EXHIBIT 1.1
-----------
[1,000,000] Shares(1)
Wintrust Financial Corporation
Common Stock
(Without Par Value)
EQUITY UNDERWRITING AGREEMENT
September __, 2003
RBC Xxxx Xxxxxxxx Inc
As the Representative of the several
Underwriters named in Schedule I hereto
c/o RBC Capital Markets
00 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000
Ladies and Gentlemen:
Wintrust Financial Corporation, an Illinois corporation (the
"Company"), proposes to sell to the several underwriters (the "Underwriters")
named in Schedule I hereto for whom you are acting as representative (the
"Representative") an aggregate of [1,000,000] shares (the "Firm Shares") of the
Company's common stock, without par value, together with each associated
preferred share purchase right under the Rights Agreement, dated as of July 28,
1998 (the "Rights Agreement"), between the Company and Illinois Stock Transfer
Company, as Rights Agent (the "Common Stock"). The respective amounts of the
Firm Shares to be so purchased by the several Underwriters are set forth
opposite their names in Schedule I hereto. The Company also proposes to sell at
the Underwriters' option an aggregate of up to [150,000] additional shares (the
"Option Shares") of Common Stock as set forth below.
As the Representative, you have advised the Company that (a) you are
authorized to enter into this Agreement on behalf of the several Underwriters
and (b) the several Underwriters are willing, acting severally and not jointly,
to purchase the number of Firm Shares set forth opposite their respective names
in Schedule I, plus their pro rata portion of the Option Shares if you elect to
exercise the over-allotment option in whole or in part for the accounts of the
several Underwriters. The Firm Shares and the Option Shares (to the extent the
aforementioned option is exercised) are herein collectively called the "Shares."
In consideration of the mutual agreements contained herein and of the
interests of the parties in the transactions contemplated hereby, the parties
hereto agree as follows:
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1 Plus an option to purchase up to [150,000] additional shares to cover
over-allotments.
1. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
---------------------------------------------
The Company represents and warrants to each of the Underwriters as
follows:
(a) The Company meets the requirements for use of Form S-3 and a
registration statement (Registration No. __________) on Form
S-3 relating to the Shares, including a preliminary prospectus
and such amendments to such registration statement as may have
been required to the date of this Agreement, has been prepared
by the Company under the provisions of the Securities Act of
1933 (the "Act"), and the rules and regulations (collectively
referred to as the "Rules and Regulations") of the Securities
and Exchange Commission (the "Commission") thereunder, and has
been filed with the Commission. The term "Preliminary
Prospectus" as used herein means a preliminary prospectus as
contemplated by Rule 430 or Rule 430A ("Rule 430A") of the
Rules and Regulations included at any time as part of the
registration statement. Copies of such registration statement,
including any amendments thereto, any Preliminary Prospectus
(meeting the requirements of the Rules and Regulations)
contained therein and the exhibits, financial statements and
schedules, as finally amended and revised, have heretofore
been delivered by the Company to you. The term "Registration
Statement" means the registration statement described above,
as amended at the time it became effective (the "Effective
Date"), including financial statements and all exhibits and
any information deemed to be included by Rule 430A or Rule 434
of the Rules and Regulations. If the Company files a
registration statement to register a portion of the Shares and
relies on Rule 462(b) of the Rules and Regulations for such
registration statement to become effective upon filing with
the Commission (the "Rule 462 Registration Statement"), then
any reference to the "Registration Statement" shall be deemed
to include the Rule 462 Registration Statement, as amended
from time to time. The term "Prospectus" means the form of
prospectus first filed with the Commission pursuant to Rule
424(b) of the Rules and Regulations. Any reference herein to
the Registration Statement, any Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include the
documents incorporated or deemed to be incorporated by
reference therein pursuant to Item 12 of Form S-3 that were
filed under the Securities Exchange Act of 1934 (the "Exchange
Act"), on or before the Effective Date or the date of such
Preliminary Prospectus or the Prospectus, as the case may be.
All references in this Agreement to the Registration
Statement, any Preliminary Prospectus or the Prospectus, or
any amendments or supplements to the foregoing, shall include
the copy thereof filed with the Commission pursuant to its
Electronic Data Gathering, Analysis and Retrieval System
("XXXXX"). Any reference herein to the terms "amend,"
"amendment" or "supplement" with respect to the Registration
Statement, any Preliminary Prospectus or the Prospectus shall
be deemed to refer to and include the filing of any document
under the Exchange Act after the Effective Date, or the date
of any Preliminary Prospectus or the Prospectus, as the case
may be, and deemed to be incorporated therein by reference.
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(b) The Commission has not issued an order preventing or
suspending the use of any Prospectus relating to the proposed
offering of the Shares nor instituted proceedings for that
purpose. The Registration Statement contains, and the
Prospectus and any amendments or supplements thereto will
contain, all statements that are required to be stated therein
by, and will conform to, the requirements of the Act and the
Rules and Regulations. On the Effective Date, the date the
Prospectus is first filed with the Commission pursuant to Rule
424(b) of the Rules and Regulations, at all times subsequent
to and including the Closing Date and when any post-effective
amendment to the Registration Statement becomes effective or
any amendment or supplement to the Prospectus is filed with
the Commission, the Registration Statement and the Prospectus
(as amended or as supplemented if the Company shall have filed
with the Commission any amendment or supplement thereto),
including the financial statements included or incorporated by
reference in the Prospectus, did or will comply with all
applicable provisions of the Act, the Exchange Act, the rules
and regulations thereunder (the "Exchange Act Rules and
Regulations") and the Rules and Regulations and will contain
all statements required to be stated therein in accordance
with the Act, the Rules and Regulations, the Exchange Act and
the Exchange Act Rules and Regulations. Any Preliminary
Prospectus and the Prospectus filed by electronic transmission
by XXXXX (except as may be permitted by Regulation S-T under
the Act) were identical to the copies thereof delivered to the
Underwriters for use in connection with the offer and sale of
the Shares. On the Effective Date and when any post-effective
amendment to the Registration Statement becomes effective, no
part of the Registration Statement or any such amendment did
or will contain any untrue statement of a material fact or
omit to state a material fact required to be stated therein or
necessary in order to make the statements therein not
misleading. Any Preliminary Prospectus, as of its date, and
the Prospectus, as amended or supplemented, as of its date and
at all subsequent times through the Closing Date and the
Option Closing Date, if applicable, did not or will not
contain any untrue statement of material fact or omit to state
a material fact necessary to make the statements therein, in
the light of the circumstances under which they were made, not
misleading. The foregoing representations and warranties in
this Section 1(b) do not apply to any statements or omissions
made in reliance on and in conformity with information
relating to the Underwriters furnished in writing to the
Company by the Underwriters specifically for inclusion in the
Registration Statement or Prospectus or any amendment or
supplement thereto. There are no contracts or documents that
are required to be filed as exhibits to the Registration
Statement or described in the Registration Statement or the
Prospectus that are not so filed or described as required, and
such contracts and documents as are summarized in the
Registration Statement or the Prospectus are fairly summarized
in all material respects.
(c) The documents that are incorporated by reference in the
Prospectus or from which information is so incorporated by
reference, when they became effective or were filed with the
Commission, as the case may be, complied in all material
respects with the requirements of the Act, the Rules and
Regulations, the Exchange Act and the Exchange Act Rules and
Regulations; and any documents
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so filed and incorporated by reference subsequent to the date
hereof shall, when they are filed with the Commission, conform
in all material respects with the requirements of the Act, the
Rules and Regulations, the Exchange Act and the Exchange Act
Rules and Regulations.
(d) This Agreement has been duly authorized, executed and
delivered by the Company, and constitutes a valid, legal and
binding obligation of the Company, enforceable in accordance
with its terms, except as rights to indemnity hereunder may be
limited by Federal or state securities laws and except as such
enforceability may be limited by bankruptcy, insolvency,
reorganization or similar laws affecting the rights of
creditors generally, and subject to general principles of
equity. The Company has full power and authority to enter into
this Agreement and to authorize, issue and sell the Shares as
contemplated by this Agreement.
(e) The Company is duly organized, validly existing and in good
standing under the laws of the State of Illinois, with full
corporate and other power and authority to own, lease and
operate its properties and conduct its business as described
in and contemplated by the Registration Statement and the
Prospectus and as currently being conducted and is duly
registered as a financial holding company under the Bank
Holding Company Act of 1956, as amended (the "BHC Act"). The
significant direct or indirect subsidiaries of the Company are
listed on Exhibit A attached hereto and incorporated herein
(the "Subsidiaries"). The Company does not own or control,
directly or indirectly, more than 5% of any class of equity
security of any corporation, association or other entity other
than (i) the Subsidiaries listed on Exhibit A and (ii) Upgrade
Personnel Services, Inc., Wintrust Capital Trust I, Wintrust
Capital Trust II and Wintrust Information Technology Services
Co., none of which conducts any material business operations
or has incurred any material liability other than as set forth
in the Registration Statement and the Prospectus. [LAKE FOREST
BANK AND TRUST COMPANY, HINSDALE BANK AND TRUST COMPANY, NORTH
SHORE COMMUNITY BANK AND TRUST COMPANY, LIBERTYVILLE BANK AND
TRUST COMPANY, BARRINGTON BANK AND TRUST COMPANY, N.A.,
CRYSTAL LAKE BANK AND TRUST COMPANY, N.A. AND NORTHBROOK BANK
AND TRUST COMPANY] are collectively referred to as the
"Banks." Each of the Subsidiaries is a state bank, trust
company, corporation, limited liability company or national
banking association duly incorporated or organized (as the
case may be), validly existing and in good standing under the
laws of its respective jurisdiction of incorporation or
organization (as the case may be). Each of the Subsidiaries
has full corporate or other power and authority to own, lease
and operate its properties and to conduct its business as
described in and contemplated by the Registration Statement
and the Prospectus and as currently being conducted. The
deposit accounts of each Bank are insured by the Bank
Insurance Fund administered by the Federal Deposit Insurance
Corporation (the "FDIC") up to the maximum amount provided by
law; and no proceedings for the modification, termination or
revocation of any such insurance are pending or, to the
knowledge of the Company, threatened. Each of the Company and
the Subsidiaries is duly qualified to transact business as
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a foreign entity and is in good standing in each other
jurisdiction in which it owns or leases real property or in
which the conduct of its business makes such qualification
necessary and in which the failure to so qualify would,
individually or in the aggregate, have a material adverse
effect on the general affairs, condition (financial or
otherwise), business, property, prospects, net worth, earnings
or results of operations of the Company and the Subsidiaries
on a consolidated basis, whether or not arising from
transactions in the ordinary course of business (a "Material
Adverse Effect"). All of the issued and outstanding shares of
capital stock of or other equity interests in the Subsidiaries
(A) have been duly authorized and are validly issued, (B) are
fully paid and nonassessable except to the extent such shares
may be deemed assessable under 12 U.S.C. Section 55 or 12
U.S.C. Section 1831o or under applicable state banking law and
(C) except as disclosed in the Prospectus, are directly owned
by the Company free and clear of any security interest,
mortgage, pledge, lien, encumbrance, restriction upon voting
or transfer, preemptive rights, claim or equity.
(f) Except as contemplated by 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 the Subsidiaries has incurred any material
liabilities or obligations, direct or contingent, or entered
into any material transactions, other than 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 there has not been any change in the capital stock
(other than a change in the number of outstanding shares of
Common Stock due to the issuance of shares upon the exercise
of outstanding options or warrants), or any material change in
the short-term or long-term debt, or any issuance of options,
warrants, convertible securities or other rights to purchase
the capital stock, of the Company or any of the Subsidiaries,
or any Material Adverse Effect, or any development involving a
prospective Material Adverse Effect.
(g) The outstanding shares of Common Stock have been duly
authorized and validly issued and are fully paid and
non-assessable; the Shares to be issued and sold by the
Company pursuant to this Agreement have been duly authorized
and, when issued, delivered and paid for as contemplated
herein, will be validly issued, fully paid and non-assessable;
and no preemptive rights of shareholders exist with respect to
any of the Shares or the issue and sale thereof. Neither the
filing of the Registration Statement nor the offering or sale
of the Shares as contemplated by this Agreement gives rise to
any rights, other than those that have been waived, for or
relating to the registration of any shares of Common Stock.
(h) The information set forth under the caption "Capitalization"
in the Prospectus is true and correct. All of the Shares
conform to the description thereof contained in the
Registration Statement. The form of certificates for the
Shares conforms to the corporate law of the jurisdiction of
the Company's incorporation. Immediately after the issuance
and sale of the Shares to the Underwriters, no shares of the
Company's preferred stock, without par value (the "Preferred
Stock"), shall be issued and outstanding and no holder of any
shares of
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capital stock, securities convertible into or exchangeable or
exercisable for capital stock or options, warrants or other
rights to purchase capital stock or any other securities of
the Company shall have any existing or future right to acquire
any shares of Preferred Stock other than pursuant to the
Rights Agreement. No holders of securities of the Company have
rights to the registration of such securities under the
Registration Statement that have not been waived.
(i) The Company has not distributed and will not distribute any
prospectus or other offering material (including, without
limitation, content on the Company's website that may be
deemed to be a prospectus or other offering material) in
connection with the offering and sale of the Shares other than
any Preliminary Prospectus or the Prospectus or other
materials permitted by the Act to be distributed by the
Company.
(j) The consolidated financial statements of the Company and the
Subsidiaries, together with related notes and schedules as set
forth or incorporated by reference in the Registration
Statement, present fairly the financial position and the
results of operations and cash flows of the Company and its
consolidated Subsidiaries, at the indicated dates and for the
indicated periods. Such financial statements and related
schedules have been prepared in accordance with U.S. generally
accepted principles of accounting, consistently applied
throughout the periods involved, except as disclosed therein,
and all adjustments necessary for a fair presentation of
results for such periods have been made other than normal,
recurring adjustments. The summary financial and statistical
data included or incorporated by reference in the Registration
Statement presents fairly the information shown therein and
such data has been compiled on a basis consistent with the
financial statements presented therein and the books and
records of the Company. Except as disclosed in the
Registration Statement and the Prospectus, there are no pro
forma financial statements or other pro forma financial
information required to be included or incorporated by
reference in the Registration Statement or the Prospectus. No
other financial statements or schedules of the Company are
required by the Act, the Rules and Regulations, the Exchange
Act or the Exchange Act Rules and Regulations to be included
or incorporated by reference in the Registration Statement or
the Prospectus.
(k) The Company maintains a system of internal accounting controls
sufficient to provide reasonable assurances that (i)
transactions are executed in accordance with management's
general or specific authorization; (ii) transactions are
recorded as necessary to permit preparation of financial
statements in conformity with generally accepted accounting
principles and to maintain accountability for assets; and
(iii) access to assets is permitted only in accordance with
management's general or specific authorization.
(l) Ernst & Young LLP (the "Accountant"), which has certified
certain financial statements of the Company and delivered its
opinion with respect to the audited financial statements and
schedules included in the Registration Statement and the
Prospectus, is an independent public accounting firm within
the meaning
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of the Act and the Rules and Regulations and the Accountant is
not in violation of the auditor independence requirements of
the Xxxxxxxx-Xxxxx Act of 2002 (the "Xxxxxxxx-Xxxxx Act").
(m) There is no action, suit, claim or proceeding pending or, to
the knowledge of the Company, threatened against the Company
or any of the Subsidiaries before any court or administrative
agency or otherwise that if determined adversely to the
Company or any of its Subsidiaries might have a Material
Adverse Effect or prevent the consummation of the transactions
contemplated hereby, except as set forth in the Registration
Statement and the Prospectus.
(n) No labor problem or dispute with the employees of the Company
or the Subsidiaries exists or, to the Company's knowledge, is
threatened or imminent, that could have a Material Adverse
Effect.
(o) The Company and the Subsidiaries have good and marketable
title to all of the properties and assets described in the
Registration Statement as being owned by them and material to
their businesses, in each case, subject to no lien, mortgage,
pledge, charge or encumbrance of any kind except those
described in the Registration Statement or that are not
material in amount or that do not materially interfere with
the use made or proposed to be made of such property or
assets. The Company and the Subsidiaries occupy their leased
properties under valid and binding leases conforming in all
material respects to the description thereof set forth in the
Registration Statement and the Prospectus.
(p) The Company and the Subsidiaries have filed all Federal,
state, local and foreign tax returns required to be filed and
have paid all taxes indicated by said returns and all
assessments received by them or any of them to the extent that
such taxes have become due and are not being contested in good
faith, except where the failure to so file would not have a
Material Adverse Effect. All tax liabilities have been
adequately provided for in the financial statements of the
Company, and the Company does not know of any actual or
proposed additional material tax assessments. There are no
transfer taxes or other similar fees or charges under Federal
law or the laws of any state, or any political subdivision
thereof, required to be paid by the Company in connection with
the execution and delivery of this Agreement or the issuance
by the Company or sale by the Company of the Shares.
(q) Since the respective dates as of which information is given in
the Registration Statement and the Prospectus, there has not
been any material adverse change or any development involving
a prospective change that has had or is reasonably likely to
have a Material Adverse Effect, whether or not occurring in
the ordinary course of business, and there has not been any
material transaction entered into or any material transaction
that is probable of being entered into by the Company or the
Subsidiaries, other than transactions in the ordinary course
of business and changes and transactions described in the
Registration Statement and the Prospectus, as it may be
amended or
7
supplemented. The Company and the Subsidiaries have no
material contingent obligations that are not disclosed in the
Company's financial statements in the Registration Statement
and the Prospectus.
(r) Neither the Company nor any of the Subsidiaries is or, with
the giving of notice or lapse of time or both, will be in
violation of or in default under (i) any agreement, lease,
contract, indenture or other instrument or obligation to which
it is a party or by which it, or any of its properties, is
bound and which default has had or is reasonably likely to
have a Material Adverse Effect or (ii) its respective charter
("Charter"), by-laws ("By-laws") or other similar
organizational instrument. The execution and delivery of this
Agreement and the consummation of the transactions
contemplated herein and the fulfillment of the terms hereof
will not conflict with or result in a breach of any of the
terms or provisions of, or constitute a default under, any
material contract, indenture, mortgage, deed of trust or other
agreement or instrument to which the Company or any of the
Subsidiaries is a party, or the Charter or By-laws of the
Company or any order, rule or regulation applicable to the
Company or any of the Subsidiaries or any court or any
regulatory body or administrative agency or other governmental
body having jurisdiction over the Company.
(s) Each approval, consent, order, authorization, designation,
declaration or filing by or with any regulatory,
administrative or other governmental body necessary in
connection with the execution and delivery by the Company of
this Agreement and the consummation of the transactions herein
contemplated (except such additional steps as may be required
by the National Association of Securities Dealers, Inc. (the
"NASD") or such additional steps as may be necessary to
qualify the Shares for public offering by the Underwriters
under state securities or Blue Sky laws) has been obtained or
made and is in full force and effect.
(t) The Company and each of the Subsidiaries have all licenses,
certifications, permits, franchises and other regulatory
authorizations ("Permits") from any appropriate governmental
authorities as are necessary to conduct their businesses as
currently conducted and to own, lease and operate their
properties in the manner described in the Prospectus except
where the failure to hold such Permits would not have a
Material Adverse Effect. There is no claim, proceeding or
controversy, pending or, to the knowledge of the Company or
any of the Subsidiaries, threatened, involving the status of
or sanctions under any of the Permits. The Company and each of
the Subsidiaries have fulfilled and performed all of their
material obligations with respect to the Permits, and no event
has occurred that allows, or after notice or lapse of time
would allow, the revocation, termination, modification or
other impairment of the rights of the Company or any of the
Subsidiaries under such Permit.
(u) To the Company's knowledge[, EXCEPT FOR AFFILIATIONS WITH
XXXXX XXXXXX INVESTMENTS LLC, A DELAWARE LIMITED LIABILITY
COMPANY AND ONE OF THE SUBSIDIARIES ("WHI"), AND FOCUSED
INVESTMENTS LLC, AN ILLINOIS LIMITED LIABILITY COMPANY AND ONE
OF THE SUBSIDIARIES ("FOCUSED")], there are no
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affiliations or associations between any member of the NASD
and any of the Company's officers, directors or 5% or greater
securityholders, except as set forth in the Registration
Statement or in questionnaires completed by such persons and
previously delivered to counsel for the Underwriters.
(v) Neither the Company, nor to the Company's knowledge, any of
its affiliates, has taken or proposes to take, directly or
indirectly, any action designed to cause or result in, or that
has constituted or that might reasonably be expected to
constitute, the stabilization or manipulation of the price of
the shares of Common Stock to facilitate the sale or resale of
the Shares. The Company acknowledges that the Underwriters may
engage in passive market making transactions in the Shares on
the Nasdaq National Market in accordance with Regulation M
under the Exchange Act.
(w) Neither the Company nor any of the Subsidiaries is, nor will
be after receipt of payment for the Shares, an "investment
company" or an entity "controlled" by an "investment company"
within the meaning of such term under the Investment Company
Act of 1940, as amended (the "Investment Company Act"), and
the rules and regulations of the Commission thereunder. The
Company and the Subsidiaries will conduct their businesses in
a manner so that they will not become subject to the
Investment Company Act.
(x) The Company and each of the Subsidiaries carry, or are covered
by, insurance in such amounts and covering such risks as is in
the judgment of the Company adequate and commercially
reasonable for the conduct of their respective businesses and
the value of their respective properties and as is customary
for companies engaged in similar businesses. All policies of
insurance insuring the Company or any Subsidiary or any of
their respective businesses, assets, employees, officers and
directors are in full force and effect, and the Company and
the Subsidiaries are in compliance with the terms of such
policies except where the failure to be in such compliance
would not have a Material Adverse Effect. There are no claims
by the Company or any Subsidiary under any such policy or
instrument as to which an insurance company is denying
liability or defending under a reservation of rights clause,
except where the denial of such claims would not have a
Material Adverse Effect.
(y) The Company is in compliance in all material respects with all
presently applicable provisions of the Employee Retirement
Income Security Act of 1974, as amended, including the
regulations and published interpretations thereunder
("ERISA"); the Company has no "pension plan" (as defined in
ERISA) for which it would have any liability; the Company has
not incurred and does not expect to incur liability under (i)
Title IV of ERISA with respect to termination of, or
withdrawal from, any "pension plan" or (ii) Sections 412 or
4971 of the Internal Revenue Code of 1986, as amended,
including the regulations and published interpretations
thereunder (the "Code"); and each "pension plan" for which the
Company would have any liability that is intended to be
qualified under Section 401(a) of the Code is so qualified in
all material respects and nothing has
9
occurred, whether by action or by failure to act, that would
cause the loss of such qualification.
(z) Other than as contemplated by this Agreement, the Company has
not incurred any liability for any finder's or broker's fee,
or agent's commission, in connection with the execution and
delivery of this Agreement or the consummation of the
transactions contemplated hereby.
(aa) Neither the Company nor any of the Subsidiaries has sent or
received any notice indicating the termination of or intention
to terminate any (i) of the contracts or agreements filed as
an exhibit to the Registration Statement or (ii) other
contract or agreement referred to or described in the
Registration Statement and the Prospectus the termination of
which would have a Material Adverse Effect, and no such
termination has been threatened by the Company, any Subsidiary
or any other party to any such contract or agreement.
(bb) Neither the Company nor any Subsidiary is in violation of any
statute, rule, regulation, decision or order of any
governmental agency or body or any court, domestic or foreign,
relating to the use, disposal or release of hazardous
chemicals, toxic substances or radioactive and biological
materials or relating to the protection or restoration of the
environment or human exposure to hazardous chemicals, toxic
substances or radioactive and biological materials
(collectively, "Environmental Laws"). Neither the Company nor
any of the Subsidiaries owns or operates any real property
contaminated with any substance that is subject to any
Environmental Laws, is liable for any off-site disposal or
contamination pursuant to any Environmental Laws or is subject
to any claim relating to any Environmental Laws, which
violation, contamination, liability or claim would
individually or in the aggregate have a Material Adverse
Effect; and the Company is not aware of any pending
investigation that might lead to such a claim.
(cc) No payments or inducements have been made or given, directly
or indirectly, to any Federal or local official or candidate
for any Federal or state office in the United States or
foreign offices by the Company or any Subsidiary or, to the
best knowledge of the Company, by any of their officers,
directors, employees or agents or any other person in
connection with any opportunity, contract, permit,
certificate, consent, order, approval, waiver or other
authorization relating to the business of the Company or any
Subsidiary, except for such payments or inducements as were
lawful under applicable laws, rules and regulations. Neither
the Company nor any Subsidiary, nor, to the best knowledge of
the Company, any director, officer, agent, employee or other
person associated with or acting on behalf of the Company or
any Subsidiary, (i) has used any corporate funds for any
unlawful contribution, gift, entertainment or other unlawful
expense relating to political activity; (ii) made any direct
or indirect unlawful payment to any government official or
employee from corporate funds; (iii) violated or is in
violation of any provision of the Foreign Corrupt Practices
Act of 1977; or (iv) made any bribe, unlawful rebate, payoff,
influence payment,
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kickback or other unlawful payment in connection with the
businesses of the Company or any Subsidiary.
(dd) The Company and each of the Subsidiaries own or possess all
patents, patent applications, trademarks, service marks,
tradenames, trademark registrations, service xxxx
registrations, copyrights, licenses, inventions, trade secrets
and rights necessary for the conduct of the businesses of the
Company and the Subsidiaries as currently carried on and as
described in the Registration Statement and Prospectus except
where the failure to so own or possess would not have a
Material Adverse Effect; except as stated in the Registration
Statement and the Prospectus, to the best knowledge of the
Company, no name that the Company or any of the Subsidiaries
uses and no other aspect of the businesses of the Company or
any of the Subsidiaries will involve or give rise to any
infringement of, or license or similar fees for, any patents,
patent applications, trademarks, service marks, tradenames,
trademark registrations, service xxxx registrations,
copyrights, licenses, inventions, trade secrets or other
similar rights of others that could reasonably be expected to
have a Material Adverse Effect and neither the Company nor any
of the Subsidiaries has received any notice alleging any such
infringement or fee.
(ee) The Company and each of the Subsidiaries are in compliance
with Federal, state, local and foreign laws, statutes,
ordinances, rules, regulations and decrees ("Laws") applicable
to their businesses, including, without limitation, (i)
licensing and certification Laws covering any aspect of the
businesses of the Company or any of the Subsidiaries and (ii)
the Xxxxxxxx-Xxxxx Act, and neither the Company nor any of the
Subsidiaries has received any notification asserting any
failure to comply with or violation of any such Laws, except
in all such cases where such noncompliance or violation would
not have a Material Adverse Effect.
(ff) The activities of the Company and the Subsidiaries are
permitted under applicable Federal and state banking laws and
regulations. First Insurance Funding Corp., a Subsidiary of
the Company, is validly licensed by the Illinois Department of
Financial Institutions and in all other jurisdictions in which
the conduct of its business requires license or qualification.
The Company has all necessary approvals, including the
approval of the Office of the Comptroller of Currency (the
"OCC"), the Illinois Office of Banks and Real Estate (the
"OBRE") and the Board of Governors of the Federal Reserve
System, as applicable, to own the capital stock of its
subsidiaries. Neither the Company nor any of the Subsidiaries
is a party or subject to any agreement or memorandum with, or
directive or other order issued by, the Board of Governors of
the Federal Reserve System, the OCC, the OBRE, the FDIC or
other regulatory authority having jurisdiction over it (each,
a "Regulator" and, collectively, the "Regulators"), which
imposes any restrictions or requirements not generally
applicable to entities of the same type as the Company and the
Subsidiaries. Neither the Company nor any of the Subsidiaries
is subject to any directive from any Regulator to make any
11
material change in the method of conducting their respective
businesses, and no such directive is pending or threatened by
such Regulators.
(gg) To the best knowledge of the Company, each of the Company and
the Subsidiaries has properly administered all accounts for
which any of them acts as a fiduciary, including, but not
limited to, accounts for which any of them serves as a
trustee, agent, custodian, personal representative, guardian,
conservator or investment adviser, 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 have so administered or to be in compliance would
not have a Material Adverse Effect. None of the Company, the
Subsidiaries or any of their respective directors, officers or
employees has committed any material breach of trust with
respect to any such fiduciary account, and the accountings for
each such fiduciary account are true and correct in all
material respects and accurately reflect the assets of such
fiduciary account in all material respects.
(hh) Each agreement under which the Company and the Subsidiaries,
including, without limitation, Xxxxx Xxxxxx Management Company
("WHMC"), provides investment advisory service to any person
that is subject to Section 15 of the Investment Company Act
has been duly approved at all times in compliance in all
material respects with Section 15 of the Investment Company
Act and applicable Law. Except where the failure, either
individually or in the aggregate, would not have a Material
Adverse Effect, each such investment advisory contract has
been performed in accordance with the Investment Company Act
and any other applicable Law.
(ii) WHMC is duly registered as an investment adviser with the
Commission under the Investment Advisers Act of 1940, as
amended (the "Investment Advisers Act"). Each investment
advisory representative of WHMC is duly licensed, registered
or qualified in each state in which such licensing,
registration or qualification is required by virtue of the
activities of such person, except where such failure, either
individually or in the aggregate, would not have a Material
Adverse Effect. WHMC has made such notice filings with such
states as are required by state law, except where such failure
would not have a Material Adverse Effect. WHI and Focused is
duly registered as a broker-dealer with the Commission under
the Exchange Act and with each state agency pursuant to which
each such entity is required to be registered by virtue of the
conduct of its business. Each associated person of WHI and
Focused is duly licensed, registered or qualified in each
state in which such licensing, registration or qualification
is required by virtue of the activities of such person, except
where such failure, either individually or in the aggregate,
would not have a Material Adverse Effect. WHI is a member in
good standing of the New York Stock Exchange, Inc. ("NYSE"),
the NASD, the Chicago Stock Exchange, Incorporated ("CHX") and
the American Stock Exchange, Inc. ("AMEX"). Focused is a
member in good standing of the NASD. Other than WHI and
Focused, no Subsidiary is registered as, or required to be
registered as, an investment adviser or a broker-dealer with
the Commission or any applicable state regulatory agency. Each
of WHMC, WHI
12
and Focused has timely filed all forms, reports, registration
statements, schedules and other documents, together with any
amendments required to be made with respect thereto, that were
required to be filed with any Federal, state or securities
self-regulatory organization, including, without limitation,
the Commission, NYSE, NASD, CHX and AMEX, and has paid all
fees and assessments due and payable in connection therewith,
except where such failure to file such reports, registration
statements, schedules and other documents or to pay such fees
and assessments, either individually or in the aggregate,
would not have a Material Adverse Effect. As of their
respective dates, all forms, reports, schedules or other
filings made by each of WHMC, WHI and Focused with Federal,
state or securities self-regulatory organizations or
authorities complied in all material respects with the
applicable requirements of Federal and state securities laws
and the rules and regulations of such securities
self-regulatory organizations or authorities. None of such
filings, as of their respective dates, contained any untrue
statement of material fact, or omitted to state a material
fact required to be stated therein or necessary in order to
make the statements therein, in the light of the circumstances
under which they were made, not misleading. None of WHMC, WHI
or Focused or any other affiliate of the Company (other than
the WH Funds (as defined below)) is required to be registered
as an investment company with the Commission under the
Investment Company Act. WHMC is the investment adviser to the
Xxxxx Xxxxxx Money Market Fund, the Xxxxx Xxxxxx Growth Fund,
Xxxxx Xxxxxx Income Fund and the Xxxxx Xxxxxx CorePortfolio
Fund (collectively, the "WH Funds"), each of which is a
portfolio of the Xxxxx Xxxxxx Investment Trust, which is
registered as an investment company with the Commission under
the Investment Company Act. Except as set forth in the
preceding sentence, to the knowledge of the Company, no person
to which WHMC, WHI and Focused provide investment advisory
services is required to register as an investment company
under the Investment Company Act. Except for (i) the
registrations described herein and (ii) the registrations of
offerings by the WH Funds under the Act described herein, the
business activities of WHMC, WHI and Focused and their
respective employees (acting in their capacities as such), as
presently and heretofore conducted, do not require any
registrations under the Act, the Exchange Act or state
securities law. With respect to investment advisory contracts
involving employee benefit plans, WHMC has complied in all
material respects with requirements imposed on investment
managers to employee benefit plans under ERISA. WHMC has
maintained during all relevant periods fiduciary insurance.
(jj) The WH Funds have timely filed all forms, reports,
registration statements, schedules and other documents,
together with any amendments required to be made with respect
thereto, that were required to be filed with any Federal,
state or securities self-regulatory organization, including,
without limitation, the Commission, NYSE, NASD, CHX, AMEX or
any of their affiliates, and have paid all fees and
assessments due and payable in connection therewith, except
where such failure, either individually or in the aggregate,
would not have a Material Adverse Effect. WHMC has received no
notice from any governmental authority or securities
self-regulatory organization advising
13
WHMC of the initiation of any administrative proceeding or
investigation into or related to the business or operations of
any of the WH Funds. To the knowledge of the Company, there is
no unresolved violation, criticism or exception made in
writing by any governmental authority with respect to any
report or statement filed by the WH Funds by such governmental
authority or securities self-regulatory organization related
to any examination of the WH Funds.
(kk) Upon issuance of the Shares contemplated hereby, the Shares
will be eligible for quotation on the Nasdaq National Market
without further action by the Company or The Nasdaq Stock
Market, Inc.
(ll) In the reasonable judgment of management, the statements
contained in the Registration Statement and the Prospectus
regarding the Company's expectations, plans and intentions,
and any other statements that constitute "forward-looking"
information within the meaning of the Securities Act and the
Exchange Act, were made by the Company on a reasonable basis
and reflect the Company's good faith belief or estimate of the
matters described therein.
(mm) Any certificate signed by any officer of the Company and
delivered to the Representative or counsel for the
Underwriters in connection with the offering of the Shares
contemplated hereby shall be deemed a representation and
warranty by the Company made as of the date of such
certificate (except to the extent a date is specified in such
representation or warranty, in which case such representation
or warranty shall be deemed made as of such date) to each
Underwriter and shall be deemed to be a part of this Section 1
and incorporated herein by reference.
(nn) The Company is in compliance with the applicable provisions of
the Xxxxxxxx-Xxxxx Act that are effective and is actively
taking steps to ensure that it will be in compliance with
other applicable provisions of the Xxxxxxxx-Xxxxx Act upon the
effectiveness of such provisions.
2. PURCHASE, SALE AND DELIVERY OF THE FIRM SHARES.
----------------------------------------------
(a) On the basis of the representations, warranties and covenants
contained herein, and subject to the conditions set forth
herein, the Company agrees to sell to the Underwriters and
each Underwriter agrees, severally and not jointly, to
purchase, at a price of $__________ per share, the number of
Firm Shares set forth opposite the name of each Underwriter in
Schedule I hereof, subject to adjustments in accordance with
Section 9 hereof.
(b) Payment for the Firm Shares to be sold hereunder is to be made
in Federal funds (same day) against delivery of certificates
therefor to the Representative for the several accounts of the
Underwriters. Such payment and delivery are to be made through
the facilities of the Depository Trust Company, New York, New
York at approximately 10:00 a.m., New York time, on the third
business day after the date of this Agreement or at such other
time and date not later than five business days thereafter as
you, as the Representative of the several Underwriters,
14
and the Company shall agree upon, such time and date being
herein referred to as the "Closing Date." As used herein,
"business day" means a day on which the NYSE is open for
trading and on which banks in New York are open for business
and are not permitted by law or executive order to be closed.
(c) In addition, on the basis of the representations and
warranties herein contained and subject to the terms and
conditions herein set forth, the Company hereby grants an
option to the several Underwriters to purchase the Option
Shares at the price per share as set forth in paragraph (a) of
this Section. The option granted hereby may be exercised in
whole or in part by giving written notice (i) at any time
before the Closing Date and (ii) only once thereafter within
30 days after the date of this Agreement, by you, as the
Representative of the several Underwriters, to the Company
setting forth the number of Option Shares as to which the
several Underwriters are exercising the option, the names and
denominations in which the Option Shares are to be registered
and the time and date at which such certificates are to be
delivered. The time and date at which certificates for Option
Shares are to be delivered shall be determined by the
Representative but shall not be earlier than three nor later
than ten full business days after the exercise of such option,
nor in any event prior to the Closing Date (such time and date
being herein referred to as the "Option Closing Date"). If the
date of exercise of the option is three or more days before
the Closing Date, the notice of exercise shall set the Closing
Date as the Option Closing Date. The number of Option Shares
to be purchased by each Underwriter shall be in the same
proportion to the total number of Option Shares being
purchased as the number of Firm Shares being purchased by such
Underwriter bears to the total number of Firm Shares, adjusted
by you, as the Representative of the several Underwriters, in
such manner as to avoid fractional shares. The option with
respect to the Option Shares granted hereunder may be
exercised only to cover over-allotments in the sale of the
Firm Shares by the Underwriters. You, as the Representative of
the several Underwriters, may cancel such option at any time
prior to its expiration by giving written notice of such
cancellation to the Company. To the extent, if any, that the
option is exercised, payment for the Option Shares shall be
made on the Option Closing Date in Federal funds (same day)
through the facilities of the Depository Trust Company in New
York, New York drawn to the order of the Company.
3. OFFERING BY THE UNDERWRITERS.
----------------------------
It is understood that the several Underwriters are to make a public
offering of the Firm Shares as soon as the Representative deems it advisable to
do so. The Firm Shares are to be initially offered to the public at the initial
public offering price set forth in the Prospectus. The Representative may from
time to time thereafter change the public offering price and other selling
terms. To the extent, if at all, that any Option Shares are purchased pursuant
to Section 2 hereof, the Underwriters will offer them to the public on the
foregoing terms.
15
It is further understood that you will act as the Representative for
the Underwriters in the offering and sale of the Shares in accordance with a
Master Agreement Among Underwriters entered into by you and the several other
Underwriters.
4. COVENANTS OF THE COMPANY.
------------------------
The Company covenants and agrees with the several Underwriters as
follows.
(a) If the Registration Statement has not already been declared
effective by the Commission, the Company will (i) use its best
efforts to cause the Registration Statement to become
effective or, if the Company has elected to rely on Rule 430A
of the Rules and Regulations, to prepare and timely file with
the Commission under Rule 424(b) of the Rules and Regulations
a Prospectus in a form approved by the Representative
containing information previously omitted at the time of
effectiveness of the Registration Statement in reliance on
Rule 430A of the Rules and Regulations; (ii) not file any
amendment to the Registration Statement or supplement to the
Prospectus of which the Representative shall not previously
have been advised and furnished with a copy or to which the
Representative shall have reasonably objected in writing or
that is not in compliance with the Rules and Regulations; and
(iii) file on a timely basis all reports and any definitive
proxy or information statements required to be filed by the
Company with the Commission under the Exchange Act and the
Exchange Act Rules and Regulations subsequent to the date of
the Prospectus and prior to the termination of the offering of
the Shares by the Underwriters.
(b) The Company will not take, directly or indirectly, any action
designed to cause or result in, or that has constituted or
might reasonably be expected to constitute, the stabilization
or manipulation of the price of any securities of the Company.
(c) The Company will advise the Representative promptly (i) when
the Registration Statement or any post-effective amendment
thereto shall have become effective; (ii) of receipt of any
comments from the Commission relating to the Registration
Statement; (iii) of any request of the Commission for
amendment of the Registration Statement or for supplement to
the Prospectus or for any additional information relating
thereto; and (iv) of the issuance by the Commission of any
stop order suspending the effectiveness of the Registration
Statement or the use of the Prospectus or of the institution
of any proceedings for that purpose. The Company will use its
best efforts to prevent the issuance of any such stop order
preventing or suspending the use of the Prospectus and to
obtain as soon as possible the lifting thereof, if issued.
(d) The Company will cooperate with the Representative in
endeavoring to qualify the Shares for sale under the
securities laws of such jurisdictions as the Representative
may reasonably have designated in writing and will make such
applications, file such documents and furnish such information
as may be reasonably required for that purpose, provided the
Company shall not be required
16
to qualify as a foreign corporation or to file a general
consent to service of process in any jurisdiction where it is
not now so qualified or required to file such a consent. The
Company will, from time to time, prepare and file such
statements, reports and other documents as are or may be
required to continue such qualifications in effect for so long
a period as the Representative may reasonably request for
distribution of the Shares.
(e) The Company will deliver to, or upon the request of, the
Representative, as many copies of any Preliminary Prospectus
as the Representative may reasonably request. The Company will
deliver to, or upon the order of, the Representative during
the period when delivery of a Prospectus is required under the
Act as many copies of the Prospectus in final form, or as
thereafter amended or supplemented, as the Representative may
reasonably request. The Company will deliver to the
Representative at or before the Closing Date, four signed
copies of the Registration Statement and all amendments
thereto including all exhibits filed therewith, and will
deliver to the Representative such number of copies of the
Registration Statement (including such number of copies of the
exhibits filed therewith that may reasonably be requested),
and of all amendments thereto, as the Representative may
reasonably request.
(f) The Company will comply with the Act, the Rules and
Regulations, the Exchange Act and the Exchange Act Rules and
Regulations so as to permit the completion of the distribution
of the Shares as contemplated in this Agreement and the
Prospectus. If, during the period in which a prospectus is
required by law to be delivered by an Underwriter or dealer,
any event shall occur as a result of which, in the judgment of
the Company or in the reasonable opinion of the Underwriters,
it becomes necessary to amend or supplement the Prospectus in
order to make the statements therein, in the light of the
circumstances existing at the time the Prospectus is delivered
to a purchaser, not misleading, or, if it is necessary at any
time to amend or supplement the Prospectus to comply with any
law, the Company promptly will prepare and file with the
Commission an appropriate amendment to the Registration
Statement or supplement to the Prospectus so that the
Prospectus as so amended or supplemented will not, in the
light of the circumstances when it is so delivered, be
misleading, or so that the Prospectus will comply with the
law.
(g) The Company will make generally available to its
securityholders, as soon as it is practicable to do so, but in
any event not later than 15 months after the Effective Date,
an earnings statement (which need not be audited) in
reasonable detail, covering a period of at least 12
consecutive months beginning after the Effective Date, which
earnings statement shall satisfy the requirements of Section
11(a) of the Act and Rule 158 of the Rules and Regulations and
will advise you in writing when such statement has been so
made available.
(h) Prior to the Closing Date, the Company will furnish to the
Underwriters, as soon as they have been prepared by or are
available to the Company, a copy of any unaudited interim
financial statements of the Company for any period
17
subsequent to the period covered by the most recent financial
statements appearing in the Registration Statement and the
Prospectus.
(i) The Company will not offer, sell, contract to sell, pledge or
otherwise dispose of, directly or indirectly, or file with the
Commission a registration statement under the Act relating to,
any shares of Common Stock or securities convertible into or
exchangeable or exercisable for any shares of Common Stock or
derivative of Common Stock, or publicly disclose the intention
to make any such offer, sale, pledge, disposition or filing,
otherwise than hereunder or with the prior written consent of
the Representative, for a period of 90 days after the date of
this Agreement, except for (i) grants of employee stock
options or awards of Common Stock pursuant to the terms of a
plan in effect on the date of this Agreement, (ii) issuances
pursuant to the exercise of the Company's stock options or the
Company's employee stock purchase plan and (iii) the filing of
a Form S-8 registration statement relating to the registration
of shares of Common Stock pursuant to such plans.
(j) The Company shall use its best efforts to obtain approval for
additional shares of Common Stock (such that all of the Shares
shall be quoted on or approved for quotation on the Nasdaq
National Market or in lieu thereof the NYSE or another
national securities exchange), including the filing of a
Nasdaq Notification Form of Change in the Number of Shares
Outstanding with The Nasdaq Stock Market, Inc. within the
prescribed time period, and, provided the Common Stock
continues to be publicly held, to remain so listed for at
least five years from the Effective Date or for such shorter
period as may be specified in a written consent of the
Representative.
(k) The Company has caused each executive officer and director of
the Company to furnish to you, on or prior to the date of this
Agreement, a letter or letters, in form and substance
satisfactory to the Representative, pursuant to which each
such person shall agree not to, directly or indirectly, (i)
offer, pledge (except for pledges granted prior to the date of
this Agreement), sell, offer to sell, contract to sell, sell
any option or contract to purchase, purchase any option or
contract to sell, grant any option, right or warrant to
purchase, lend (other than pursuant to a standard
hypothecation agreement with a broker-dealer) or otherwise
transfer or dispose of, or announce the offering of, any
shares of Common Stock or any securities convertible into, or
exercisable or exchangeable for, Common Stock (other than
approximately __________ shares of Common Stock with respect
to which one of the directors of the Company shares voting and
investment power) or (ii) enter into any swap or other
agreement that transfers, in whole or in part, any economic
equivalent of ownership of shares of Common Stock or
securities convertible into, or exercisable for, shares of
Common Stock (other than the exercise of options to purchase
shares of Common Stock) (whether any such transaction
described in clause (i) or (ii) above is to be settled by
delivery of shares of Common Stock, in cash or otherwise), in
each case, beneficially owned (within the meaning of Rule
13d-3 of the Exchange Act Rules and Regulations) on the date
of this Agreement or thereafter acquired, for a period
beginning on the
18
date of this Agreement and continuing to and including the
date that is 90 days after the date of the Prospectus or, in
the event of termination or cancellation of this Agreement for
any reason prior to the sale of the Common Stock pursuant
hereto, such date of termination or cancellation, except with
the prior written consent of the Representative ("Lockup
Agreements").
(l) The Company shall apply the net proceeds of the sale of the
Shares as described under the heading "Use of Proceeds" in the
Prospectus.
(m) The Company shall not invest, or otherwise use the proceeds
received by the Company from the sale of the Shares, in such a
manner as would require the Company or any of the Subsidiaries
to register as an investment company under the Investment
Company Act.
(n) Provided the Company continues to be publicly held, the
Company will maintain a transfer agent and, if necessary under
the jurisdiction of incorporation of the Company, a registrar
for the Common Stock.
(o) Except as contemplated by the Prospectus or 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, the Company's Employee Stock
Purchase Plan or the Company's Directors Deferred Fee and
Stock Plan, the Company shall not, for a period of 180 days
after the date hereof, without the prior written consent of
the Representative, purchase, redeem or call for redemption,
or prepay or give notice of prepayment (or announce any
redemption or call for redemption, or any repayment or notice
of prepayment) of any of the Company's securities.
(p) Prior to the Closing Date (and, if applicable, the Option
Closing Date), the Company will not issue any press release or
other communication directly or indirectly or hold any press
conference with respect to the Company, any of the
Subsidiaries or the offering of the Shares without your prior
written consent.
(q) The Company and the Subsidiaries shall use their best efforts
to conduct their businesses in material compliance with all
applicable Federal and state laws, rules, regulations,
decisions, directives and orders (including, without
limitation, the applicable provisions of the Act, the Rules
and Regulations, the Exchange Act, the Exchange Act Rules and
Regulations, the Investment Company Act, the Investment
Advisers Act, the BHC Act, the National Bank Act, the Federal
Deposit Insurance Corporation Improvement Act, the Illinois
General Corporation Act, the Illinois banking laws and all
decisions, directives and orders of the FDIC, the OCC, the
Illinois Banking Commissioner, the Illinois Banking Board, the
Board of Governors of the Federal Reserve System, the
Commission, the NASD and the NYSE, CHX and AMEX, as
applicable).
(r) The Company and its Subsidiaries will maintain such controls
and other procedures, including without limitation, those
required by Sections 302 and 906
19
of the Xxxxxxxx-Xxxxx Act and the applicable regulations
thereunder, that are designed to ensure that information
required to be disclosed by the Company in the reports that it
files or submits under the Exchange Act is recorded,
processed, summarized and reported within the time periods
specified in the Commission's rules and forms, including,
without limitation, controls and procedures designed to ensure
that information required to be disclosed by the Company in
the reports that it files or submits under the Exchange Act is
accumulated and communicated to the Company's management,
including its Chief Executive Officer or officers and
Principal Financial Officer or officers, or persons performing
similar functions, as appropriate, to allow timely decisions
regarding required disclosure and to ensure that material
information relating to the Company, including its
Subsidiaries, is made known to them by others within those
entities, particularly during the period in which such
periodic reports are being prepared.
(s) The Company and its Subsidiaries will comply with all
effective applicable provisions of the Xxxxxxxx-Xxxxx Act.
5. COSTS AND EXPENSES.
------------------
The Company will pay all costs, expenses and fees incident to the
performance of the obligations of the Company under this Agreement, including,
without limiting the generality of the foregoing, the following: accounting fees
of the Company; the fees and disbursements of counsel for the Company; the cost
of printing and delivering to, or as requested by, the Underwriters copies of
the Registration Statement, Preliminary Prospectuses, the Prospectus, the Blue
Sky Survey and any supplements or amendments thereto; the filing fees of the
Commission; the filing fees and expenses (including legal fees and
disbursements) incident to securing any required review by the NASD of the terms
of the sale of the Shares; any listing fee of The Nasdaq Stock Market; and the
expenses, including the fees and disbursements of counsel for the Underwriters,
incurred in connection with the qualification of the Shares under state
securities or Blue Sky laws; provided, however, that, subject to the following
paragraph, the Company shall only be responsible for fees and disbursements of
counsel for the Underwriters up to an aggregate maximum of $5,000.
The Company shall not, however, be required to pay for any of the
Underwriters' expenses (other than those related to qualification under NASD
regulation and state securities or Blue Sky laws) except that, if this Agreement
shall not be consummated because the conditions in Section 6 hereof are not
satisfied, or because this Agreement is terminated by the Representative
pursuant to Section 11 hereof, or by reason of any failure, refusal or inability
on the part of the Company to perform any undertaking or satisfy any condition
of this Agreement or to comply with any of the terms hereof on its part to be
performed, unless such failure to satisfy said condition or to comply with said
terms shall be due to the default or omission of any Underwriter, then the
Company shall reimburse the several Underwriters for reasonable out-of-pocket
expenses, including all fees and disbursements of counsel, reasonably incurred
in connection with investigating, marketing and proposing to market the Shares
or in contemplation of performing their obligations hereunder; but the Company
shall not in any event be liable to any of the several Underwriters for damages
on account of loss of anticipated profits from the sale by them of the Shares.
20
6. CONDITIONS OF OBLIGATIONS OF THE UNDERWRITERS.
---------------------------------------------
The several obligations of the Underwriters to purchase the Firm Shares
on the Closing Date and the Option Shares, if any, on the Option Closing Date
are subject to the accuracy, as of the Closing Date and the Option Closing Date,
if any, of the representations and warranties of the Company contained herein,
and to the performance by the Company of its covenants and obligations hereunder
and to the following additional conditions.
(a) The Registration Statement and all post-effective amendments
thereto shall have become effective and any and all filings
required by Rule 424 and Rule 430A of the Rules and
Regulations shall have been made, and any request of the
Commission for additional information (to be included in the
Registration Statement or otherwise) shall have been disclosed
to the Representative and complied with to its reasonable
satisfaction. No stop order suspending the effectiveness of
the Registration Statement, as amended from time to time,
shall have been issued and no proceedings for that purpose
shall have been taken or, to the knowledge of the Company,
shall be contemplated by the Commission and no injunction,
restraining order or order of any nature by a Federal or state
court of competent jurisdiction shall have been issued as of
the Closing Date that would prevent the issuance of the
Shares.
(b) The Representative shall have received on the Closing Date and
the Option Closing Date, if any, the opinion of Vedder, Price,
Xxxxxxx & Kammholz, counsel for the Company, each dated the
Closing Date or the Option Closing Date, if any, addressed to
the Underwriters to the effect that:
(i) The Company is validly existing and in good standing
under the laws of the State of Illinois, and is duly
registered as a financial holding company under the
BHC Act. Each of the Subsidiaries is validly existing
and in good standing under the laws of its
jurisdiction of incorporation or organization (as the
case may be). Each of the Company and the
Subsidiaries has full corporate power, or power under
its organizational documents, and authority to own or
lease its properties and to conduct its business as
currently being carried on in all material respects
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, except where the failure to
so qualify would not have a Material Adverse Effect.
(ii) The capital stock of the Company conforms as to legal
matters to the description thereof contained in or
incorporated by reference into the Prospectus. All of
the issued and outstanding shares of capital stock of
the Company have been duly authorized and validly
issued and are fully paid and nonassessable. The
Shares to be issued and sold by the Company hereunder
have been duly authorized and, when issued, delivered
and paid for in accordance with the terms of this
Agreement, will have been validly
21
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, to the best of such counsel's
knowledge, any agreement or other instrument to which
the Company is a party or by which the Company is
bound. To the best of such counsel's knowledge,
neither the filing of the Registration Statement nor
the offering or sale of the Securities as
contemplated by this Agreement gives rise to any
rights for or relating to the registration of any
shares of Common Stock or other securities of the
Company.
(iii) To the best of such counsel's knowledge, all
outstanding shares of capital stock of or other
equity interests in the Subsidiaries have been duly
and validly authorized and issued and are fully paid
and nonassessable (except to the extent such shares
or interests may be deemed assessable under 12 U.S.C.
Xxxxxxx 00 xx 00 X.X.X. 0000x) and, to the best of
such counsel's knowledge, except as otherwise
described in the Registration Statement and the
Prospectus and except for directors' qualifying
shares, the Company owns of record and beneficially,
free and clear of any security interests, liens or
other encumbrances, all of the issued and outstanding
shares of such stock or interests. To the best of
such counsel's knowledge, except as outstanding under
the Company's 1997 Stock Incentive Plan, as amended,
its Employee Stock Purchase Plan or its Director
Deferred Fee and Stock Plan or otherwise described in
the Registration Statement and the Prospectus, there
are no options, warrants or other rights in existence
to purchase or acquire from the Company or any
Subsidiary any shares of the capital stock of or
other equity interests in the Company or any of the
Subsidiaries.
(iv) The Registration Statement has become effective under
the Act and, to the best of such counsel's knowledge,
no stop order suspending the effectiveness of the
Registration Statement has been issued and no
proceeding for that purpose has been instituted or,
to the knowledge of such counsel, threatened by the
Commission.
(v) The descriptions in the Registration Statement and
the Prospectus of statutes, regulations and legal and
governmental proceedings under the captions "Price
Range of Common Stock and Dividend Policy--Common
Stock Dividend Policy" in the Prospectus and
"Business--Supervision and Regulation,-- " "Bank
Holding Company Regulation," "--Bank Regulation,"
"--Financial Institution Regulation Generally" and
"--Broker-Dealer and Investment Adviser Regulation"
in the Company's Annual Report on Form 10-K for the
year ended December 31, 2002, insofar as such
descriptions constitute a summary of legal and
regulatory matters are accurate in all material
respects and fairly present the
22
information required to be shown; and such counsel
does not know of any statutes, regulations or legal
or governmental proceedings required to be described
in the Prospectus that are not described as required.
(vi) The Company has full corporate power and authority to
enter into this Agreement, and this Agreement has
been duly authorized, executed and delivered by the
Company; the execution, delivery and performance of
this Agreement and the consummation of the
transactions herein contemplated will not result in
(A) a breach or violation of any of the terms and
provisions of, or constitute a default under, the
Company's Charter or By-laws or (B) a material breach
or violation of any of term and provisions of, or
constitute a material 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, or any order or decree known to such counsel
of any court or governmental agency or body having
jurisdiction over the Company or any Subsidiary or
any of their respective properties; and no consent,
approval, authorization or order of, or filing with,
any court or governmental agency or body is required
for the execution, delivery and performance of this
Agreement or for the consummation of the transactions
contemplated hereby, including the issuance or sale
of the Shares by the Company, except such as may be
required under the Act or state securities laws or
Blue Sky laws or interpretations or rules of the NASD
in connection with the purchase and distribution of
the Shares by the Underwriters.
(vii) The Registration Statement and the Prospectus
(including any documents incorporated by reference
into the Prospectus, at the time they were filed)
comply or complied in all material respects as to
form with the applicable requirements of the Act, the
Rules and Regulations, the Exchange Act and the
Exchange Act Rules and Regulations (except that such
counsel need not express an opinion as to financial
statements and related schedules or financial data
contained in the Registration Statement or the
Prospectus or incorporated by reference therein). The
conditions for the use of Form S-3, set forth in the
General Instructions thereto, have been satisfied.
(viii) Such counsel does not know of any contracts or
documents required to be filed as exhibits to the
Registration Statement or described in the
Registration Statement or the Prospectus that are not
so filed or described as required.
(ix) Such counsel knows of no material legal or
governmental proceedings pending or threatened
against the Company or any of the Subsidiaries except
as set forth in the Prospectus.
23
(x) The Company is not, and will not become, as a result
of the consummation of the transactions contemplated
by this Agreement, and application of the net
proceeds therefrom as described in the Prospectus,
required to register as an investment company under
the Investment Company Act.
In rendering such opinion, Vedder, Price, Xxxxxxx & Kammholz may rely
as to matters of fact to the extent such counsel deems appropriate upon
appropriate certificates of officers of the Company and the Subsidiaries. In
addition to the matters set forth above, such opinion shall also include a
statement to the effect that nothing has come to the attention of such counsel
that leads them to believe that (i) the Registration Statement, at the time it
became effective under the Act (but after giving effect to any modifications
incorporated therein pursuant to Rule 430A under the Act) and as of the Closing
Date or the Option Closing Date, if any, contained an untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading and (ii) the
Prospectus, or any supplement thereto, on the date it was filed pursuant to the
Rules and Regulations and as of the Closing Date or the Option Closing Date, if
any, contained an untrue statement of a material fact or omitted to state a
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they are made, not misleading (except that such
counsel need express no view as to financial statements and related schedules
therein). With respect to such statement, Vedder, Price, Xxxxxxx & Kammholz may
state that their belief is based upon the procedures set forth therein, but is
without independent check and verification.
(c) The Representative shall have received from Xxxxx Day counsel
for the Underwriters, an opinion dated the Closing Date and
the Option Closing Date, if any, with respect to the validity
of the Shares and other related matters as the Representative
reasonably may request, and such counsel shall have received
such papers and information as they request to enable them to
pass upon such matters.
(d) The Representative shall have received at or prior to the
Closing Date from Xxxxx Day a memorandum or summary, in form
and substance satisfactory to the Representative, with respect
to the qualification for offering and sale by the Underwriters
of the Shares under the state securities or Blue Sky laws of
such jurisdictions as the Representative may reasonably have
designated to the Company.
(e) The Representative shall have received, on each of the dates
hereof, the Closing Date and the Option Closing Date, if any,
a letter dated the date hereof, the Closing Date or the Option
Closing Date, if any, in form and substance reasonably
satisfactory to the Representative, of Ernst & Young LLP
confirming that they are independent public accountants within
the meaning of the Act and the applicable published Rules and
Regulations thereunder and stating that in their opinion the
financial statements and schedules examined by them and
included in the Registration Statement comply as to form in
all material respects with the applicable accounting
requirements of the Act and the related published Rules and
Regulations; and containing such other statements and
information as is ordinarily included in accountants' "comfort
letters" to Underwriters with respect to the
24
financial statements and certain financial and statistical
information contained in the Registration Statement and the
Prospectus.
(f) The Representative shall have received on the Closing Date and
the Option Closing Date, if any, a certificate or certificates
of the Company's Chief Executive Officer and Chief Financial
Officer to the effect that, as of the Closing Date or the
Option Closing Date, if any, each of them severally represents
as follows:
(i) the Registration Statement has become effective under
the Act and no stop order suspending the
effectiveness of the Registrations Statement has been
issued, and no proceedings for such purpose have been
taken or are, to his knowledge, contemplated by the
Commission;
(ii) the representations and warranties of the Company
contained in Section 1 hereof are true and correct as
of the Closing Date or the Option Closing Date, if
any;
(iii) all filings required to have been made pursuant to
Rules 424 or 430A under the Act have been made;
(iv) such officer has carefully examined the Registration
Statement and the Prospectus and, in their opinion,
as of the effective date of the Registration
Statement, the statements contained in the
Registration Statement were true and correct, and
such Registration Statement and Prospectus did not
omit to state a material fact required to be stated
therein or necessary in order to make the statements
therein not misleading, and since the effective date
of the Registration Statement, no event has occurred
that should have been set forth in a supplement to or
an amendment of the Prospectus that has not been so
set forth in such supplement or amendment; and
(v) since the respective dates as of which information is
given in the Registration Statement and the
Prospectus, there has not been any material adverse
change or any development involving a prospective
change, which has had or is reasonably likely to have
a Material Adverse Effect, whether or not arising in
the ordinary course of business.
(g) The Company shall have furnished to the Representative such
further certificates and documents confirming the
representations and warranties, covenants and conditions
contained herein and related matters as the Representative may
reasonably have requested.
(h) The Lockup Agreements shall have been furnished to the
Representative.
(i) The Firm Shares and Option Shares, if any, shall have been
approved for quotation upon notice of issuance on the Nasdaq
National Market.
25
If any of the conditions hereinabove provided for in this Section shall
not have been fulfilled when and as required by this Agreement to be fulfilled,
the obligations of the Underwriters hereunder may be terminated by the
Representative by notifying the Company of such termination in writing on or
prior to the Closing Date or the Option Closing Date, if any.
In such event, the Company and the Underwriters shall not be under any
obligation to each other (except to the extent provided in Sections 5, 11 and 14
hereof).
7. CONDITIONS OF THE OBLIGATIONS OF THE COMPANY.
--------------------------------------------
The obligations of the Company to sell and deliver the Shares required
to be delivered as and when specified in this Agreement are subject to the
conditions that at the Closing Date or the Option Closing Date, if any, no stop
order suspending the effectiveness of the Registration Statement shall have been
issued and in effect or proceedings therefor initiated or threatened.
8. INDEMNIFICATION.
---------------
(a) The Company agrees:
(i) to indemnify and hold harmless each Underwriter and
each person, if any, who controls any Underwriter
within the meaning of the Act, against any losses,
claims, damages or liabilities to which such
Underwriter or any such controlling person may become
subject under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions or
proceedings in respect thereof) arise out of or are
based upon (i) any untrue statement or alleged untrue
statement of any material fact contained in the
Registration Statement, any Preliminary Prospectus,
the Prospectus or any amendment or supplement
thereto, (ii) the omission or alleged omission to
state therein a material fact required to be stated
therein or necessary to make the statements therein
not misleading any act or failure to act or (iii) any
alleged act or failure to act by any Underwriter in
connection with, or relating in any manner to, the
Shares or the offering contemplated hereby, and that
is included as part of any loss, claim, damage,
liability or action arising out of or based upon
matters covered by clause (i) or (ii) above
(provided, however, that the Company shall not be
liable under this clause (iii) to the extent that it
is determined in a final judgment by a court of
competent jurisdiction that such loss, claim, damage,
liability or action resulted directly from any such
acts or failures to act undertaken or omitted to be
taken by such Underwriter through its gross
negligence or willful misconduct); provided, however,
that the Company will not be liable in any such case
to the extent that any such loss, claim, damage or
liability arises out of or is based upon an untrue
statement or alleged untrue statement, or omission or
alleged omission made in the Registration Statement,
any Preliminary Prospectus, the Prospectus or such
amendment or supplement in reliance upon and in
conformity with written information furnished to the
Company by or
26
through the Representative specifically for use in
the preparation thereof; and provided, further, that
with respect to any Preliminary Prospectus, the
foregoing indemnity agreement shall not inure to the
benefit of any Underwriter from whom the person
asserting any loss, claim, damage or liability
purchased Shares, or any person controlling such
Underwriter, if copies of the Prospectus were timely
delivered to the Representative pursuant to Section 3
and a copy of the Prospectus (as then amended or
supplemented if the Company shall have furnished any
amendments or supplements thereto) was not sent or
given by or on behalf of such Underwriter to such
person, if required by law so to have been delivered
and if the Prospectus (as so amended or supplemented)
would have cured the defect giving rise to such loss,
claim, damage or liability; and
(ii) to reimburse each Underwriter and each such
controlling person upon demand for any legal or other
out-of-pocket expenses reasonably incurred by such
Underwriter or such controlling person in connection
with investigating or defending any such loss, claim,
damage or liability, action or proceeding or in
responding to a subpoena or governmental inquiry
related to the offering of the Shares, whether or not
such Underwriter or controlling person is a party to
any action or proceeding. In the event that it is
finally judicially determined that the Underwriters
were not entitled to receive payments for legal and
other expenses pursuant to this subparagraph, the
Underwriters will promptly return all sums that had
been advanced pursuant hereto.
(b) Each Underwriter severally and not jointly will indemnify and
hold harmless the Company, each of its directors, each of its
officers who have signed the Registration Statement and each
person, if any, who controls the Company within the meaning of
the Act, against any losses, claims, damages or liabilities to
which the Company or any such director, officer or controlling
person may become subject under the Act or otherwise, insofar
as such losses, claims, damages or liabilities (or actions or
proceedings in respect thereof) arise out of or are based upon
(i) any untrue statement or alleged untrue statement of any
material fact contained in the Registration Statement, any
Preliminary Prospectus, the Prospectus or any amendment or
supplement thereto or (ii) the omission or the alleged
omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not
misleading in the light of the circumstances under which they
were made; and will reimburse any legal or other expenses
reasonably incurred by the Company or any such director,
officer or controlling person in connection with investigating
or defending any such loss, claim, damage, liability, action
or proceeding; provided, however, that each Underwriter will
be liable in each case to the extent, but only to the extent,
that such untrue statement or alleged untrue statement or
omission or alleged omission has been made in the Registration
Statement, any Preliminary Prospectus, the Prospectus or such
amendment or supplement, in reliance upon and in conformity
with written information furnished to the Company by or
through the Representative specifically for use in the
preparation thereof.
27
(c) In case any proceeding (including any governmental
investigation) shall be instituted involving any person in
respect of which indemnity may be sought pursuant to this
Section, such person (the "indemnified party") shall promptly
notify the person against whom such indemnity may be sought
(the "indemnifying party") in writing. No indemnification
provided for in Section 8(a) or (b) shall be available to any
party who shall fail to give notice as provided in this
Section 8(c) if the party to whom notice was not given was
unaware of the proceeding to which such notice would have
related and was materially prejudiced by the failure to give
such notice, but the failure to give such notice shall not
relieve the indemnifying party or parties from any liability
which it or they may have to the indemnified party for
contribution or otherwise than on account of the provisions of
Section 8(a) or (b). In case any such proceeding shall be
brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the
indemnifying party shall be entitled to participate therein
and, to the extent that it shall wish, jointly with any other
indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party
and shall pay as incurred the fees and disbursements of such
counsel related to such proceeding. In any such proceeding,
any indemnified party shall have the right to retain its own
counsel at its own expense. Notwithstanding the foregoing, the
indemnifying party shall pay as incurred (or within 30 days of
presentation) the fees and expenses of the counsel retained by
the indemnified party in the event (i) the indemnifying party
and the indemnified party shall have mutually agreed to the
retention of such counsel, (ii) the named parties to any such
proceeding (including any impleaded parties) include both the
indemnifying party and the indemnified party and
representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests
between them or (iii) the indemnifying party shall have failed
to assume the defense and employ counsel acceptable to the
indemnified party within a reasonable period of time after
notice of commencement of the action.
It is understood that the indemnifying party shall not, in connection
with any proceeding or related proceedings in the same jurisdiction, be liable
for the reasonable fees and expenses of more than one separate firm for all such
indemnified parties. Such firm shall be designated in writing by you in the case
of parties indemnified pursuant to Section 8(a) and by the Company in the case
of parties indemnified pursuant to Section 8(b). The indemnifying party shall
not be liable for any settlement of any proceeding effected without its written
consent but if settled with such consent or if there be a final judgment for the
plaintiff, the indemnifying party agrees to indemnify the indemnified party from
and against any loss or liability by reason of such settlement or judgment. In
addition, the indemnifying party will not, without the prior written consent of
the indemnified party, settle or compromise or consent to the entry of any
judgment in any pending or threatened claim, action or proceeding of which
indemnification may be sought hereunder (whether or not any indemnified party is
an actual or potential party to such claim, action or proceeding) unless such
settlement, compromise or consent includes an unconditional release of each
indemnified party from all liability arising out of such claim, action or
proceeding.
28
(d) If the indemnification provided for in this Section is
unavailable to or insufficient to hold harmless an indemnified
party under Section 8(a) or (b) above in respect of any
losses, claims, damages or liabilities (or actions or
proceedings in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of such losses,
claims, damages or liabilities (or actions or proceedings in
respect thereof) in such proportion as is appropriate to
reflect the relative benefits received by the Company on the
one hand and the Underwriters on the other from the offering
of the Shares. If, however, the allocation provided by the
immediately preceding sentence is not permitted by applicable
law then each indemnifying party shall contribute to such
amount paid or payable by such indemnified party in such
proportion as is appropriate to reflect not only such relative
benefits but also the relative fault of the Company on the one
hand and the Underwriters on the other in connection with the
statements or omissions which resulted in such losses, claims,
damages or liabilities (or actions or proceedings in respect
thereof), as well as any other relevant equitable
considerations. The relative benefits received by the Company
on the one hand and the Underwriters on the other shall be
deemed to be in the same proportion as the total net proceeds
from the offering (before deducting expenses) received by the
Company bear to the total underwriting discounts and
commissions received by the Underwriters, in each case as set
forth in the table on the cover page of the Prospectus. The
relative fault shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to
state a material fact relates to information supplied by the
Company on the one hand or the Underwriters on the other and
the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or
omission.
The Company and the Underwriters agree that it would not be just and
equitable if contributions pursuant to this Section 8(d) were determined by pro
rata allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation that does not take account of the
equitable considerations referred to above in this Section 8(d). The amount paid
or payable by an indemnified party as a result of the losses, claims, damages or
liabilities (or actions or proceedings in respect thereof) referred to above in
this Section 8(d) shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim. Notwithstanding the provisions of this
Subsection, (i) no Underwriter shall be required to contribute any amount in
excess of the underwriting discounts and commissions applicable to the Shares
purchased by such Underwriter and (ii) no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations in this Section 8(d) to
contribute are several in proportion to their respective underwriting
obligations and not joint.
(e) In any proceeding relating to the Registration Statement, any
Preliminary Prospectus, the Prospectus or any supplement or
amendment thereto, each party against whom contribution may be
sought under this Section hereby consents to the jurisdiction
of any court having jurisdiction over any other contributing
party,
29
agrees that process issuing from such court may be served upon
him or it by any other contributing party and consents to the
service of such process and agrees that any other contributing
party may join him or it as an additional defendant in any
such proceeding in which such other contributing party is a
party.
(f) Any losses, claims, damages, liabilities or expenses for which
an indemnified party is entitled to indemnification or
contribution under this Section shall be paid by the
indemnifying party to the indemnified party as such losses,
claims, damages, liabilities or expenses are incurred. The
indemnity and contribution agreements contained in this
Section and the representations and warranties of the Company
set forth in this Agreement shall remain operative and in full
force and effect, regardless of (i) any investigation made by
or on behalf of any Underwriter or any person controlling any
Underwriter, the Company, its directors or officers or any
persons controlling the Company, (ii) acceptance of any Shares
and payment therefor hereunder and (iii) any termination of
this Agreement. A successor to any Underwriter, or to the
Company, its directors or officers or any person controlling
the Company, shall be entitled to the benefits of the
indemnity, contribution and reimbursement agreements contained
in this Section.
9. DEFAULT BY UNDERWRITERS.
-----------------------
If on the Closing Date or the Option Closing Date, if any, any
Underwriter shall fail to purchase and pay for the portion of the Shares that
such Underwriter has agreed to purchase and pay for on such date (otherwise than
by reason of any default on the part of the Company), you, as the Representative
of the Underwriters, shall use your reasonable efforts to procure within 36
hours thereafter one or more of the other Underwriters, or any others, to
purchase from the Company such amounts as may be agreed upon and upon the terms
set forth herein, the Firm Shares or Option Shares, as the case may be, that the
defaulting Underwriter or Underwriters failed to purchase. If during such 36
hours you, as such Representative, shall not have procured such other
Underwriters, or any others, to purchase the Firm Shares or Option Shares, as
the case may be, agreed to be purchased by the defaulting Underwriter or
Underwriters, then (a) if the aggregate number of shares with respect to which
such default shall occur does not exceed 10% of the Firm Shares or Option
Shares, as the case may be, covered hereby, the other Underwriters shall be
obligated, severally, in proportion to the respective numbers of Firm Shares or
Option Shares, as the case may be, that they are obligated to purchase
hereunder, to purchase the Firm Shares or Option Shares, as the case may be,
that such defaulting Underwriter or Underwriters failed to purchase or (b) if
the aggregate number of shares of Firm Shares or Option Shares, as the case may
be, with respect to which such default shall occur exceeds 10% of the Firm
Shares or Option Shares, as the case may be, covered hereby, the Company or you
as the Representative of the Underwriters will have the right, by written notice
given within the next 36-hour period to the parties to this Agreement, to
terminate this Agreement without liability on the part of the non-defaulting
Underwriters or of the Company except to the extent provided in Section 8
hereof. In the event of a default by any Underwriter or Underwriters, as set
forth in this Section, the Closing Date or Option Closing Date, if any, may be
postponed for such period, not exceeding seven days, as you, as Representative,
may determine in order that the required changes in the Registration Statement
30
or in the Prospectus or in any other documents or arrangements may be effected.
The term "Underwriter" includes any person substituted for a defaulting
Underwriter. Any action taken under this Section shall not relieve any
defaulting Underwriter from liability in respect of any default of such
Underwriter under this Agreement.
10. NOTICES.
-------
All communications hereunder shall be in writing and, except as
otherwise provided herein, will be mailed, delivered or faxed and confirmed as
follows:
if to the Underwriters, to: RBC Xxxx Xxxxxxxx Inc.
c/o RBC Capital Markets
00 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000
Attention: ____________________
____________________
Fax: ____________________
if to the Company, to: Wintrust Financial Corporation
000 Xxxxx Xxxx Xxxx
Xxxx Xxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx
Chief Executive Officer
Fax: (000) 000-0000
11. TERMINATION.
-----------
(a) This Agreement may be terminated by you by notice to the
Company at any time prior to the Closing Date if any of the
following has occurred: (i) since the respective dates as of
which information is given in the Registration Statement and
the Prospectus, any material adverse change or any development
involving a prospective change, which has had or is reasonably
likely to have a Material Adverse Effect; (ii) any material
adverse change in the financial markets in the United States
or in the international financial markets, any outbreak or
escalation of hostilities or declaration of war or national
emergency or other national or international calamity or
crisis or any change or development involving a prospective
change in national or international political, financial or
economic conditions, in each case the effect of which is such
as to make it, in the reasonable judgment of the
Representative, impracticable or inadvisable to market the
Shares or to enforce contracts for the sale of the Shares;
(iii) the suspension or material limitation of trading in
securities generally on the NYSE or The Nasdaq Stock Market or
limitation on prices (other than limitations on hours or
numbers of days of trading) for securities on any such
exchange or market or a material disruption has occurred in
commercial banking or securities settlement or clearance
services in the United States; (iv) declaration of a banking
moratorium by United States or New York or Illinois State
authorities; (v) the suspension or material limitation of
31
trading of the Common Stock by The Nasdaq Stock Market, the
Commission or any other governmental authority; or (vi) the
taking of any action by any governmental body or agency in
respect of its monetary or fiscal affairs that in your
reasonable opinion has a material adverse effect on the
securities markets in the United States; or
(b) as provided in Sections 6 and 9 of this Agreement.
12. SUCCESSORS.
----------
This Agreement has been and is made solely for the benefit of the
Company and the Underwriters and their respective successors, executors,
administrators, heirs and assigns, and the officers, directors and controlling
persons referred to herein, and no other person will have any right or
obligation hereunder. No purchaser of any of the Shares from any Underwriter
shall be deemed a successor or assign merely because of such purchase.
13. INFORMATION PROVIDED BY UNDERWRITERS.
------------------------------------
The Company and the Underwriters acknowledge and agree that the only
information furnished or to be furnished by any Underwriter to the Company for
inclusion in any Prospectus or the Registration Statement consists of the
information set forth in the table following the first paragraph and the
statements set forth in the [THIRD, SIXTH, SEVENTH AND ELEVENTH] paragraphs
under the caption "Underwriting" in the Prospectus.
14. MISCELLANEOUS.
-------------
The reimbursement, indemnification and contribution agreements
contained in this Agreement and the representations, warranties and covenants in
this Agreement shall remain in full force and effect regardless of (a) any
termination of this Agreement; (b) any investigation made by or on behalf of any
Underwriter or controlling person thereof, or by or on behalf of the Company or
its directors or officers; and (c) delivery of and payment for the Shares under
this Agreement.
This Agreement may be executed in counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the same
instrument.
This Agreement shall be governed by, and construed in accordance with,
the laws of the State of New York.
This Agreement constitutes the entire agreement of the parties to this
Agreement and supersedes all prior written or oral and all contemporaneous oral
agreements, understandings and negotiations with respect to the subject matter
hereof.
This Agreement may only be amended or modified in writing, signed by
all of the parties hereto, and no condition herein (express or implied) may be
waived unless waived in writing by each party whom the condition is meant to
benefit.
[remainder of page intentionally blank]
32
If the foregoing letter is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicates hereof,
whereupon it will become a binding agreement among the Company and the several
Underwriters in accordance with its terms.
Very truly yours,
WINTRUST FINANCIAL CORPORATION
By
---------------------------------------
Xxxxxx X. Xxxxxx
Chief Executive Officer
The foregoing Underwriting Agreement is hereby confirmed and accepted as of the
date first above written.
RBC XXXX XXXXXXXX INC.
As the Representative of the several
Underwriters listed on Schedule I hereto
By: RBC Xxxx Xxxxxxxx Inc.
By:
-----------------------------------
Name:
Title:
S-1
SCHEDULE I
SCHEDULE OF UNDERWRITERS
Number of
Firm Shares
Underwriter to be Purchased
----------- ---------------
RBC Xxxx Xxxxxxxx Inc.
[XXXXXX, XXXXXXX & COMPANY, INCORPORATED]
[U.S. BANCORP XXXXX XXXXXXX INC.]
[XXXXXXX XXXXX & ASSOCIATES, INC.]
______________________________
______________________________
--------------------
--------------------
TOTAL
====================
EXHIBIT A
LIST OF SIGNIFICANT SUBSIDIARIES(2)
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
[XXXXXXXX CAPITAL CORPORATION]
First Insurance Funding Corporation
Tricom, Inc. of Milwaukee
Xxxxx Xxxxxx Trust Company, N.A.
[WINTRUST CAPITAL TRUST I]
[WINTRUST CAPITAL TRUST II]
[WINTRUST INFORMATION TECHNOLOGY SERVICES]
Xxxxx Xxxxxx Investments, LLC
Xxxxx Xxxxxx Asset Management Company
Focused Investments, LLC
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2 To be updated with additional changes since the Company filed its Form
10-K for the fiscal year ended December 31, 2002.
