EXHIBIT 1.1
1,092,500 SHARES
WINTRUST FINANCIAL CORPORATION
COMMON STOCK
PURCHASE AGREEMENT
June __, 2001
U. S. BANCORP XXXXX XXXXXXX, INC.
U. S. Bancorp Center
000 Xxxxxxxx Xxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
As Representative of the several
Underwriters named in Schedule II hereto
Ladies and Gentlemen:
Wintrust Financial Corporation, an Illinois corporation (the "Company"),
and the stockholder of the Company listed in Schedule I hereto (the "Selling
Stockholder") severally propose to sell to the several Underwriters named in
Schedule II hereto (the "Underwriters") an aggregate of 1,092,500 shares (the
"Firm Shares") of Common Stock, no par value (the "Common Stock"), of the
Company. The Firm Shares consist of 850,000 authorized but unissued shares of
Common Stock to be issued and sold by the Company and 100,000 outstanding shares
of Common Stock to be sold by the Selling Stockholder. The Company has also
granted to the several Underwriters an option to purchase up to 142,500
additional shares of Common Stock on the terms and for the purposes set forth in
Section 3 hereof (the "Option Shares"). The Firm Shares and any Option Shares
purchased pursuant to this Agreement are herein collectively called the
"Securities."
The Company and the Selling Stockholder hereby confirm their agreement with
respect to the sale of the Securities to the several Underwriters, for whom you
are acting as representative (the "Representative").
1. Registration Statement and Prospectus. A registration statement on Form
S-3 (File No. 333-___________ ) with respect to the Securities, including a
preliminary form of prospectus, has been prepared by the Company in conformity
with the requirements of the Securities Act of 1933, as amended (the "Act"), and
the rules and regulations ("Rules and Regulations") of the Securities and
Exchange Commission (the "Commission") thereunder and has been filed with the
Commission; one or more amendments to such registration statement have also been
so prepared and have been, or will be, so filed; and, if the Company has elected
to rely upon Rule 462(b) of the Rules and Regulations to increase the size of
the offering registered under the Act, the Company will prepare and file with
the Commission a
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1 Including an option to purchase up to 142,500 additional shares to cover
over-allotments.
registration statement with respect to such increase pursuant to Rule 462(b).
Copies of such registration statement(s) and amendments and each related
preliminary prospectus have been delivered to you.
If the Company has elected not to rely upon Rule 430A of the Rules and
Regulations, the Company has prepared and will promptly file an amendment to the
registration statement and an amended prospectus (including a term sheet meeting
the requirements of Rule 434 of the Rules and Regulations). If the Company has
elected to rely upon Rule 430A of the Rules and Regulations, it will prepare and
file a prospectus (or a term sheet meeting the requirements of Rule 434)
pursuant to Rule 424(b) that discloses the information previously omitted from
the prospectus in reliance upon Rule 430A. Such registration statement
(including all documents (or portions thereof) incorporated by reference therein
under the Securities Exchange Act of 1934, as amended (the "1934 Act")) as
amended at the time it is or was declared effective by the Commission, and, in
the event of any amendment thereto after the effective date and prior to the
First Closing Date (as hereinafter defined), such registration statement as so
amended (but only from and after the effectiveness of such amendment), including
a registration statement (if any) filed pursuant to Rule 462(b) of the Rules and
Regulations increasing the size of the offering registered under the Act and
information (if any) deemed to be part of the registration statement at the time
of effectiveness pursuant to Rules 430A(b) and 434(d) of the Rules and
Regulations, is hereinafter called the "Registration Statement." The prospectus
included in the Registration Statement at the time it is or was declared
effective by the Commission is hereinafter called the "Prospectus," except that
if any prospectus (including any term sheet meeting the requirements of Rule 434
of the Rules and Regulations provided by the Company for use with a prospectus
subject to completion within the meaning of Rule 434 in order to meet the
requirements of Section 10(a) of the Rules and Regulations) filed by the Company
with the Commission pursuant to Rule 424(b) (and Rule 434, if applicable) of the
Rules and Regulations or any other such prospectus provided to the Underwriters
by the Company for use in connection with the offering of the Securities
(whether or not required to be filed by the Company with the Commission pursuant
to Rule 424(b) of the Rules and Regulations) differs from the prospectus on file
at the time the Registration Statement is or was declared effective by the
Commission, the term "Prospectus" shall refer to such differing prospectus
(including any term sheet within the meaning of Rule 434 of the Rules and
Regulations) from and after the time such prospectus is filed with the
Commission or transmitted to the Commission for filing pursuant to such Rule
424(b) (and Rule 434, if applicable) or from and after the time it is first
provided to the Underwriters by the Company for such use. The term "Preliminary
Prospectus" as used herein means any preliminary prospectus included in the
Registration Statement prior to the time it becomes or became effective under
the Act and any prospectus subject to completion as described in Rule 430A or
434 of the Rules and Regulations.
2. Representations and Warranties of the Company and the Selling
Stockholder.
(a) The Company represents and warrants to, and agrees with, the several
Underwriters as follows:
(i) No order preventing or suspending the use of any Preliminary
Prospectus has been issued by the Commission and each Preliminary
Prospectus, at the time of filing thereof, did not contain an untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading; except
that the foregoing shall not apply to statements in or omissions from any
Preliminary Prospectus in reliance upon, and in conformity with, written
information furnished to the Company by you, or by any Underwriter through
you, specifically for use in the preparation thereof.
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(ii) As of the time the Registration Statement (or any
post-effective amendment thereto, including a registration statement (if
any) filed pursuant to Rule 462(b) of the Rules and Regulations increasing
the size of the offering registered under the Act) is or was declared
effective by the Commission, upon the filing or first delivery to the
Underwriters of the Prospectus (or any supplement to the Prospectus
(including any term sheet meeting the requirements of Rule 434 of the Rules
and Regulations)) and at the First Closing Date and Second Closing Date (as
hereinafter defined), (A) the Registration Statement and Prospectus (in
each case, as so amended and/or supplemented) conformed or will conform in
all material respects to the requirements of the Act and the Rules and
Regulations, (B) the documents incorporated by reference in the
Registration Statement (as so amended) or from which information is so
incorporated by reference, when they became effective or were filed with
the Commission, as the case may be, conformed in all material respects to
the requirements of the 1934 Act and the Rules and Regulations, and when
read together and with the other information in the Registration Statement
(as so amended) did not or will not include an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading, (C) the
Registration Statement (as so amended) did not or will not include an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading, and (D) the Prospectus (as so supplemented) did not or will
not include an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances in which they are or were
made, not misleading; except that the foregoing shall not apply to
statements in or omissions from any such document in reliance upon, and in
conformity with, written information furnished to the Company by you, or by
any Underwriter through you, specifically for use in the preparation
thereof. If the Registration Statement has been declared effective by the
Commission, no stop order suspending the effectiveness of the Registration
Statement has been issued, and no proceeding for that purpose has been
initiated or, to the Company's knowledge, threatened by the Commission.
(iii) The consolidated financial statements of the Company,
together with the related notes, set forth in or incorporated by reference
into the Registration Statement and Prospectus comply in all material
respects with the requirements of the Act and fairly present the financial
condition of the Company as of the dates indicated and the results of
operations and changes in cash flows for the periods therein specified in
conformity with generally accepted accounting principles consistently
applied throughout the periods involved; and the supporting schedules
included in the Registration Statement present fairly the information
required to be stated therein. No other financial statements or schedules
are required to be included in the Registration Statement or Prospectus.
Each of Ernst & Young LLP and KPMG LLP, each of which has expressed its
opinion with respect to certain of the financial statements and schedules
filed as a part of the Registration Statement and included in or
incorporated into the Registration Statement and Prospectus, are
independent public accountants as required by the Act and the Rules and
Regulations.
(iv) 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 bank holding company under the Bank Holding Company Act of
1956, as amended (the "BHC Act"). The Company has thirteen direct or
indirect subsidiaries that have material ongoing operations. They 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
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corporation, association or other entity that conducts material ongoing
operations 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 subsidiary of the Company is a state bank,
trust company, corporation 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 such subsidiary of
the Company has full corporate and other power and authority to own, lease
and operate its properties and to conduct its business as described in and
contemplated by the Registration Statement and the Prospectus 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 Company, threatened. The
Company and each of its subsidiaries is duly qualified to transact business
as a foreign corporation 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 condition (financial or otherwise), earnings, business,
prospects or results of operations of the Company and its subsidiaries on a
consolidated basis. All of the issued and outstanding shares of capital
stock of the Company's 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.
(v) Except as contemplated in the Prospectus, subsequent to the
respective dates as of which information is given in the Registration
Statement and the Prospectus, neither the Company nor any of its
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 its subsidiaries,
or any material adverse change, or any development involving a prospective
material adverse change, in the general affairs, condition (financial or
otherwise), business, key personnel, property, prospects, net worth or
results of operations of the Company and its subsidiaries, taken as a
whole.
(vi) Except as set forth in the Prospectus, there is not
pending or, to the knowledge of the Company, threatened or contemplated,
any action, suit or proceeding to which the Company or any of its
subsidiaries is a party or of which any property or assets of the Company
is the subject before or by any court or governmental agency, authority or
body, or any arbitrator, which, individually or in the aggregate, might
result in any material adverse change in the condition
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(financial or otherwise), business, prospects, net worth or results of
operations of the Company and its subsidiaries, taken as a whole.
(vii) There are no statutes, regulations, contracts or
documents that are required to be described in the Registration Statement
and Prospectus or be filed as exhibits to the Registration Statement by the
Act or by the Rules and Regulations that have not been so described or
filed.
(viii) 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
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, any agreement or instrument 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, rule, regulation or decree
of any court or governmental agency or body having jurisdiction over the
Company or any of its properties; 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 Securities by the Company, except such as may be
required under the Act or state securities or blue sky laws; and the
Company has full power and authority to enter into this Agreement and to
authorize, issue and sell the shares of the Securities by the Company as
contemplated by this Agreement.
(ix) All of the issued and outstanding shares of capital stock
of the Company, including the outstanding shares of Common Stock, are duly
authorized and validly issued, fully paid and nonassessable, have been
issued in compliance with all federal and state securities laws, were not
issued in violation of or subject to any preemptive rights or other rights
to subscribe for or purchase securities that have not been waived in
writing (a copy of which have been delivered to counsel to the
Representative), and the holders thereof are not subject to personal
liability by reason of being such holders; the Securities which may be sold
hereunder by the Company 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; and the capital stock of the Company, including the
Common Stock, conforms to the description thereof in the Registration
Statement and Prospectus. 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 to which the Company is a
party or by which the Company is bound. 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. All of the issued and outstanding shares of capital stock of each
of the Company's subsidiaries have been duly and validly authorized and
issued and are fully paid and nonassessable, and, except as otherwise
described in the Registration Statement and Prospectus and except for any
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. Except as
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described in the Registration Statement and the Prospectus, there are no
options, warrants, agreements, contracts or other rights in existence to
purchase or acquire from the Company or any subsidiary of the Company any
shares of the capital stock of the Company or any subsidiary of the
Company. The Company has an authorized and outstanding capitalization as
set forth in the Registration Statement and the Prospectus.
(x) The Company and each of its subsidiaries holds, and is
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 its business and all such franchises, grants,
authorizations, licenses, permits, easements, consents, certifications and
orders are valid and in full force and effect; and the Company and each of
its subsidiaries is in compliance in all material respects with all
applicable federal, state, local and foreign laws, regulations, orders and
decrees.
(xi) The Company and its subsidiaries have good and marketable
title to all property (whether real or personal) described in the
Registration Statement and Prospectus as being owned by them, in each case
free and clear of all liens, claims, security interests, other encumbrances
or defects except such as are described in the Registration Statement and
the Prospectus. The property held under lease by the Company and its
subsidiaries is held by them under valid, subsisting and enforceable leases
with only such exceptions with respect to any particular lease as do not
interfere in any material respect with the current or proposed conduct of
the business of the Company or its subsidiaries.
(xii) The Company and each of its subsidiaries owns or
possesses all patents, patent applications, trademarks, service marks,
tradenames, trademark registrations, service xxxx registrations,
copyrights, licenses, inventions, trade secrets and rights necessary for
the conduct of the business of the Company and its subsidiaries as
currently carried on and as described in the Registration Statement and
Prospectus; except as stated in the Registration Statement and Prospectus,
no name which the Company or any of its subsidiaries uses and no other
aspect of the business of the Company or any of its 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 its subsidiaries has received any notice alleging any
such infringement or fee.
(xiii) Neither the Company nor any of its subsidiaries is in
violation of its respective charter or by-laws or in breach of or otherwise
in default, and no event has occurred which, with notice or lapse of time
or both, would constitute such a 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 any of them may be bound, or
to which any of the material property or assets of the Company or any of
its subsidiaries is subject.
(xiv) The Company and its subsidiaries have timely filed all
federal, state, local and foreign income and franchise tax returns required
to be filed and are not in default in the payment of any taxes which were
payable pursuant to said returns or any assessments with respect thereto,
other than any which the Company or any of its subsidiaries is contesting
in good faith.
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(xv) The Company has not distributed and will not distribute
any prospectus or other offering material in connection with the offering
and sale of the Securities other than any Preliminary Prospectus or the
Prospectus or other materials permitted by the Act to be distributed by the
Company.
(xvi) Additional shares of Common Stock have been approved for
inclusion in the Nasdaq National Market subject to official notice of
issuance.
(xvii) The Company and its subsidiaries 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.
(xviii) 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.
(xix) Neither the Company nor any of its affiliates is presently
doing business with the government of Cuba or with any person or affiliate
located in Cuba.
(xx) The Company carries, or is covered by, insurance in such
amounts and covering such risks as is adequate for the conduct of its
business and the value of its properties and as is customary for companies
engaged in similar businesses in similar industries.
(xxi) The Company is not and, after giving effect to the
offering and sale of the Securities, will not be an "investment company",
as such term is defined in the Investment Company Act of 1940, as amended.
(xxii) The Company has not taken, directly or indirectly, any
action causing or resulting in or which has constituted or which might
cause or result in stabilization or manipulation of any security of the
Company in connection with the sale or resale of the Securities in
violation of the Rules and Regulations, including, but not limited to
Regulation M, and the Company is not aware of any such action taken or to
be taken by any affiliate of the Company.
(xxiii) Each of the material contracts, agreements and
instruments described or referred to in the Registration Statement or the
Prospectus and each contract, agreement and instrument filed as an exhibit
to the Registration Statement is in full force and effect and is the legal,
valid and binding agreement of the Company and/or its subsidiaries,
enforceable in accordance with its terms, 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. Except as disclosed in the Prospectus, to the
knowledge of the Company, no other party to any such agreement is (with or
without notice or lapse of time or both) in breach or default in any
material respect thereunder.
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(xxiv) No relationship, direct or indirect, exists between or
among the Company or its subsidiaries, on the one hand, and the directors,
officers, trustees, stockholders, customers or suppliers of the Company or
its subsidiaries, on the other hand, which is required to be described in
the Registration Statement and the Prospectus which is not adequately
described therein.
(xxv) The activities of the Company and its subsidiaries are
permitted under applicable federal and state banking laws and regulations.
First Insurance Funding Corp. 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 its 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 its subsidiaries. Neither the Company nor
any subsidiary 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.
(xxvi) Each of the Banks and Wintrust Asset Management Company,
N.A. have 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 not have a
material adverse effect upon the condition (financial or otherwise),
earnings, affairs, business, prospects or results of operation of the
Company and its subsidiaries taken as a whole. Neither any Bank, Wintrust
Asset Management Company, N.A., nor 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.
(xxvii) The conditions for use of Form S-3, as set forth in
the General Instructions thereto have been satisfied.
(b) The Selling Stockholder represents and warrants to, and agrees
with, the several Underwriters as follows:
(i) The Selling Stockholder is the record and beneficial owner
of, and has, and on the First Closing Date and/or the Second Closing Date,
as the case may be, will have, valid and marketable title to the Securities
to be sold by the Selling Stockholder, free and clear of all security
interests, claims, liens, restrictions on transferability, legends,
proxies, equities or other encumbrances; and upon delivery of and payment
for such Securities hereunder, the several Underwriters will acquire valid
and marketable title thereto, free and clear of any security interests,
claims, liens, restrictions on transferability, legends, proxies, equities
or other encumbrances. The Selling Stockholder is selling the Securities to
be sold by the Selling Stockholder for the Selling Stockholder's own
account and is not selling such Securities, directly or indirectly, for the
benefit of the Company, and no part of the proceeds of such sale received
by the Selling Stockholder will
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inure, either directly or indirectly, to the benefit of the Company other
than as described in the Registration Statement and Prospectus.
(ii) The Selling Stockholder has duly authorized, executed and
delivered a Letter of Transmittal and Custody Agreement ("Custody
Agreement"), which Custody Agreement is a valid and binding obligation of
the Selling Stockholder, to ____________________, as Custodian (the
"Custodian"); pursuant to the Custody Agreement the Selling Stockholder has
placed in custody with the Custodian, for delivery under this Agreement,
the certificates representing the Securities to be sold by the Selling
Stockholder; such certificates represent validly issued, outstanding, fully
paid and nonassessable shares of Common Stock; and such certificates were
duly and properly endorsed in blank for transfer, or were accompanied by
all documents duly and properly executed that are necessary to validate the
transfer of title thereto, to the Underwriters, free of any legend,
restriction on transferability, proxy, lien or claim, whatsoever.
(iii) The Selling Stockholder has the power and authority to
enter into this Agreement and to sell, transfer and deliver the Securities
to be sold by the Selling Stockholder; and the Selling Stockholder has duly
authorized, executed and delivered to _________ and _________, as attorneys
-in-fact (the "Attorneys-in-Fact"), an irrevocable power of attorney (a
"Power of Attorney") authorizing and directing the Attorneys-in-Fact, or
either of them, to effect the sale and delivery of the Securities being
sold by the Selling Stockholder, to enter into this Agreement and to take
all such other action as may be necessary hereunder.
(iv) This Agreement, the Custody Agreement and the Power of
Attorney have each been duly authorized, executed and delivered by or on
behalf of the Selling Stockholder and each constitutes a valid and binding
agreement of the Selling Stockholder, enforceable in accordance with its
terms, except as rights to indemnity hereunder or thereunder may be limited
by federal or state securities laws and except as such enforceability may
be limited by bankruptcy, insolvency, reorganization or laws affecting the
rights of creditors generally and subject to general principles of equity.
The execution and delivery of this Agreement, the Custody Agreement and the
Power of Attorney and the performance of the terms hereof and thereof and
the consummation of the transactions herein and therein contemplated will
not result in a breach or violation of any of the terms and provisions of,
or constitute a default under, any agreement or instrument to which the
Selling Stockholder is a party or by which the Selling Stockholder is
bound, or any law, regulation, order or decree applicable to the Selling
Stockholder; 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, the Custody
Agreement and the Power of Attorney or for the consummation of the
transactions contemplated hereby and thereby, including the sale of the
Securities being sold by the Selling Stockholder, except such as may be
required under the Act or state securities laws or blue sky laws.
(v) The Selling Stockholder has not distributed and will not
distribute any prospectus or other offering material in connection with the
offering and sale of the Securities other than any Preliminary Prospectus
or the Prospectus or other materials permitted by the Act to be distributed
by the Selling Stockholder.
(vi) The Selling Stockholder has reviewed the Registration
Statement and the Prospectus and to the best knowledge of the Selling
Stockholder neither the Registration Statement nor the Prospectus contains
any untrue statement of a material fact or omits to state any material fact
required to be stated therein or necessary to make the statements therein
not misleading regarding the Selling Stockholder, the other Selling
Stockholder, the Company or otherwise.
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(vii) To the best knowledge of the Selling Stockholder, the
representations and warranties of the Company contained in paragraph (a) of
this Section 2 are true and correct.
(viii) The Selling Stockholder has not, since the filing of
the date of the first public announcement of the offering of the
Securities, (A) sold, bid for, purchased, attempted to induce any person to
purchase, or paid anyone any consideration for soliciting purchases of,
Common Stock (or securities convertible into or exchangeable for Common
Stock) or (B) paid or agreed to pay any person any consideration for
soliciting another to purchase any securities of the Company, except for
the sale of shares of Common Stock by the Selling Stockholder under this
Agreement.
(ix) The Selling Stockholder has not taken, directly or
indirectly, any action causing or resulting in or which has constituted or
which might cause or result in stabilization or manipulation of any
security of the Company in connection with the sale or resale of the
Securities in violation of the Rules and Regulations, including, but not
limited to Regulation M, and the Selling Stockholder is not aware of any
such action taken or to be taken by any affiliate of the Selling
Stockholder.
(c) 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 by the Company to each Underwriter as to the matters
covered thereby; any certificate signed by or on behalf of the Selling
Stockholder as such and delivered to you or to counsel for the Underwriters
shall be deemed a representation and warranty by the Selling Stockholder to each
Underwriter as to the matters covered thereby.
3. Purchase, Sale and Delivery of Securities.
(a) On the basis of the representations, warranties and agreements
herein contained, but subject to the terms and conditions herein set forth, the
Company agrees to issue and sell 850,000 Firm Shares, and the Selling
Stockholder agrees to sell 100,000 Firm Shares to the several Underwriters, and
each Underwriter agrees, severally and not jointly, to purchase from the Company
and the Selling Stockholder the number of Firm Shares set forth opposite the
name of such Underwriter in Schedule II hereto. The purchase price for each Firm
Share shall be $ per share. The obligation of each Underwriter to each of the
Company and the Selling Stockholder shall be to purchase from each of the
Company and the Selling Stockholder that number of Firm Shares (to be adjusted
by the Representative to avoid fractional shares) which represents the same
proportion of the number of Firm Shares to be sold by each of the Company and
the Selling Stockholder pursuant to this Agreement as the number of Firm Shares
set forth opposite the name of such Underwriter in Schedule II hereto represents
to the total number of Firm Shares to be purchased by all Underwriters pursuant
to this Agreement. In making this Agreement, each Underwriter is contracting
severally and not jointly; except as provided in paragraph (c) of this Section 3
and in Section 8 hereof, the agreement of each Underwriter is to purchase only
the respective number of Firm Shares specified in Schedule II.
The Firm Shares will be delivered by the Company and the Custodian
to you for the accounts of the several Underwriters against payment of the
purchase price therefor by certified or official bank check or other next day
funds payable to the order of the Company and the Custodian, as appropriate, at
the offices of U. S. Bancorp Xxxxx Xxxxxxx, U. S. Bancorp Center, 800 Nicollet
Mall, Minneapolis, Minnesota, or such other location as may be mutually
acceptable, at 9:00 a.m. Central Time on the third (or if the Securities are
priced, as contemplated by Rule 15c6-1(c) under the Exchange Act, after 4:30
p.m.
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Eastern time, the fourth) full business day following the date hereof, or at
such other time and date as you and the Company determine pursuant to Rule
15c6-1(a) under the Exchange Act, such time and date of delivery being herein
referred to as the "First Closing Date." If the Representative so elects,
delivery of the Firm Shares may be made by credit through full fast transfer to
the accounts at The Depository Trust Company designated by the Representative.
Certificates representing the Firm Shares, in definitive form and in such
denominations and registered in such names as you may request upon at least two
business days' prior notice to the Company and the Custodian, will be made
available for checking and packaging not later than 10:30 a.m., Central Time, on
the business day next preceding the First Closing Date at the offices of U. S.
Bancorp Xxxxx Xxxxxxx, U. S. Bancorp Center, 800 Nicollet Mall, Minneapolis,
Minnesota, or such other location as may be mutually acceptable.
(b) On the basis of the representations, warranties and agreements
herein contained, but subject to the terms and conditions herein set forth, the
Company hereby grants to the several Underwriters an option to purchase all or
any portion of the Option Shares at the same purchase price as the Firm Shares,
for use solely in covering any over-allotments made by the Underwriters in the
sale and distribution of the Firm Shares. The option granted hereunder may be
exercised in whole or in part at any time (but not more than once) within 30
days after the effective date of this Agreement upon notice (confirmed in
writing) by the Representative to the Company and to the Attorneys-in-Fact
setting forth the aggregate number of Option Shares as to which the several
Underwriters are exercising the option, the names and denominations in which the
certificates for the Option Shares are to be registered and the date and time,
as determined by you, when the Option Shares are to be delivered, such time and
date being herein referred to as the "Second Closing" and "Second Closing Date",
respectively; provided, however, that the Second Closing Date shall not be
earlier than the First Closing Date nor earlier than the second business day
after the date on which the option shall have been exercised. If the option is
exercised, the number of Option Shares to be purchased by each Underwriter shall
be the same percentage of the total number of Option Shares to be purchased by
the several Underwriters as the number of Firm Shares to be purchased by such
Underwriter is of the total number of Firm Shares to be purchased by the several
Underwriters, as adjusted by the Representative in such manner as the
Representative deem advisable to avoid fractional shares. No Option Shares shall
be sold and delivered unless the Firm Shares previously have been, or
simultaneously are, sold and delivered.
The Option Shares will be delivered by the Custodian and the
Company, as appropriate, to you for the accounts of the several Underwriters
against payment of the purchase price therefor by certified or official bank
check or other next day funds payable to the order of the Custodian or the
Company, as appropriate, at the offices of U. S. Bancorp Xxxxx Xxxxxxx, U. S.
Bancorp Center, 800 Nicollet Mall, Minneapolis, Minnesota, or such other
location as may be mutually acceptable at 9:00 a.m., Central Time, on the Second
Closing Date. If the Representative so elects, delivery of the Option Shares may
be made by credit through full fast transfer to the accounts at The Depository
Trust Company designated by the Representative. Certificates representing the
Option Shares in definitive form and in such denominations and registered in
such names as you have set forth in your notice of option exercise, will be made
available for checking and packaging not later than 10:30 a.m., Central time, on
the business day next preceding the Second Closing Date at the office of U. S.
Bancorp Xxxxx Xxxxxxx, U. S. Bancorp Center, 800 Nicollet Mall, Minneapolis,
Minnesota, or such other location as may be mutually acceptable.
(c) It is understood that you, individually and not as Representative of
the several Underwriters, may (but shall not be obligated to) make payment to
the Company or the Selling Stockholder, on behalf of any Underwriter for the
Securities to be purchased by such Underwriter. Any such payment by you shall
not relieve any such Underwriter of any of its obligations hereunder. Nothing
herein contained shall constitute any of the Underwriters an unincorporated
association or partner with the Company or the Selling Stockholder.
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4. Covenants.
(a) The Company covenants and agrees with the several Underwriters
as follows:
(i) If the Registration Statement has not already been declared
effective by the Commission, the Company will use its best efforts to cause
the Registration Statement and any post-effective amendments thereto to
become effective as promptly as possible; the Company will notify you
promptly of the time when the Registration Statement or any post-effective
amendment to the Registration Statement has become effective or any
supplement to the Prospectus (including any term sheet within the meaning
of Rule 434 of the Rules and Regulations) has been filed and of any request
by the Commission for any amendment or supplement to the Registration
Statement or Prospectus or additional information; if the Company has
elected to rely on Rule 430A of the Rules and Regulations, the Company will
prepare and file a Prospectus (or term sheet within the meaning of Rule 434
of the Rules and Regulations) containing the information omitted therefrom
pursuant to Rule 430A of the Rules and Regulations with the Commission
within the time period required by, and otherwise in accordance with the
provisions of, Rules 424(b), 430A and 434, if applicable, of the Rules and
Regulations; if the Company has elected to rely upon Rule 462(b) of the
Rules and Regulations to increase the size of the offering registered under
the Act, the Company will prepare and file a registration statement with
respect to such increase with the Commission within the time period
required by, and otherwise in accordance with the provisions of, Rule
462(b); the Company will prepare and file with the Commission, promptly
upon your request, any amendments or supplements to the Registration
Statement or Prospectus (including any term sheet within the meaning of
Rule 434 of the Rules and Regulations) that, in your opinion, may be
necessary or advisable in connection with the distribution of the
Securities by the Underwriters; and the Company will not file any amendment
or supplement to the Registration Statement or Prospectus (including any
term sheet within the meaning of Rule 434 of the Rules and Regulations) to
which you shall reasonably object by notice to the Company after having
been furnished a copy a reasonable time prior to the filing.
(ii) The Company will advise you, promptly after it shall
receive notice or obtain knowledge thereof, of the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement, of the suspension of the qualification of the
Securities for offering or sale in any jurisdiction, or of the initiation
or threatening of any proceeding for any such purpose; and the Company will
promptly use its best efforts to prevent the issuance of any stop order or
to obtain its withdrawal if such a stop order should be issued.
(iii) Within the time during which a prospectus (including any
term sheet within the meaning of Rule 434 of the Rules and Regulations)
relating to the Securities is required to be delivered under the Act, the
Company will comply as far as it is able with all requirements imposed upon
it by the Act and the 1934 Act, as now and hereafter amended, and by the
Rules and Regulations, as from time to time in force, so far as necessary
to permit the continuance of sales of or dealings in the Securities as
contemplated by the provisions hereof and the Prospectus. If during such
period any event occurs as a result of which the Prospectus would include
an untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in the light of the circumstances
then existing, not misleading, or if during such period it is necessary to
amend the Registration Statement or supplement the Prospectus to comply
with the Act, the Company will promptly notify you and will amend the
Registration Statement or supplement the Prospectus (at the expense of the
Company) so as to correct such statement or omission or effect such
compliance.
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(iv) The Company will use its best efforts to qualify the
Securities for sale under the securities laws of such jurisdictions as you
reasonably designate and to continue such qualifications in effect so long
as required for the distribution of the Securities, except that the Company
shall not be required in connection therewith to qualify as a foreign
corporation or to execute a general consent to service of process in any
state.
(v) The Company will furnish to the Underwriters and counsel
for the Underwriters copies of the Registration Statement (three of which
will be signed and will include all consents, exhibits and documents
incorporated therein or filed therewith), each Preliminary Prospectus, the
Prospectus, and all amendments and supplements (including any term sheet
within the meaning of Rule 434 of the Rules and Regulations) to such
documents, in each case as soon as available and in such quantities as you
may from time to time reasonably request.
(vi) During a period of five years commencing with the date
hereof, the Company will furnish to the Representative, and to each
Underwriter who may so request in writing, copies of all periodic and
special reports furnished to the stockholders of the Company and all
information, documents and reports filed with the Commission, the National
Association of Securities Dealers, Inc. ("NASD") or other self-regulatory
organization, the Nasdaq National Market or any securities exchange.
(vii) The Company will make generally available to its
security holders as soon as practicable, but in any event not later than 15
months after the end of the Company's current fiscal quarter, an earnings
statement (which need not be audited) covering a 12-month period beginning
after the effective date of the Registration Statement that shall satisfy
the provisions of Section 11(a) of the Act and Rule 158 of the Rules and
Regulations.
(viii) The Company, whether or not the transactions
contemplated hereunder are consummated or this Agreement is prevented from
becoming effective under the provisions of Section 9(a) hereof or is
terminated, will pay or cause to be paid (A) all expenses (including
transfer taxes allocated to the respective transferees) incurred in
connection with the delivery to the Underwriters of the Securities, (B) all
expenses and fees (including, without limitation, fees and expenses of the
Company's accountants and counsel but, except as otherwise provided below,
not including fees of the Underwriters' counsel) in connection with the
preparation, printing, filing, delivery, and shipping of the Registration
Statement (including the financial statements therein and all amendments,
schedules, and exhibits thereto), the Securities, each Preliminary
Prospectus, the Prospectus, and any amendment thereof or supplement
thereto, and the printing, delivery, and shipping of this Agreement and
other underwriting documents, including Blue Sky Memoranda, (C) all filing
fees and fees and disbursements of the Underwriters' counsel incurred in
connection with the qualification of the Securities for offering and sale
by the Underwriters or by dealers under the securities or blue sky laws of
the states and other jurisdictions which you shall designate, (D) the fees
and expenses of any transfer agent or registrar, (E) the filing fees
incident to any required review by the NASD of the terms of the sale of the
Securities, (F) listing fees, if any, and (G) all other costs and expenses
incident to the performance of its obligations hereunder that are not
otherwise specifically provided for herein. If the sale of the Securities
provided for herein is not consummated by reason of action by the Company
pursuant to Section 9(a) hereof which prevents this Agreement from becoming
effective, or by reason of any failure, refusal or inability on the part of
the Company or the Selling Stockholder to perform any agreement on its or
their part to be performed, or because any other condition of the
Underwriters' obligations hereunder required to be fulfilled by the Company
or the Selling Stockholder is not fulfilled, the Company will reimburse the
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several Underwriters for all out-of-pocket disbursements (including fees
and disbursements of counsel) incurred by the Underwriters in connection
with their investigation, preparing to market and marketing the Securities
or in contemplation of performing their obligations hereunder. The Company
shall not in any event be liable to any of the Underwriters for loss of
anticipated profits from the transactions covered by this Agreement.
(ix) The Company will apply the net proceeds from the sale of
the Securities to be sold by it hereunder for the purposes set forth in the
Prospectus and will file such reports with the Commission with respect to
the sale of the Securities and the application of the proceeds therefrom as
may be required in accordance with Rule 463 of the Rules and Regulations.
(x) The Company will not, without your prior written consent,
from the date of execution of this Agreement and continuing to and
including the date 90 days after the date of the Prospectus (the "Lock-Up
Period") offer for sale; sell; contract to sell; pledge; grant any option
for the sale of; enter into any transaction which is designed to, or might
reasonably be expected to, result in the disposition (whether by actual
disposition or effective economic disposition due to cash settlement or
otherwise) by the Company or any affiliate; or otherwise issue or dispose
of, directly or indirectly (or publicly disclose the intention to make any
such offer, sale, pledge, grant, issuance or other disposition), any Common
Stock or any securities convertible into or exchangeable for, or any
options or rights to purchase or acquire, Common Stock, except to the
Underwriters pursuant to this Agreement. The Company agrees not to
accelerate the vesting of any option or warrant or the lapse of any
repurchase right prior to the expiration of the Lock-Up Period.
(xi) The Company either has caused to be delivered to you or
will cause to be delivered to you prior to the effective date of the
Registration Statement a letter from each of the Company's directors and
officers and any stockholder which you identify to us in writing stating
that such person agrees that he or she will not, without your prior written
consent, directly or indirectly, offer for sale, sell, contract to sell or
otherwise dispose of any shares of Common Stock or rights to purchase
Common Stock, except to the Underwriters pursuant to this Agreement, for a
period of 90 days after commencement of the public offering of the
Securities by the Underwriters (the "Lock-Up Agreement"). The Company will
enforce the terms of each Lock-Up Agreement and issue stop-transfer
instructions to the transfer agent for the Common Stock with respect to any
transaction or contemplated transaction that would constitute a breach of
or default under the applicable Lock-Up Agreement.
(xii) The Company has not taken and will not take, directly or
indirectly, any action designed to or which might reasonably be expected to
cause or result in, or which has constituted, the stabilization or
manipulation of the price of any security of the Company to facilitate the
sale or resale of the Securities, and has not effected any sales of Common
Stock which are required to be disclosed in response to Item 701 of
Regulation S-K under the Act which have not been so disclosed in the
Registration Statement.
(xiii) The Company will not incur 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.
(xiv) The Company will inform the Florida Department of
Banking and Finance at any time prior to the consummation of the
distribution of the Securities by the Underwriters if it commences engaging
in business with the government of Cuba or with any person or affiliate
-14-
located in Cuba. Such information will be provided within 90 days after the
commencement thereof or after a change occurs with respect to previously
reported information.
(xv) The Company will file with the Commission such periodic
and special reports as required by the Rules and Regulations.
(xvi) The Company shall use its best efforts to obtain
approval for additional shares of Common Stock (such that all of the
Securities shall be included in or approved for inclusion in the Nasdaq
National Market or in lieu thereof the New York Stock Exchange or another
national securities exchange), and to remain so listed for at least five
years from the effective date of the Registration Statement or for such
shorter period as may be specified in a written consent of the
Representative.
(xvii) 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.
(xviii) Prior to the First Closing Date (and, if applicable,
the Second 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, its subsidiaries or the offering of the
Securities without your prior written consent.
(xix) The Company and its 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 1934 Act, the
Rules and Regulations, 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, and the Board of Governors of the Federal Reserve
System, as applicable).
(b) The Selling Stockholder covenants and agrees with the
several Underwriters as follows:
(i) Except as otherwise agreed to by the Company and the
Selling Stockholder, the Selling Stockholder will pay all taxes, if any, on
the transfer and sale, respectively, of the Securities being sold by the
Selling Stockholder, the fees of the Selling Stockholder's counsel and the
Selling Stockholder's proportionate share (based upon the number of
Securities being offered by the Selling Stockholder pursuant to the
Registration Statement) of all costs and expenses (except for legal and
accounting expenses and fees of the registrar and transfer agent) incurred
by the Company pursuant to the provisions of Section 4(a)(viii) of this
Agreement; provided, however, that the Selling Stockholder severally agrees
to reimburse the Company for any reimbursement made by the Company to the
Underwriters pursuant to Section 4(a)(viii) hereof to the extent such
reimbursement resulted from the failure or refusal on the part of the
Selling Stockholder to comply under the terms or fulfill any of the
conditions of this Agreement.
-15-
(ii) If this Agreement shall be terminated by the Underwriters
because of any failure, refusal or inability on the part of the Selling
Stockholder to perform any agreement on the Selling Stockholder's part to
be performed, or because any other condition of the Underwriters'
obligations hereunder required to be fulfilled by the Selling Stockholder
is not fulfilled, the Selling Stockholder agrees to reimburse the several
Underwriters for all out-of-pocket disbursements (including fees and
disbursements of counsel for the Underwriters) incurred by the Underwriters
in connection with their investigation, preparing to market and marketing
the Securities or in contemplation of performing their obligations
hereunder. The Selling Stockholder shall not in any event be liable to any
of the Underwriters for loss of anticipated profits from the transactions
covered by this Agreement.
(iii) The Securities to be sold by the Selling Stockholder,
represented by the certificates on deposit with the Custodian pursuant to
the Custody Agreement of the Selling Stockholder, are subject to the
interest of the several Underwriters; the arrangements made for such
custody are, except as specifically provided in the Custody Agreement,
irrevocable; and the obligations of the Selling Stockholder hereunder shall
not be terminated, except as provided in this Agreement or in the Custody
Agreement, by any act of the Selling Stockholder, by operation of law,
whether by the liquidation, dissolution or merger of the Selling
Stockholder, by the death of the Selling Stockholder, or by the occurrence
of any other event. If the Selling Stockholder should liquidate, dissolve
or be a party to a merger or if any other such event should occur before
the delivery of the Securities hereunder, certificates for the Securities
deposited with the Custodian shall be delivered by the Custodian in
accordance with the terms and conditions of this Agreement as if such
liquidation, dissolution, merger or other event had not occurred, whether
or not the Custodian shall have received notice thereof.
(iv) The Selling Stockholder will not, without your prior
written consent, directly or indirectly, offer for sale, sell, contract to
sell, grant any option for the sale of or otherwise dispose of any Common
Stock or any securities convertible into or exchangeable for, or any
options or rights to purchase or acquire, Common Stock, except to the
Underwriters pursuant to this Agreement, for a period of 90 days after the
commencement of the public offering of the Securities by the Underwriters.
(v) No Selling Stockholder has taken and will not take,
directly or indirectly, any action designed to or which might reasonably be
expected to cause or result in stabilization or manipulation of the price
of any security of the Company to facilitate the sale or resale of the
Securities, and has not effected any sales of Common Stock which, if
effected by the Company, would be required to be disclosed in response to
Item 701 of Regulation S-K.
(vi) The Selling Stockholder shall immediately notify you if
any event occurs, or of any change in information relating to the Selling
Stockholder or the Company or any new information relating to the Company
or relating to any matter stated in the Prospectus or any supplement
thereto (including any term sheet within the meaning of Rule 434 of the
Rules and Regulations), which results in the Prospectus (as supplemented)
including an untrue statement of a material fact or omitting to state any
material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
(vii) The Selling Stockholder shall (A) cooperate to the
extent necessary to cause the Registration Statement or any post-effective
amendment thereto to become effective at the earliest possible time; and
(B) do or perform all things required to be done or performed by the
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Selling Stockholder, prior to any Closing Date, to satisfy all conditions
precedent to the delivery of the Securities pursuant to this Agreement.
(viii) Prior to the First Closing Date (and, if applicable,
the Second Closing Date), the Selling Stockholder will not issue any press
release or other communication directly or indirectly or hold any press
conference with respect to the Company, its subsidiaries or the offering of
the Securities without your prior written consent.
5. Conditions of Underwriters' Obligations. The obligations of the several
Underwriters hereunder are subject to the accuracy, as of the date hereof and at
each of the First Closing Date and the Second Closing Date (as if made at such
Closing Date), of and compliance with all representations, warranties and
agreements of the Company and the Selling Stockholder contained herein, to the
performance by the Company and the Selling Stockholder of their respective
obligations hereunder and to the following additional conditions:
(a) The Registration Statement shall have become effective not
later than 5:00 p.m., Central Time, on the date of this Agreement, or such later
time and date as you, as Representative of the several Underwriters, shall
approve and all filings required by Rules 424, 430A and 434 of the Rules and
Regulations shall have been timely made; no stop order suspending the
effectiveness of the Registration Statement or any amendment thereof shall have
been issued; no proceedings for the issuance of such an order shall have been
initiated or threatened; and any request of the Commission for additional
information (to be included in the Registration Statement or the Prospectus or
otherwise) shall have been complied with to your satisfaction.
(b) No Underwriter shall have advised the Company that the
Registration Statement or the Prospectus, or any amendment thereof or supplement
thereto (including any term sheet within the meaning of Rule 434 of the Rules
and Regulations), contains an untrue statement of fact which, in your opinion,
is material, or omits to state a fact which, in your opinion, is material and is
required to be stated therein or necessary to make the statements therein not
misleading.
(c) Except as contemplated in the Prospectus, subsequent to the
respective dates as of which information is given in the Registration Statement
and the Prospectus, neither the Company nor any of its subsidiaries shall have
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
shall not have 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 of the Company, or any issuance of options,
warrants, convertible securities or other rights to purchase the capital stock
of the Company or any of its subsidiaries, or any material adverse change or any
development involving a prospective material adverse change (whether or not
arising in the ordinary course of business), in the general affairs, condition
(financial or otherwise), business, key personnel, property, prospects, net
worth or results of operations of the Company and its subsidiaries, taken as a
whole, that, in your judgment, makes it impractical or inadvisable to offer or
deliver the Securities on the terms and in the manner contemplated in the
Prospectus.
(d) All corporate proceedings and other legal matters incident to
the authorization by the Company, form and validity of this Agreement, and the
authorization by the Company and form of the Registration Statement and
Prospectus, other than financial statements and other financial data, and all
other legal matters relating to this Agreement and the transactions contemplated
hereby shall be satisfactory in all material respects to counsel for the
Underwriters, and the Company and its subsidiaries shall have furnished
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to such counsel all documents and information relating thereto that they may
reasonably request to enable them to pass upon such matters.
(e) On each Closing Date, there shall have been furnished to you,
as Representative of the several Underwriters, the opinion of Vedder, Price,
Xxxxxxx & Kammholz, counsel for the Company, dated such Closing Date and
addressed to you, 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 bank holding company under the BHC Act. Each of the
Company's 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 its subsidiaries has full corporate 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 upon the business, condition (financial or
otherwise) or properties of the Company and its subsidiaries, taken as a
whole.
(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
the 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
Securities 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 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 the Company's subsidiaries have been duly and
validly authorized and issued and 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. 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 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. To the best of such
counsel's knowledge, except as described in the Registration Statement and
Prospectus or waived in writing, there are no options, 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 the
Company or any subsidiary of the Company.
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(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
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 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
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 of its
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 Securities 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 Securities by the Underwriters.
(vii) To the best of such counsel's knowledge, the Company and
each of its subsidiaries holds, and is 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 its business and all
such franchises, grants, authorizations, licenses, permits, easements,
consents, certifications and orders are valid and in full force and effect.
(viii) To the best of such counsel's knowledge, neither the
Company nor any of its 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 its 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 any of them may be bound, or to which any of the material
property or assets of the Company or any of its subsidiaries is subject.
(ix) The Registration Statement and the Prospectus, and any
amendment thereof or supplement thereto (including any term sheet within
the meaning of Rule 434 of the Rules and Regulations), comply as to form in
all material respects with the requirements of the Act and the Rules and
Regulations; and on the basis of conferences with officers of the Company,
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examination of documents referred to in the Registration Statement and
Prospectus and such other procedures as such counsel deemed appropriate,
nothing has come to the attention of such counsel that causes such counsel
to believe that the Registration Statement or any amendment thereof, at the
time the Registration Statement became effective and as of such Closing
Date (including any Registration Statement filed under Rule 462(b) of the
Rules and Regulations), contained any untrue statement of a material fact
or omitted to state any material fact required to be stated therein or
necessary to make the statements therein not misleading or that the
Prospectus (as of its date and as of such Closing Date), as amended or
supplemented, includes any untrue statement of material fact or omits to
state a material fact necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading; it being
understood that such counsel need express no opinion as to the financial
statements or other financial data included in any of the documents
mentioned in this clause.
(x) Such other matters as you may reasonably request.
In rendering such opinion such counsel may rely (i) as to matters
of law other than Illinois and federal law, upon the opinion or opinions of
local counsel provided that the extent of such reliance is specified in such
opinion and that such counsel shall state that such opinion or opinions of local
counsel are satisfactory to them and that they believe they and you are
justified in relying thereon and (ii) as to matters of fact, to the extent such
counsel deems reasonable upon certificates of officers of the Company and its
subsidiaries provided that the extent of such reliance is specified in such
opinion.
(f) On each Closing Date, there shall have been furnished to you,
as Representative of the several Underwriters, the opinion of _________________,
counsel for the Selling Stockholder, dated such Closing Date and addressed to
you, to the effect that:
(i) The Selling Stockholder is the sole record and beneficial
owner of the Securities to be sold by the Selling Stockholder and delivery
of the certificates for the Securities to be sold by the Selling
Stockholder pursuant to this Agreement, upon payment therefor by the
Underwriters, will pass marketable title to such Securities to the
Underwriters and the Underwriters will acquire all the rights of the
Selling Stockholder in the Securities (assuming the Underwriters have no
knowledge of an adverse claim), free and clear of any security interests,
claims, liens or other encumbrances.
(ii) The Selling Stockholder has the power and authority to
enter into the Custody Agreement, the Power of Attorney and this Agreement
and to perform and discharge the Selling Stockholder's obligations
thereunder and hereunder; and this Agreement, the Custody Agreements and
the Powers of Attorney have been duly and validly authorized, executed and
delivered by (or by the Attorneys-in-Fact, or either of them, on behalf of)
the Selling Stockholder and are valid and binding agreements of the Selling
Stockholder, enforceable in accordance with their respective terms (except
as rights to indemnity hereunder or thereunder 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 creditors'
rights generally and subject to general principles of equity).
(iii) The execution and delivery of this Agreement, the
Custody Agreement and the Power of Attorney and the performance of the
terms hereof and thereof and the consummation of the transactions herein
and therein 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, or any agreement or instrument known to such counsel to
which the Selling Stockholder is a party or by
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which the Selling Stockholder is bound or to which any of its property is
subject or any order or decree known to such counsel of any court or
government agency or body having jurisdiction over the Selling Stockholder
or any of its 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, the Custody Agreement and the Power of Attorney or for the
consummation of the transactions contemplated hereby and thereby, including
the sale of the Securities being sold by the Selling Stockholder, 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 Securities by the Underwriters.
(iv) Such other matters as you may reasonably request.
In rendering such opinion such counsel may rely (i) as to matters
of law other than Illinois and federal law, upon the opinion or opinions of
local counsel provided that the extent of such reliance is specified in such
opinion and that such counsel shall state that such opinion or opinions of local
counsel are satisfactory to them and that they believe they and you are
justified in relying thereon and (ii) as to matters of fact, to the extent such
counsel deems reasonable upon certificates of the Selling Stockholder provided
that the extent of such reliance is specified in such opinion.
(g) On each Closing Date, there shall have been furnished to you,
as Representative of the several Underwriters, such opinion or opinions from
Xxxxx Xxxx LLP, counsel for the several Underwriters, dated such Closing Date
and addressed to you, with respect to the sufficiency of all corporate
procedures and other legal matters relating to this Agreement, the formation of
the Company, the validity of the Securities, the Registration Statement, the
Prospectus and other related matters as you reasonably may request, and such
counsel shall have received such papers and information as they request to
enable them to pass upon such matters. In giving such opinion, Xxxxx Xxxx LLP
may rely as to matters of fact upon statements and certifications of officers of
the Company and of other appropriate persons and may rely as to matters of law,
other than law of the United States and the State of Missouri, and upon the
opinions of Vedder, Price, Xxxxxxx & Kammholz and ___________ described herein.
(h) On each Closing Date you, as Representative of the several
Underwriters, shall have received a letter of Ernst & Young LLP, dated such
Closing Date and addressed to you, confirming that they are independent public
accountants within the meaning of the Act and are in compliance with the
applicable requirements relating to the qualifications of accountants under Rule
2-01 of Regulation S-X of the Commission, and stating, as of the date of such
letter (or, with respect to matters involving changes or developments since the
respective dates as of which specified financial information is given in the
Prospectus, as of a date not more than five days prior to the date of such
letter), the conclusions and findings of said firm with respect to the financial
information and other matters covered by its letter delivered to you
concurrently with the execution of this Agreement, and the effect of the letter
so to be delivered on such Closing Date shall be to confirm the conclusions and
findings set forth in such prior letter. The letter to be delivered concurrently
with the execution of this Agreement shall state in effect that:
(i) In their opinion, the consolidated financial statements
of the Company audited by them and included or incorporated by reference in
the Registration Statement comply as to form in all material respects with
the applicable accounting requirements of the Act and the Rules and
Regulations.
(ii) On the basis of the procedures specified by the American
Institute of Certificate Public Accountants as described in SAS No. 71,
"Interim Financial Information", inquiries of officials of the Company
responsible for financial and accounting matters, and such
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other inquiries and procedures as may be specified in such letter, which
procedures do not constitute an audit in accordance with U.S. generally
accepted auditing standards, nothing came to their attention that caused
them to believe that, if applicable, the unaudited interim consolidated
financial statements of the Company included in the Registration Statement
do not comply as to form in all material respects with the applicable
accounting requirements of the Act and the Rules and Regulations or are not
in conformity with U.S. generally accepted accounting principles applied on
a basis substantially consistent, except as noted in the Registration
Statement, with the basis for the audited consolidated financial statements
of the Company included in the Registration Statement.
(iii) On the basis of limited procedures, not constituting an
audit in accordance with U.S. generally accepted auditing standards,
consisting of a reading of the unaudited interim financial statements and
other information referred to below, a reading of the latest available
unaudited condensed consolidated financial statements of the Company,
inspection of the minute books of the Company since the date of the latest
audited financial statements of the Company included or incorporated by
reference in the Registration Statement, inquiries of officials of the
Company responsible for financial and accounting matters and such other
inquiries and procedures as may be specified in such letter, nothing came
to their attention that caused them to believe that:
(A) as of a specified date not more than five days prior
to the date of such letter, there have been any changes in the
consolidated capital stock of the Company, any increase in the
consolidated debt of the Company, any decreases in consolidated total
assets or shareholders' equity of the Company, or any changes,
decreases or increases in other items specified by the Representative,
in each case as compared with amounts shown in the latest unaudited
interim consolidated statement of financial condition of the Company
included or incorporated by reference in the Registration Statement
except in each case for changes, increases or decreases which the
Registration Statement specifically discloses, have occurred or may
occur or which are described in such letter; and
(B) for the period from the date of the latest unaudited
interim consolidated financial statements of the Company included or
incorporated by reference in the Registration Statement to the
specified date referred to in Clause (iii)(A), there were any
decreases in the consolidated interest income, net interest income or
net income of the Company or any changes, decreases or increases in
any other items specified by the Representative, in each case as
compared with the comparable period of the preceding year and with any
other period of corresponding length specified by the Representative,
except in each case for increases or decreases which the Registration
Statement discloses have occurred or may occur, or which are described
in such letter.
(iv) In addition to the audit referred to in their report
included in the Registration Statement and the limited procedures,
inspection of minute books, inquiries and other procedures referred to in
paragraphs (ii) and (iii) above, they have carried out certain specified
procedures, not constituting an audit in accordance with U.S. generally
accepted auditing standards, with respect to certain amounts, percentages
and financial information specified by the Representative which are derived
from the general accounting records and consolidated financial statements
of the Company which appear or are incorporated by reference in the
Registration Statement, and have compared such amounts, percentages and
financial information with the accounting records and the material derived
from such records and consolidated financial statements of the Company and
have found them to be in agreement.
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(i) On each Closing Date, there shall have been furnished to you,
as Representative of the Underwriters, a certificate, dated such Closing Date
and addressed to you, signed by the chief executive officer and by the chief
financial officer of the Company, to the effect that:
(i) The representations and warranties of the Company in this
Agreement are true and correct, in all material respects, as if made at and
as of such Closing Date, 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;
(ii) No stop order or other order suspending the effectiveness
of the Registration Statement or any amendment thereof or the qualification
of the Securities for offering or sale has been issued, and no proceeding
for that purpose has been instituted or, to the best of their knowledge, is
contemplated by the Commission or any state or regulatory body; and
(iii) The signers of said certificate have carefully examined
the Registration Statement and the Prospectus, and any amendments thereof
or supplements thereto (including any term sheet within the meaning of Rule
434 of the Rules and Regulations), and (A) such documents contain all
statements and information required to be included therein, the
Registration Statement, or any amendment thereof, does not contain any
untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein
not misleading, and the Prospectus, as amended or supplemented, does not
include any untrue statement of material fact or omit to state a material
fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, (B) since the
effective date of the Registration Statement, there has occurred no event
required to be set forth in an amended or supplemented prospectus which has
not been so set forth, (C) subsequent to the respective dates as of which
information is given in the Registration Statement and the Prospectus,
neither the Company nor any of its subsidiaries has incurred any material
liabilities or obligations, direct or contingent, or entered into any
material transactions, not in the ordinary course of business, or declared
or paid any dividends or made any distribution of any kind with respect to
its capital stock, and except as disclosed in the Prospectus, 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 its subsidiaries, or any material adverse change or
any development involving a prospective material adverse change (whether or
not arising in the ordinary course of business), in the general affairs,
condition (financial or otherwise), business, key personnel, property,
prospects, net worth or results of operations of the Company and its
subsidiaries, taken as a whole, and (D) except as stated in the
Registration Statement and the Prospectus, there is not pending, or, to the
knowledge of the Company, threatened or contemplated, any action, suit or
proceeding to which the Company or any of its subsidiaries is a party
before or by any court or governmental agency, authority or body, or any
arbitrator, which might result in any material adverse change in the
condition (financial or otherwise), business, prospects or results of
operations of the Company and its subsidiaries, taken as a whole.
(j) On each Closing Date, there shall have been furnished to you,
as Representative of the several Underwriters, a certificate or certificates,
dated such Closing Date and addressed to you, signed by each of the Selling
Stockholder or the Selling Stockholder's Attorney-in-Fact to the effect that the
representations and warranties of the Selling Stockholder contained in this
Agreement are true and correct as if made at and as of such Closing Date, and
that the Selling Stockholder has complied with all the
-23-
agreements and satisfied all the conditions on the Selling Stockholder's part to
be performed or satisfied at or prior to such Closing Date.
(k) The Company shall have furnished to you and counsel for the
Underwriters such additional documents, certificates and evidence as you or they
may have reasonably requested.
(l) The NASD, upon review of the terms of the public offering of
the Securities, shall not have objected to any Underwriter's participation in
such offering.
All such opinions, certificates, letters and other documents will
be in compliance with the provisions hereof only if they are satisfactory in
form and substance to you and counsel for the Underwriters. The Company will
furnish you with such conformed copies of such opinions, certificates, letters
and other documents as you shall reasonably request.
6. Indemnification and Contribution.
(a) The Company and the Selling Stockholder, jointly and severally,
agree to indemnify and hold harmless each Underwriter, each of its directors,
officers and agents, and each person, if any, who controls any Underwriter
within the meaning of the Act, against any losses, claims, damages or
liabilities, joint or several, to which such Underwriter may become subject,
under the Act or otherwise (including in settlement of any litigation if such
settlement is effected with the written consent of the Company and/or the
Selling Stockholder, as the case may be), insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon an untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement, including the information deemed to be
a part of the Registration Statement at the time of effectiveness pursuant to
Rules 430A and 434(d) of the Rules and Regulations, if applicable, any
Preliminary Prospectus, the Prospectus, or any amendment or supplement thereto
(including any term sheet within the meaning of Rule 434 of the Rules and
Regulations), or in any materials or information provided to investors by, or
with the approval of, the Company in connection with the marketing of the
offering of the Common Stock ("Marketing Materials"), including any roadshow or
investor presentations made to investors by the Company (whether in person or
electronically) or arise out of or are based upon 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, and will reimburse each
Underwriter for any legal or other expenses reasonably incurred by it in
connection with investigating or defending against such loss, claim, damage,
liability or action; provided, however, that neither the Company nor the Selling
Stockholder shall be liable in any such case to the extent that any such loss,
claim, damage, liability or action 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 any
such amendment or supplement, or in any Marketing Materials, in reliance upon
and in conformity with written information furnished to the Company by you, or
by any Underwriter through you, specifically for use in the preparation thereof;
and further provided, however, that in no event shall the Selling Stockholder be
liable under the provisions of this Section 6 for any amount in excess of the
aggregate amount of proceeds the Selling Stockholder received from the sale of
the Securities pursuant to this Agreement.
In addition to their other obligations under this Section 6(a), the
Company and the Selling Stockholder, jointly and severally, agree that, as an
interim measure during the pendency of any claim, action, investigation, inquiry
or other proceeding arising out of or based upon any statement or omission, or
any alleged statement or omission, described in this Section 6(a), they will
reimburse each Underwriter on a monthly basis for all reasonable legal fees or
other expenses incurred in connection with investigating or defending any such
claim, action, investigation, inquiry or other proceeding, notwithstanding the
absence of a judicial determination as to the propriety and enforceability of
the Company's and/or the Selling
-24-
Stockholder's obligation to reimburse the Underwriters for such expenses and the
possibility that such payments might later be held to have been improper by a
court of competent jurisdiction. To the extent that any such interim
reimbursement payment is so held to have been improper, the Underwriter that
received such payment shall promptly return it to the party or parties that made
such payment, together with interest, compounded daily, determined on the basis
of the prime rate (or other commercial lending rate for borrowers of the highest
credit standing) announced from time to time by ____________________ (the "Prime
Rate"). Any such interim reimbursement payments which are not made to an
Underwriter within 30 days of a request for reimbursement shall bear interest at
the Prime Rate from the date of such request. This indemnity agreement shall be
in addition to any liabilities which the Company or the Selling Stockholder may
otherwise have.
(b) Each Underwriter will indemnify and hold harmless the Company
and the Selling Stockholder against any losses, claims, damages or liabilities
to which the Company and the Selling Stockholder may become subject, under the
Act or otherwise (including in settlement of any litigation, if such settlement
is effected with the written consent of such Underwriter), insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon an untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement, any Preliminary
Prospectus, the Prospectus, or any amendment or supplement thereto (including
any term sheet within the meaning of Rule 434 of the Rules and Regulations), or
arise out of or are based upon 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, in each case to the extent, but only to the
extent, that such untrue statement or alleged untrue statement or omission or
alleged omission was made in the Registration Statement, any Preliminary
Prospectus, the Prospectus, or any such amendment or supplement, in reliance
upon and in conformity with written information furnished to the Company by you,
or by such Underwriter through you, specifically for use in the preparation
thereof, and will reimburse the Company and the Selling Stockholder for any
legal or other expenses reasonably incurred by the Company or any the Selling
Stockholder in connection with investigating or defending against any such loss,
claim, damage, liability or action.
(c) Promptly after receipt by an indemnified party under
subsection (a) or (b) above of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve the indemnifying party from any liability
that it may have to any indemnified party except to the extent such indemnifying
party has been materially prejudiced by such failure. In case any such action
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 in, 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 after notice from the
indemnifying party to such indemnified party of the indemnifying party's
election so to assume the defense thereof, the indemnifying party shall not be
liable to such indemnified party under such subsection for any legal or other
expenses subsequently incurred by such indemnified party in connection with the
defense thereof other than reasonable costs of investigation; provided, however,
that if, in the sole judgment of the Representative, it is advisable for the
Underwriters to be represented as a group by separate counsel, the
Representative shall have the right to employ a single counsel to represent the
Representative and all Underwriters who may be subject to liability arising from
any claim in respect of which indemnity may be sought by the Underwriters under
subsection (a) of this Section 6, in which event the reasonable fees and
expenses of such separate counsel shall be borne by the indemnifying party or
parties and reimbursed to the Underwriters as incurred (in accordance with the
provisions of the second paragraph in subsection (a) above). An indemnifying
party shall not be obligated
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under any settlement agreement relating to any action under this Section 6 to
which it has not agreed in writing.
(d) If the indemnification provided for in this Section 6 is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above, then each indemnifying party shall contribute to
the amount paid or payable by such indemnified party as a result of the losses,
claims, damages or liabilities referred to in subsection (a) or (b) above, (i)
in such proportion as is appropriate to reflect the relative benefits received
by the Company and the Selling Stockholder on the one hand and the Underwriters
on the other from the offering of the Securities or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the Company and the
Selling Stockholder on the one hand and the Underwriters on the other in
connection with the statements or omissions that resulted in such losses,
claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Company and the Selling
Stockholder 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 and Selling Stockholder 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 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, the Selling Stockholder or the Underwriters and the parties' relevant
intent, knowledge, access to information and opportunity to correct or prevent
such untrue statement or omission. The Company, the Selling Stockholder and the
Underwriters agree that it would not be just and equitable if contributions
pursuant to this subsection (d) were to be determined by pro rata allocation
(even if the Underwriters were treated as one entity for such purpose) or by any
other method of allocation which does not take account of the equitable
considerations referred to in the first sentence of this subsection (d). The
amount paid by an indemnified party as a result of the losses, claims, damages
or liabilities referred to in the first sentence of this subsection (d) shall be
deemed to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending against any
action or claim which is the subject of this subsection (d). Notwithstanding the
provisions of this subsection (d), no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at which
the Securities underwritten by it and distributed to the public were offered to
the public exceeds the amount of any damages that such Underwriter has otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations in this subsection (d) to
contribute are several in proportion to their respective underwriting
obligations and not joint.
(e) The obligations of the Company and the Selling Stockholder
under this Section 6 shall be in addition to any liability which the Company and
the Selling Stockholder may otherwise have and shall extend, upon the same terms
and conditions, to each person, if any, who controls any Underwriter within the
meaning of the Act; and the obligations of the Underwriters under this Section 6
shall be in addition to any liability that the respective Underwriters may
otherwise have and shall extend, upon the same terms and conditions, to each
director of the Company (including any person who, with his consent, is named in
the Registration Statement as about to become a director of the Company), to
each officer of the Company who has signed the Registration Statement and to
each person, if any, who controls the Company or the Selling Stockholder within
the meaning of the Act.
(f) The Underwriters severally confirm and the Company and the
Selling Shareholder acknowledges that the statements with respect to the public
offering of the Securities by the
-26-
Underwriters set forth on the cover page of, the legend concerning
over-allotments on the inside front cover page of and the concession and
reallowance figures appearing under the caption "Underwriting" in the Prospectus
are correct and constitute the only information concerning such Underwriters
furnished in writing to the Company by or on behalf of the Underwriters
specifically for inclusion in the Registration Statement and the Prospectus.
7. Representations and Agreements to Survive Delivery. All representations,
warranties, and agreements of the Company and the Selling Shareholder herein or
in certificates delivered pursuant hereto, and the agreements of the several
Underwriters, the Company and the Selling Stockholder contained in Section 6
hereof, shall remain operative and in full force and effect regardless of any
investigation made by or on behalf of any Underwriter or any controlling person
thereof, or the Company or any of its officers, directors, or controlling
persons, or the Selling Stockholder or any controlling person thereof, and shall
survive delivery of, and payment for, the Securities to and by the Underwriters
hereunder.
8. Substitution of Underwriters.
(a) If any Underwriter or Underwriters shall fail to take up and
pay for the amount of Firm Shares agreed by such Underwriter or Underwriters to
be purchased hereunder, upon tender of such Firm Shares in accordance with the
terms hereof, and the amount of Firm Shares not purchased does not aggregate
more than 10% of the total amount of Firm Shares set forth in Schedule II
hereto, the remaining Underwriters shall be obligated to take up and pay for (in
proportion to their respective underwriting obligations hereunder as set forth
in Schedule II hereto except as may otherwise be determined by you) the Firm
Shares that the withdrawing or defaulting Underwriters agreed but failed to
purchase.
(b) If any Underwriter or Underwriters shall fail to take up and
pay for the amount of Firm Shares agreed by such Underwriter or Underwriters to
be purchased hereunder, upon tender of such Firm Shares in accordance with the
terms hereof, and the amount of Firm Shares not purchased aggregates more than
10% of the total amount of Firm Shares set forth in Schedule II hereto, and
arrangements satisfactory to you for the purchase of such Firm Shares by other
persons are not made within 36 hours thereafter, this Agreement shall terminate.
In the event of any such termination neither the Company nor the Selling
Stockholder shall be under any liability to any Underwriter (except to the
extent provided in Section 4(a)(viii), Section 4(b)(ii) and Section 6 hereof)
nor shall any Underwriter (other than an Underwriter who shall have failed,
otherwise than for some reason permitted under this Agreement, to purchase the
amount of Firm Shares agreed by such Underwriter to be purchased hereunder) be
under any liability to the Company or the Selling Stockholder (except to the
extent provided in Section 6 hereof).
If Firm Shares to which a default relates are to be purchased by
the non-defaulting Underwriters or by any other party or parties, the
Representative or the Company shall have the right to postpone the First Closing
Date for not more than seven business days in order that the necessary changes
in the Registration Statement, Prospectus and any other documents, as well as
any other arrangements, may be effected. As used herein, the term "Underwriter"
includes any person substituted for an Underwriter under this Section 8.
9. Effective Date of this Agreement and Termination.
(a) This Agreement shall become effective at 10:00 a.m., Central
Time, on the first full business day following the effective date of the
Registration Statement, or at such earlier time after the effective time of the
Registration Statement as you in your discretion shall first release the
Securities for sale to the public; provided, that if the Registration Statement
is effective at the time this Agreement is executed, this Agreement shall become
effective at such time as you in your discretion shall first release the
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Securities for sale to the public. For the purpose of this Section, the
Securities shall be deemed to have been released for sale to the public upon
release by you of the publication of a newspaper advertisement relating thereto
or upon release by you of telexes offering the Securities for sale to securities
dealers, whichever shall first occur. By giving notice as hereinafter specified
before the time this Agreement becomes effective, you, as Representative of the
several Underwriters, or the Company may prevent this Agreement from becoming
effective without liability of any party to any other party, except that the
provisions of Section 4(a)(viii), Section 4(b)(ii) and Section 6 hereof shall at
all times be effective.
(b) You, as Representative of the several Underwriters, shall have
the right to terminate this Agreement by giving notice as hereinafter specified
at any time at or prior to the First Closing Date, and the option referred to in
Section 3(b), if exercised, may be cancelled at any time prior to the Second
Closing Date, if (i) the Company shall have failed, refused or been unable, at
or prior to such Closing Date, to perform any agreement on its part to be
performed hereunder, (ii) any other condition of the Underwriters' obligations
hereunder is not fulfilled, (iii) trading on the Nasdaq National Market System,
New York Stock Exchange, the American Stock Exchange shall have been wholly
suspended, (iv) minimum or maximum prices for trading shall have been fixed, or
maximum ranges for prices for securities shall have been required, on the Nasdaq
National Market System, New York Stock Exchange or the American Stock Exchange,
by such Exchange or by order of the Commission or any other governmental
authority having jurisdiction, (v) a banking moratorium shall have been declared
by federal or state authorities, or (vi) there has occurred any material adverse
change in the financial markets in the United States or an outbreak of major
hostilities (or an escalation thereof) in which the United States is involved, a
declaration of war by Congress, any other substantial national or international
calamity or any other event or occurrence of a similar character shall have
occurred since the execution of this Agreement that, in your judgment, makes it
impractical or inadvisable to proceed with the completion of the sale of and
payment for the Securities. Any such termination shall be without liability of
any party to any other party except that the provisions of Section 4(a)(viii),
Section 4(b)(ii) and Section 6 hereof shall at all times be effective.
(c) If you elect to prevent this Agreement from becoming effective
or to terminate this Agreement as provided in this Section, the Company and an
Attorney-in-Fact, on behalf of the Selling Stockholder, shall be notified
promptly by you by telephone or telegram, confirmed by letter. If the Company
elects to prevent this Agreement from becoming effective, you and an
Attorney-in-Fact, on behalf of the Selling Stockholder, shall be notified by the
Company by telephone or telegram, confirmed by letter.
10. Default by the Selling Stockholder or the Company. If the Selling
Stockholder shall fail at the First Closing Date to sell and deliver the number
of Securities which the Selling Stockholder is obligated to sell hereunder, then
the Underwriters may at your option, by notice from you to the Company, either
(a) terminate this Agreement without any liability on the part of any
non-defaulting party or (b) elect to purchase the Securities which the Company
has agreed to sell hereunder.
If the Company shall fail at the First Closing Date to sell and
deliver the number of Securities which it is obligated to sell hereunder, then
this Agreement shall terminate without any liability on the part of any
non-defaulting party.
No action taken pursuant to this Section shall relieve the Company
or the Selling Stockholder so defaulting from liability, if any, in respect of
such default.
11. Information Furnished by Underwriters. The statements set forth in the
last paragraph of the cover page and under the caption "Underwriting" in any
Preliminary Prospectus and in the Prospectus constitute the written information
furnished by or on behalf of the Underwriters referred to in Section 2 and
Section 6 hereof.
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12. Notices. Except as otherwise provided herein, all communications
hereunder shall be in writing or by telegraph and, if to the Underwriters, shall
be mailed, telegraphed or delivered to the Representative, U. S. Bancorp Xxxxx
Xxxxxxx, Inc., U. S. Bancorp Center, 000 Xxxxxxxx Xxxx, Xxxxxxxxxxx, Xxxxxxxxx
00000, Attention: Xxxxx Xxxxxx Xxxxxxxx, with a copy to Xxxxx Xxxx LLP, 000
Xxxxx Xxxxxxxx, Xxxxx 0000, Xx. Xxxxx, Xxxxxxxx 00000, Attention: Xxxxxx X.
Xxxxxxxxx, Esq., except that notices given to an Underwriter pursuant to Section
6 hereof shall be sent to such Underwriter at the address stated in the
Underwriters' Questionnaire furnished by such Underwriter in connection with
this offering; if to the Company, shall be mailed, telegraphed or delivered to
it at 000 Xxxxx Xxxx Xxxx, Xxxx Xxxxxx, Xxxxxxxx 00000-0000, Attention: Xxxxx X.
Xxxxxxx (with a copy to Vedder, Price, Xxxxxxx & Kammholz, 000 Xxxxx XxXxxxx
Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000, Attention: Xxxxxxxx X. Xxxxx, Esq.;
if to any of the Selling Stockholder, at the address of the Attorneys-in-Fact as
set forth in the Powers of Attorney, or in each case to such other address as
the person to be notified may have requested in writing. All notices given by
telegram shall be promptly confirmed by letter. Any party to this Agreement may
change such address for notices by sending to the parties to this Agreement
written notice of a new address for such purpose. In all dealings with the
Company under this Agreement, U.S. Bancorp Xxxxx Xxxxxxx, Inc. shall act as
representative of and on behalf of the several Underwriters, and the Company
shall be entitled to act and rely upon any statement, request, notice or
agreement on behalf of the Underwriters, made or given by U.S. Bancorp Xxxxx
Xxxxxxx, Inc. on behalf of the Underwriters, as if the same shall have been made
or given in writing by the Underwriters. No statement, request, notice,
agreement or action issued or taken in connection with the transactions
contemplated by this Agreement by U.S. Bancorp Xxxxx Xxxxxxx, Inc., acting
alone, without the express written agreement of the other party, shall be valid
and binding against the other or the several Underwriters.
13. Persons Entitled to Benefit of Agreement. This Agreement shall inure to
the benefit of and be binding upon the parties hereto and their respective
successors and assigns and the controlling persons, officers and directors
referred to in Section 6. Nothing in this Agreement is intended or shall be
construed to give to any other person, firm or corporation any legal or
equitable remedy or claim under or in respect of this Agreement or any provision
herein contained. The term "successors and assigns" as herein used shall not
include any purchaser, as such purchaser, of any of the Securities from any of
the several Underwriters.
14. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Minnesota.
15. Counterparts. This Agreement may be executed in one or more
counterparts and, if executed in more than one counterpart, the executed
counterparts shall each be deemed to be an original and all such counterparts
shall together constitute one and the same instrument.
[Signature Page Follows]
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Please sign and return to the Company the enclosed duplicates of
this letter whereupon this letter will become a binding agreement between the
Company, the Selling Stockholder and the several Underwriters in accordance with
its terms.
Very truly yours,
WINTRUST FINANCIAL CORPORATION
By ______________________________________
Xxxxx X. Xxxxxxx
Executive VP & CFO & Treasurer
SELLING STOCKHOLDER
By ______________________________________
Attorney-in-Fact
Confirmed as of the date
first above mentioned, on
behalf of itself and the
other several Underwriters
named in Schedule II hereto.
U.S. BANCORP XXXXX XXXXXXX, INC.
By _________________________________
Xxxxx Xxxxxx Xxxxxxxx
Managing Director
SCHEDULE I
Selling Stockholder
Number of
Firm Shares
Name/Address to be Sold
------------ ----------
Xxxx Xxxxxxx 100,000
[ADDRESS]
Total. . . . . . . . . 100,000
==========
SCHEDULE II
Underwriter Number of Firm Shares (1)
----------- -------------------------
U.S. Bancorp Xxxxx Xxxxxxx, Inc.
Xxxxxx, Xxxxxxxx & Company, Incorporated
Advest, Inc.
Xxxx Xxxxxx Investments, Inc.
----------
Total. . . . . . . . . . . . . . . . . . . . . . . . . . 950,000
==========
_________________
(1) The Underwriters may purchase up to an additional 142,500 Option
Shares, to the extent the option described in Section 3(b) of the
Agreement is exercised, in the proportions and in the manner described
in the Agreement.
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
Upgrad Personnel Services, Inc.
Wintrust Asset Management Company, N.A.
Wintrust Capital Trust I
Wintrust Capital Trust II