claims, damages, liabilities or
judgments are caused by an untrue statement or omission made or omitted in
reliance upon, and in conformity with, information relating to the
Underwriters furnished in writing to the Company by or on behalf of the
Underwriters with your consent expressly for use therein.
(b) In case any action shall be brought against any of the indemnified
parties, based upon any Preliminary Prospectus, the Registration Statement
or the Prospectus or any amendment or supplement thereto and with respect
to which indemnity may be sought against the Company such indemnified
parties shall promptly notify the Company in writing (but the failure so to
notify shall not relieve the Company of any liability that it may otherwise
have to such indemnified parties under this Section 7 (although the
Company's liability to an indemnified party may be reduced on a monetary
basis to the extent, but only to the extent, it has been prejudiced by such
failure on the part of such indemnified party)) and the Company shall
promptly assume the defense thereof, including the employment of counsel
satisfactory to such indemnified party and payment of all fees and
expenses. The indemnified parties shall each have the right to employ
separate counsel in any such action and participate in the defense thereof,
but the fees and expenses of such counsel shall be at the expense of such
indemnified parties unless (i) the employment of such counsel shall have
been specifically authorized by the Company, (ii) the Company
shall have failed to assume promptly the defense or to employ counsel
reasonably satisfactory to such indemnified party or (iii) the named
parties to any such action (including any impleaded parties) include both
the indemnified parties and the Company, and an indemnified party shall
have been advised by counsel that there may be one or more legal defenses
available to one or more of the indemnified parties that are different from
or additional to those available to the Company (in which case the Company
shall not have the right to assume the defense of such action on behalf of
such indemnified party, it being understood, however, that the Company
shall not, in connection with any one such action or separate but
substantially similar or related actions in the same jurisdiction arising
out of the same general allegations or circumstances, be liable for the
fees and expenses of more than one separate firm of attorneys (in addition
to any local counsel) for the indemnified parties, which firm shall be
designated in writing by EVEREN Securities, Inc., and that all such fees
and expenses shall be reimbursed promptly as they are incurred). The
Company shall not be liable for any settlement of any such action effected
without their written consent, which consent shall not be unreasonably
withheld, but if settled with the written consent of the Company, the
Company agrees to indemnify and hold harmless the indemnified parties from
and against any and all loss or liability by reason of such settlement.
Notwithstanding the foregoing sentence, if at any time an indemnified party
shall have requested an indemnifying party to reimburse the indemnified
party for fees and expenses of counsel as contemplated by the second
sentence of this paragraph, the indemnifying party agrees that it shall be
liable for any settlement of any proceeding effected without its written
consent if (i) such settlement is entered into more than 10 business days
after delivery by registered or certified mail to the proper address for
notice to such indemnifying party of the aforesaid request (whether or not
such delivery is accepted) and (ii) such indemnifying party shall not have
reimbursed the indemnified party in accordance with such request prior to
the date of such settlement. No indemnifying party shall, without the prior
written consent of the indemnified party, effect any settlement of any
pending or threatened proceeding in respect of which any indemnified party
is or could have been a party and indemnity could have been sought
hereunder by such indemnified party, unless such settlement includes an
unconditional and complete release in writing of such indemnified party
from any and all liability on claims that are the subject matter of such
proceeding, which such settlement shall be in form and substance
satisfactory to the indemnified party. The indemnification provided in this
Section 7 will be in addition to any liability which the Company may
otherwise have.
(c) The Underwriters agree, severally and not jointly, to indemnify
and hold harmless the Company, its directors, its officers who sign the
Registration Statement and any person controlling the Company within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act, to the
same extent as the foregoing indemnity from the Company to the Underwriters
but only with reference to information stated in or omitted from the
Registration Statement, the Prospectus or any Preliminary Prospectus in
reliance upon, and in conformity with, information relating to the
Underwriters furnished in writing to the Company by or on behalf of the
Underwriters with your consent expressly for use therein. In case any
action shall be brought against the Company, any of the Company's
directors, any such officers or any person controlling the Company based on
the Registration Statement, the Prospectus or any Preliminary Prospectus
and in respect of which indemnity may be sought against the Underwriters,
the Underwriters shall have the rights and duties given to the Company by
Section 7(b) hereof (except that if the Company shall have assumed the
defense thereof, such Underwriter shall not be required to do so, but may
employ separate counsel therein and participate in the defense thereof but
the fees and expenses of such counsel shall be at the expense of such
Underwriter), and the Company, its directors, any such officers and any
person controlling the Company shall have the rights and duties given to
the "indemnified parties" by Section 7(b) hereof.
(d) If the indemnification provided for in this Section 7 is for any
reason unavailable to an indemnified party or insufficient to hold such
indemnified party harmless in respect of any losses, claims, damages,
liabilities or judgments referred to therein, then each indemnifying party,
in lieu of indemnifying such indemnified party, shall contribute to the
amount paid or payable by such indemnified party as a result of
such losses, claims, damages, liabilities and judgments (i) in such
proportion as is appropriate to reflect the relative benefits received by
the Company on the one hand and the Underwriters on the other from the
offering of the Securities or (ii) if the allocation provided in clause (i)
above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause
(i) above but also the relative fault of the Company on the one hand and
the Underwriters on the other in connection with the statements or
omissions or alleged statements or omissions that resulted in such losses,
claims, damages, liabilities or judgments, 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 and sale of the
Shares (before deducting expenses) received by the Company on the one hand,
and the total underwriting discounts and commissions received by the
Underwriters on the other, bears to the total price to the public of the
Shares, in each case as set forth in the table on the cover page of the
Prospectus. The relative fault of the Company and the Underwriters shall be
determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or the alleged
omission to state a material fact relates to information supplied by the
Company or the Underwriters 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 contribution pursuant to this Section 7(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 in the immediately
preceding paragraph. The amount paid or payable by an indemnified party as
a result of the losses, claims, damages, liabilities or judgments referred
to in the immediately preceding paragraph shall be deemed to include,
subject to the limitations set forth above, any legal or other expenses
reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 7, no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at
which the Shares underwritten by it and distributed to the public were
offered to the public exceeds the amount of any damages which such
Underwriter has otherwise paid or been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The Underwriters'
obligation in this Section 7(d) to contribute are several in proportion to
the respective amount of Shares purchased hereunder by each Underwriter and
not joint.
8. Conditions of the Obligations of the Underwriters. The obligations
of the several Underwriters to purchase and pay for the Firm Shares on the
Closing Date and the Additional Shares on any Option Closing Date are
subject to the fulfillment of each of the following conditions on or prior
to the Closing Date and each Option Closing Date:
(a) All the representations and warranties of the Company contained in
this Agreement and in any certificate delivered hereunder shall be true and
correct on the Closing Date and each Option Closing Date with the same
force and effect as if made on and as of the Closing Date or Option Closing
Date, as applicable, except to the extent such representations and
warranties are stated to be made as of a specific date, in which case, such
representations and warranties shall be true and correct as of such date.
The Company shall not have failed at or prior to the Closing Date or Option
Closing Date, as applicable, to perform or comply in all respects with any
of the agreements herein contained and required to be performed or complied
with by the Company at or prior to the Closing Date.
(b) If the Registration Statement is not effective at the time of the
execution and delivery of this Agreement, the Registration Statement shall
have become effective (or, if a post-effective amendment is required to be
filed pursuant to Rule 430A under the Act, such post-effective amendment
shall have become effective) not later than 9:30 A.M., New York City time,
on the date immediately following the date
of this Agreement or such later time as you may approve in writing or, if
the Registration Statement has been declared effective prior to the
execution and delivery hereof in reliance on Rule 430A, the Prospectus
shall have been filed as required hereby, if necessary; and at the Closing
Date and each applicable Option Closing Date, no stop order suspending the
effectiveness of the Registration Statement shall have been issued and no
proceedings for that purpose shall have been commenced or shall be pending
before or, to the best knowledge of the Underwriters or the Company,
threatened by the Commission; every request for additional information on
the part of the Commission shall have been complied with to the
Underwriters' satisfaction; no stop order suspending the sale of the Shares
in any jurisdiction referred to in Section 5(g) shall have been issued and
no proceeding for that purpose shall have been commenced or shall be
pending or threatened.
(c) The Shares shall have been qualified for sale, if applicable,
under the Blue Sky laws of such states as shall have been specified by the
Representatives.
(d) The legality and sufficiency of the authorization, issuance and
sale or transfer and sale of the Shares hereunder, the validity and form of
the certificates representing the Shares, the execution and delivery of
this Agreement and all corporate proceedings and other legal matters
incident thereto, and the form of the Registration Statement and the
Prospectus (except financial statements) shall have been approved by
counsel for the Underwriters exercising reasonable judgment, and neither
the Registration Statement nor the Prospectus, nor any amendment or
supplement thereto, shall contain an untrue statement of material fact, or
omit to state a fact that is material and is required to be stated therein
or is necessary to make the statements therein not misleading.
(e) Subsequent to the execution and delivery of this Agreement, there
shall not have occurred any material change, or any material development
involving a prospective change, in or affecting particularly the business
or properties of the Company or the Bank whether or not arising in the
ordinary course of business, that, in the judgment of the Representatives,
makes it impractical or inadvisable to proceed with the public offering or
purchase of the Shares as contemplated hereby.
(f) You shall have received an agreement from each of the officers
and directors of the Company and from ______________ (collectively, the
"Additional Stockholders"), whereby each such Additional Stockholder agrees
to be bound by an agreement to the same effect as the covenants set forth
in the third paragraph of Section 3 of this Agreement (the "Lock-Up
Agreements").
(g) You shall have received an opinion (satisfactory to you and your
counsel) dated the Closing Date or the Option Closing Date, as the case may
be, of Vedder, Price, Xxxxxxx & Kammholz, counsel for the Company, to the
effect that:
(i) The Company has been duly incorporated and is a validly
existing corporation in good standing under the laws of Delaware. The
Bank has been duly organized and is validly existing as a an Illinois
banking corporation in good standing under the laws of Illinois. Each
of the Company and the Bank has all necessary power and authority,
corporate or otherwise, to own, lease and operate their respective
properties and assets and to conduct their respective businesses as
described in the Registration Statement and the Prospectus, and each
is duly qualified to do business as a foreign corporation and is in
good standing in each jurisdiction in which its ownership or lease of
real property or the conduct of its business makes such qualification
necessary and in which the failure to so qualify could have a Material
Adverse Effect.
(ii) The Company has all necessary corporate power and authority
to enter into and perform this Agreement, and the performance of the
Company's obligations hereunder has been duly authorized by all
necessary corporate action; this Agreement has been duly executed and
delivered by and on behalf of the Company, and, assuming due
authorization, execution and delivery of this Agreement by the
Underwriters, constitutes a legal, valid and binding agreement of the
Company enforceable in accordance with its terms, except as
enforceability of the same may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting creditors'
rights generally and by general equity principles; no approval,
consent, order, authorization, designation, declaration or filing by
or with any regulatory, administrative or other governmental body or,
to the best of such counsel's knowledge, after due inquiry, third
party, is necessary in connection with the execution and delivery of
this Agreement and the consummation of the transactions contemplated
herein (other than as may be required by the NASD or as required by
state securities or Blue Sky laws, as to which such counsel need
express no opinion) except such as have been obtained or made, with
counsel specifying the same.
(iii) The authorized, issued and outstanding capital stock of the
Company is as set forth in the Prospectus under "Capitalization;" and
all of the shares of outstanding capital stock of the Company have
been duly authorized and validly issued, are fully paid and non-
assessable and were not issued in violation of any preemptive rights
or, to the best of such counsel's knowledge, other rights to subscribe
for or purchase securities. Except as set forth in the Registration
Statement and the Prospectus, to the best of such counsel's knowledge,
no options, warrants or other rights to convert any obligation into,
or exchange any securities for, shares of capital stock or ownership
interests in the Company are outstanding.
(iv) To the best of such counsel's knowledge, after due inquiry,
neither the filing of the Registration Statement or any amendment
thereto nor the offer and sale of the Shares as contemplated by this
Agreement gives rise to any rights, nor do any rights exist, for or
relating to the registration under the Act of any securities of the
Company that have not been waived.
(v) The Registration Statement has become effective under the
Act, the Prospectus has been filed as required by this Agreement, if
necessary, and to the best of such counsel's knowledge, after
telephonic inquiry of the Commission, no stop order suspending the
effectiveness of the Registration Statement has been issued and no
proceedings for that purpose are pending or have been initiated or
threatened by the Commission. The Registration Statement (including
the information deemed to be part of the Registration Statement at the
time of effectiveness pursuant to Rule 430A, if applicable), the
Prospectus and each amendment or supplement thereto (except for the
financial statements and other statistical or financial data included
therein, as to which such counsel need express no opinion) comply as
to form in all material respects with the requirements of the Act.
(vi) Neither the Company nor the Bank is an "investment company"
or a company controlled by an "investment company" within the meaning
of the Investment Company Act.
(vii) To the best of such counsel's knowledge, all of the issued
and outstanding capital stock of the Bank is owned by the Company,
free and clear of any security interest, mortgage, pledge, lien,
encumbrance, claim or equitable right.
(viii) The statements made in the Registration Statement under
the captions, "Capitalization," "Description of Capital Stock,"
"Management-Stock Incentive Plan" and "Legal Matters," to the extent
that they constitute summaries of documents referred to therein or
matters of law or legal conclusions, have been reviewed by such
counsel and are accurate in all material respects.
(ix) The descriptions in the Registration Statement and
Prospectus of contracts, instruments and other documents filed as
exhibits to the Registration Statement are accurate in all material
respects; such counsel does not know of any Proceedings required to be
described in the Prospectus that are not described, or of any
contracts or documents of a character required to be described in the
Registration Statement or the Prospectus or to be filed as exhibits to
the Registration Statement that were not described and filed as
required.
(x) The certificates for the Shares to be delivered hereunder are
in due and proper form, and when duly countersigned by the Company's
transfer agent and delivered to you or upon your order against payment
of the agreed consideration therefor in accordance with the provisions
of this Agreement, the Shares sold by the Company hereunder and
represented thereby will be duly authorized and validly issued, fully
paid and nonassessable.
(xi) Neither the filing of the Registration Statement or any
amendment nor the execution and performance of this Agreement will
contravene any of the provisions of, or result in a default under
(nor, to the best of such counsel's knowledge, has any event occurred
which with notice or lapse of time, or both, would constitute a breach
or default under), any Obligations and Instruments known to us to
which the Company is a party or by which its property is bound (except
for such contravention or default which would not have a Material
Adverse Effect); or violate any of the provisions of the Certificate
of Incorporation or by-laws of the Company or violate any Laws
applicable to the Company known to such counsel.
(xii) To the best of such counsel's knowledge, all offers and
sales of the Company's outstanding capital stock by or on behalf of
the Company were at the time of issuance exempt from the registration
requirements of the Act and were duly registered or the subject of an
available exemption from the registration requirements of the
applicable state securities or Blue Sky laws.
(xiii) Neither the Company nor the Bank is in violation of their
respective Charter. To the best of such counsel's knowledge, neither
the Company nor the Bank is in violation of any material provision of
their respective by-laws that would have a Material Adverse Effect.
(xiv) The execution and delivery of this Agreement, the issuance
and sale of the Shares by the Company as contemplated herein and the
fulfillment of the terms hereof by the Company will not violate the
Certificate of Incorporation or by-laws of the Company.
In addition, such counsel shall state that they have participated
in conferences with officers and other representatives of the Company,
representatives of the independent public accountants of the Company
and representatives of the Underwriters and their counsel, at which
the contents of the Registration Statement and the Prospectus and
related matters were discussed and, although such counsel is not
passing upon, and does not assume any responsibility for, the
accuracy, completeness or fairness of the statements contained in the
Registration Statement and the Prospectus (except as set forth above)
and has not made any independent check or verification thereof, on the
basis of the foregoing (relying as to materiality upon the statements
of officers and other representatives of the Company), no facts have
come to such counsel's attention that lead such counsel to believe
that either the Registration Statement or any amendment (including any
post-effective amendment) thereto at the time such Registration
Statement or amendment became effective, and as of the Closing Date
and any applicable Option Closing Date, contained or contains an
untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements
herein not misleading, or that the Prospectus or any amendment or
supplement thereto as of their respective dates and as of the Closing
Date and any applicable Option Closing Date contained or contains an
untrue statement of a material fact or omitted or omits to state a
material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they
were made, not misleading, except that such counsel need express no
opinion with respect to the financial statements, schedules and other
financial data included in the Registration Statement or the
Prospectus.
(h) You shall have received an opinion of Jenner & Block, counsel for
the Underwriters, dated the Closing Date or the Option Closing Date, as the
case may be, in form and substance reasonably satisfactory to you.
(i) You shall have received, in connection with the execution of this
Agreement and on the Closing Date and each Option Closing Date, a "cold comfort"
letter from Xxxxxx Xxxxxxxx LLP dated as of each such date in form and substance
satisfactory to you with respect to the financial statements and certain
financial information contained in the Registration Statement and the
Prospectus.
(j) You shall have received from the Company a certificate, signed by Xxxxx
X. Xxxxxxx and Xxxxxx X. Xxxxxxxxxx in their capacities as Chief Executive
Officer and Chief Financial Officer of the Company, respectively, addressed to
the Underwriters and dated the Closing Date or Option Closing Date, as
applicable, to the effect that:
(i) such officer does not know of any Proceedings instituted,
threatened or contemplated against the Company of a character required
to be disclosed in the Prospectus that are not so disclosed; such
officer does not know of any material contract required to be filed as
an exhibit to the Registration Statement which is not so filed;
(ii) such officer has carefully examined the Registration
Statement and the Prospectus and all amendments or supplements thereto
and, in such officer's opinion, such Registration Statement or such
amendment as of its effective date and as of the Closing Date, and the
Prospectus or such supplement as of its date and as of the Closing
Date, did not contain an untrue statement of 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 and, in such
officer's opinion, since the effective date of the Registration
Statement, no event has occurred or information become known that
should have been set forth in an amendment to the Registration
Statement or a supplement to the Prospectus which has not been so set
forth in such amendment or supplement;
(iii) the representations and warranties of the Company set forth
in Section 6(a) of this Agreement are true and correct as of the date
of this Agreement and as of the Closing Date or the Option Closing
Date, as the case may be, and the Company has complied with all the
agreements and satisfied all the conditions on its part to be
performed or satisfied at or prior to such Closing Date; and
(iv) the Commission has not issued an order preventing or
suspending the use of the Prospectus or any preliminary prospectus
filed as a part of the Registration Statement or any amendment
thereto; no stop order suspending the effectiveness of the
Registration Statement has been issued; and, to the best knowledge of
the respective signers, no proceedings for that purpose have been
instituted or are pending or contemplated under the Act.
The delivery of the certificate provided for in this subparagraph
shall be and constitute a representation and warranty of the Company
as to the facts required in the immediately foregoing clauses (iii)
and (iv) of this subparagraph to be set forth in said certificate.
(k) The Shares shall have been approved for trading upon official notice of
issuance on The Nasdaq National Market.
(l) You and your counsel shall have received on or before the Closing Date
or the Option Closing Date, as the case may be, such further documents,
opinions, certificates and schedules or instruments relating to the business,
corporate, legal and financial affairs of the Company as you and they shall have
reasonably requested from the Company.
9. Effective Date of Agreement, Termination and Defaults. This Agreement shall
become effective upon, and shall not be deemed delivered until, the later of (i)
execution of this Agreement and (ii) when notification of the effectiveness of
the Registration Statement has been released by the Commission.
This Agreement may be terminated at any time prior to the Closing Date and
any exercise of the option to purchase Additional Shares may be cancelled at any
time prior to any Option Closing Date by the Underwriters by written notice to
the Company 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 development involving a prospective
material adverse change in the condition, financial or otherwise, of the Company
or the earnings, affairs, management, or business of the Company, whether or not
arising in the ordinary course of business, that would, in the Representatives'
sole judgment, make it impracticable to market the Shares on the terms and in
the manner contemplated in the Prospectus; (ii) any outbreak or escalation of
hostilities or other national or international calamity or crisis or change in
economic conditions or in the financial markets of the United States that, in
the Representatives' judgment, is material and adverse and would, in the
Representatives' judgment, make it impracticable to market the Shares on the
terms and in the manner contemplated in the Prospectus; (iii) the suspension or
material limitation of trading in securities on New York Stock Exchange, the
American Stock Exchange or the Nasdaq Stock Market; (iv) the enactment,
publication, decree or other promulgation of any federal or state statute,
regulation, rule or order of any court or other governmental authority that in
the Representatives' opinion materially and adversely affects, or will
materially and adversely affect, the business or operations of the Company or
the Bank; (v) the declaration of a banking moratorium by either federal or
Illinois state authorities; (vi) the taking of any action by any Federal, state
or local government or agency in respect of its monetary or fiscal affairs that
in the Representatives' opinion has a material adverse effect on the financial
markets in the United States; or (vii) there shall be any change in financial
markets or in political, economic or financial conditions which, in the opinion
of the Representatives, either renders it impracticable or inadvisable to
proceed with the offering and sale of the Shares on the terms set forth in the
Prospectus or materially adversely affects the market for the Shares.
If on the Closing Date or on any Option Closing Date, as the case may be,
any of the Underwriters shall fail or refuse to purchase the Firm Shares or
Additional Shares, as the case may be, which it has agreed to purchase hereunder
on such date, and the aggregate number of Firm Shares or Additional Shares, as
the case may be, that such defaulting Underwriter or Underwriters agreed but
failed or refused to purchase does not exceed, in the aggregate, 10% of the
total number of Shares that all Underwriters are obligated to purchase on such
date, each non-defaulting Underwriter shall be obligated, in the proportion
which the number of Firm Shares set forth opposite its name in Schedule I hereto
bears to the total number of Firm Shares or Additional Shares, as the case may
be, that all the non-defaulting Underwriters have agreed to purchase, or in such
other proportion as you may specify, to purchase the Firm Shares or Additional
Shares, as the case may be, that such defaulting Underwriter or Underwriters
agreed but failed or refused to purchase on such date. If, on the Closing Date
or on the Option Closing Date, as the case may be, any of the Underwriters shall
fail or refuse to purchase the Firm Shares or Additional Shares, as the case may
be, in an amount that exceeds, in the aggregate, 10% of the total number of the
Shares, and arrangements satisfactory to you and the Company for the purchase of
such Shares are not made within 48 hours after such default, this Agreement
shall terminate without liability on the part of the non-defaulting Underwriters
and the Company, except as otherwise provided in this Section 9. In any such
case that does not result in termination of this Agreement, either you or the
Company may postpone the Closing Date or the Option Closing Date, as the case
may be, for not longer than seven days, in order that the required changes, if
any, in the Registration Statement and the Prospectus or any other documents or
arrangements may be effected. Any action taken under this paragraph shall not
relieve a defaulting Underwriter from liability in respect of any default of any
such Underwriter under this Agreement.
The indemnity and contribution provisions and other agreements,
representations and warranties of the Company set forth in or made pursuant to
this Agreement shall remain operative and in full force and effect, and will
survive delivery of and payment for the Shares, regardless of (i) any
investigation, or statement as to the results thereof, made by or on behalf of
any of the Underwriters or by or on behalf of the Company, (ii) acceptance of
the Shares and payment therefor hereunder or (iii) termination of this
Agreement. Notwithstanding any termination of this Agreement, the Company shall
be liable for and shall pay all expenses it has agreed to pay pursuant to
Section 5(l).
Except as otherwise provided, this Agreement has been and is made solely
for the benefit of, and shall be binding upon, the Company, the Underwriters,
any indemnified person referred to herein and their respective successors and
assigns, all as and to the extent provided in this Agreement, and no other
person shall acquire or have any right under or by virtue of this Agreement. The
terms "successors and assigns" shall not include a purchaser of any of the
Shares from any of the several Underwriters merely because of such purchase.
10. Effectiveness of Registration Statement. You and the Company will use your,
its and their best efforts to cause the Registration Statement to become
effective, if it has not yet become effective, and to prevent the issuance of
any stop order suspending the effectiveness of the Registration Statement and,
if such stop order be issued, to obtain as soon as possible the lifting thereof.
11. Miscellaneous. All communications hereunder will be in writing and, if sent
to the Underwriters will be mailed, delivered or telegraphed and confirmed to
you c/o EVEREN Securities, Inc., 00 Xxxx Xxxxxx Xxxxx, Xxxxxxx, Xxxxxxxx 00000-
1994, Attention: Syndicate Department, with a copy to Jenner & Block, Xxx XXX
Xxxxx, Xxxxxxx, Xxxxxxxx 00000, Attention: Xxxxx X. Xxxxxxxxxx and Xxxxxxxxx
Xxxxxx; if sent to the Company will be mailed, delivered or telegraphed and
confirmed to the Company at its corporate headquarters with a copy to Vedder,
Price, Xxxxxxx & Kammholz, 000 Xxxxx XxXxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000,
Attention: Xxxxxxxx X. Xxxxx.
THIS AGREEMENT SHALL BE GOVERNED AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF ILLINOIS WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF
LAW THEREOF.
This Agreement may be signed in various counterparts which together
shall constitute one and the same instrument.
Please confirm that the foregoing correctly sets forth the agreement
among the Company and the several Underwriters, including you.
Very truly yours,
PRIVATEBANCORP, INC., a Delaware corporation
By:
Name:
Title:
The foregoing Underwriting Agreement
is hereby confirmed and accepted as
of the date first above written.
EVEREN Securities, Inc.
Xxxxxx, Xxxxxxxx & Company, Incorporated
Acting as Representatives of the
several Underwriters named in Schedule I.
By: EVEREN Securities, Inc.
By:
Name _________________
Title _________________
By: Xxxxxx, Xxxxxxxx & Company, Incorporated
By:
Name _________________
Title _________________
Schedule I
Number of
Firm Shares
to be
Underwriter Purchased
----------- -----------
EVEREN Securities, Inc.........................................
Xxxxxx, Xxxxxxxx & Company, Incorporated.......................
-------
TOTAL..................................................... 900,000
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