EXHIBIT 1.1
EXECUTION COPY
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1,200,000 Shares[1]
Wintrust Financial Corporation
Common Stock
(Without Par Value)
EQUITY UNDERWRITING AGREEMENT
December 14, 2004
RBC Capital Markets Corporation
As the Representative of the several
Underwriters named in Schedule I hereto
c/o RBC Capital Markets
One Liberty Plaza, 165 Broadway
New York, NY 10006-1404
Ladies and Gentlemen:
Wintrust Financial Corporation, an Illinois corporation (the
"Company"), and Royal Bank of Canada (the "Forward Seller"), at the request of
the Company and in connection with the Forward Agreement (as defined below)
relating to the forward sale by the Company of a number of shares of 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), of the Company equal to the number of shares of
Common Stock to be borrowed and sold by the Forward Seller, confirm their
respective agreements with the Representative (as defined below) and each of the
other Underwriters named in Schedule I attached hereto and made a part hereof
(collectively, the "Underwriters"), with respect to the sale by the Forward
Seller, acting at the Company's request, and the purchase by the Underwriters,
acting severally and not jointly, of their respective portions of 1,200,000
shares of Common Stock to be borrowed in the market (subject to reduction for
any shares issued and sold by the Company pursuant to Section 13(a) hereof, the
"Borrowed Shares"), and up to 180,000 additional shares of Common Stock (subject
to reduction for any shares issued and sold by the Company pursuant to Section
13(a) hereof, the "Option Shares"), as set forth below. The Borrowed Shares and
the Option Shares (to the extent the aforementioned option is exercised) are
herein collectively called the "Shares." For purposes of this Agreement, the
term "Forward Agreement" shall refer to the letter agreement in the form
attached hereto as Exhibit A, which relates to the forward sale by the Company
of the Borrowed Shares and the Option Shares, dated the date hereof and entered
into by and between the Company and the Forward Seller.
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[1] Plus an option to purchase up to 180,000 additional shares to cover
over-allotments.
RBC Capital Markets Corporation has agreed to act as representative of
the several Underwriters (in such capacity, the "Representative") in connection
with the offering and sale of the Shares.
As the Representative, you have advised the Company and the Forward
Seller 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 Borrowed 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.
In consideration of the mutual agreements contained herein and of the
interests of the parties in the transactions contemplated hereby, the parties
hereto agree as follows:
1. Representations And Warranties Of The Company.
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The Company represents and warrants to each of the Underwriters as
follows:
(a) A registration statement on Form S-3, as amended (File No.
333-119345), with respect to the Shares has been prepared by
the Company in conformity with the requirements of the
Securities Act of 1933 (the "Act") and the rules and
regulations (the "Rules and Regulations") of the Securities
and Exchange Commission (the "Commission") thereunder and has
been filed with the Commission. The Company has complied with
the conditions for the use of Form S-3. Copies of such
registration statement, including any amendments thereto, the
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. Such
registration statement, together with any registration
statement filed by the Company pursuant to Rule 462(b) of the
Act, herein referred to as the "Registration Statement," has
become effective under the Act and no post-effective amendment
to the Registration Statement has been filed as of the date of
this Agreement. The Company will file with the Commission a
prospectus supplement (the "Prospectus Supplement") relating
to the Shares pursuant to Rule 424 or Rule 434 under the Act.
The term "Prospectus" means the form of final prospectus
included in the Registration Statement at the time it became
effective under the Act, as amended and supplemented prior to
the date of this Agreement and as supplemented by the
Prospectus Supplement, and shall be deemed to include the
"electronic Prospectus" for use in connection with the
offering of the Shares contemplated by Section 3 of this
Agreement. 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 of
the Registration Statement or the date of such preliminary
prospectus or any Prospectus, as the case may be. All
references in this Agreement to the Registration Statement,
any preliminary prospectus or the
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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 ("EDGAR"). Any reference herein to the terms
"amend," "amendment" or "supplement" with respect to the
Registration Statement or the Prospectus shall be deemed to
refer to and include the filing of any document under the
Exchange Act after the effective date of the Registration
Statement, or the date of any preliminary prospectus or the
Prospectus, as the case may be, and deemed to be incorporated
therein by reference.
(b) The Commission has not issued an order preventing or
suspending the use of any Prospectus relating to the proposed
offering of the Shares nor instituted proceedings for that
purpose. The Registration Statement contains, and the
Prospectus and any amendments or supplements thereto will
contain, all statements that are required to be stated therein
by, and will conform to, the requirements of the Act and the
Rules and Regulations. Any Prospectus filed by electronic
transmission by EDGAR (except as may be permitted by
Regulation S-T under the Act) will be identical to the copies
thereof delivered to the Underwriters for use in connection
with the offer and sale of the Shares. The Registration
Statement at the time it became effective under the Act and
any post-effective amendment thereto did not contain any
untrue statement of a material fact and did not omit to state
any material fact required to be stated therein or necessary
to make the statements therein not misleading. The
Registration Statement, the Prospectus and any amendments and
supplements thereto do not contain, and will not contain, any
untrue statement of material fact; and do not omit, and will
not omit, to state any material fact required to be stated
therein or necessary to make the statements therein, in the
light of the circumstances under which they were made, not
misleading; provided, however, that the Company makes no
representations or warranties as to information contained in
or omitted from the Registration Statement or the Prospectus,
or any such amendment or supplement, in reliance upon, and in
conformity with, written information furnished to the Company
by or on behalf of any Underwriter through the Representative,
specifically for use in the preparation thereof. 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 into the
Registration Statement or 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 Exchange Act and the rules and regulations of the
Commission thereunder; and any documents so filed and
incorporated by reference subsequent to the date hereof shall,
when they are filed with the Commission, conform in all
material respects with the requirements of the Exchange Act
and the rules and regulations of the Commission thereunder.
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(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 Forward 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 thereunder may
be limited by Federal or state securities laws and except as
such enforceability may be limited by bankruptcy, insolvency,
reorganization or similar laws affecting the rights of
creditors generally, and subject to general principles of
equity. The Company has full power and authority to enter into
the Forward Agreement and to authorize, issue and sell the
Shares as contemplated by the Forward Agreement.
(f) The Stock Purchase Agreement, dated as of October 15, 2004
(the "Antioch Stock Purchase Agreement"), by and among the
Company, Antioch Holding Company ("Antioch") and the
shareholders of Antioch named therein has been duly
authorized, executed and delivered by the Company and
constitutes a valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms,
except as such enforceability may be limited by bankruptcy,
insolvency, reorganization or similar laws affecting the
rights of creditors generally, and subject to general
principles of equity. True, correct and complete copies of the
Antioch Stock Purchase Agreement and the other material
documents, agreements, certificates or other instruments
executed or delivered in connection therewith have been made
available to the Underwriters. The Antioch Stock Purchase
Agreement conforms in all material respects to the statements
relating thereto contained in the Registration Statement and
the Prospectus or incorporated by reference therein.
(g) The Agreement and Plan of Merger, dated as of November 17,
2004 (the "First Northwest Merger Agreement"), by and among
the Company and First Northwest Bancorp, Inc. ("First
Northwest") has been duly authorized, executed and delivered
by the Company and constitutes a valid and binding obligation
of the Company, enforceable against the Company in accordance
with its terms, except as such enforceability may be limited
by bankruptcy, insolvency, reorganization or similar laws
affecting the rights of creditors generally, and subject to
general principles of equity. True, correct and complete
copies of the First Northwest Merger Agreement and the other
material documents, agreements, certificates or other
instruments executed or delivered in connection therewith have
been made available to the Underwriters. The First Northwest
Merger Agreement conforms
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in all material respects to the statements relating thereto
contained in the Registration Statement and the Prospectus or
incorporated by reference therein.
(h) The Company has been duly organized and is validly existing as
a corporation in good standing under the laws of the State of
Illinois, with corporate 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. The Company 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 B 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 B and (ii) Upgrad
Personnel Services, Inc., Crabtree Capital Corporation,
Wintrust Capital Trust I, Wintrust Capital Trust II, Wintrust
Capital Trust III, Wintrust Statutory Trust IV, Wintrust
Statutory Trust V, Wintrust Capital Trust VI, Wintrust Capital
Trust VII, Wintrust Information Technology Services Company,
Town Investment Corp., 245 Waukegan Road Limited Partnership,
Northview Capital Trust I, Town Bankshares Capital Trust I,
Fastrac Reinsurance Ltd., Northview Mortgage, L.L.C.,
Advantage National Bancorp, Inc., Village Bancorp, Inc. and
Guardian Real Estate Services, Inc., 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., Northbrook Bank and Trust
Company, Advantage National Bank, Village Bank & Trust
Company, Beverly Bank & Trust Company, N.A., Northview Bank &
Trust and Town Bank 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 and has been duly incorporated or
organized (as the case may be) and is validly existing as a
corporation or other entity in good standing under the laws of
its respective jurisdiction of incorporation or organization
(as the case may be). Each of the Subsidiaries has 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 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 condition (financial or otherwise),
properties, assets,
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liabilities, rights, operations, earnings, prospects, net
worth or results of operations of the Company and the
Subsidiaries taken as a whole, 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; and, except
as disclosed in the Prospectus, no options, warrants or other
rights to purchase, agreements or other obligations to issue
or other rights to convert any other obligations into shares
of capital stock or ownership interests in the Subsidiaries
are outstanding.
(i) 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, warrants, shares issued under the
Company's employee stock purchase plan or the Directors
Deferred Fee & Stock Plan or shares issued pursuant to the
Company's acquisition of Town Bankshares, Ltd.), or any
material change in the short-term or long-term debt (other
than the issuance of $50.0 million of trust preferred
securities contemplated by the Prospectus), 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.
(j) The outstanding shares of Common Stock have been duly
authorized and validly issued and are fully paid and
non-assessable; the Shares to be purchased by the Forward
Seller pursuant to the Forward Agreement, whether pursuant to
physical settlement, as a result of acceleration or otherwise,
have been duly authorized and when issued, delivered and paid
for as contemplated by the Forward Agreement, 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. The Company has reserved and
will keep available, free from preemptive and other similar
rights, out of its authorized but unissued Common Stock,
solely for the purpose of issuance upon settlement of the
transactions contemplated by the Forward Agreement as therein
provided, the full number of Shares as shall then be issuable
upon settlement of such transactions. Neither the filing of
the Registration Statement nor the offering or sale of the
Shares as contemplated by
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this Agreement gives rise to any rights, other than those that
have been waived or satisfied, for or relating to the
registration of any shares of Common Stock.
(k) If the Company issues and sells shares of Common Stock to the
Underwriters pursuant to Section 13 hereof, the Shares to be
purchased by the Underwriters from the Company will have been
duly authorized for issuance and sale to the Underwriters
pursuant to this Agreement and, when issued and delivered by
the Company pursuant to this Agreement against payment of the
consideration set forth herein, will be validly issued and
fully paid and non-assessable.
(l) The information set forth under the caption "Capitalization"
in the Prospectus is true and correct as of the date thereof.
All of the Shares conform to the description thereof contained
or incorporated by reference in the Registration Statement.
The form of certificate for the Shares conforms to the
corporate law of the jurisdiction of the Company's
incorporation. Immediately after the 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 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.
(m) 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.
(n) The consolidated financial statements of the Company and its
subsidiaries, together with related notes and schedules as set
forth or incorporated by reference in the Registration
Statement and the Prospectus, 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 and the Prospectus presents fairly the information
shown therein and such data has been compiled on a basis
consistent with the financial statements presented therein and
the books and records of the Company. There are no pro forma
financial statements or other pro forma financial information
required to be included or
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incorporated by reference in the Registration Statement or the
Prospectus. No other financial statements or schedules of the
Company are required by the Act or the Rules and Regulations,
or the Exchange Act or the rules and regulations of the
Commission thereunder to be included or incorporated by
reference in the Registration Statement or the Prospectus.
Prior to the issuance of shares of Common Stock upon
settlement of the Forward Agreement, the Forward Agreement
will be reflected in the Company's diluted earnings per share
calculations using the treasury stock method. The Company
expects that there will be no dilutive effect on the Company's
earnings per share except during periods when the average
market price of the Common Stock is above the per share
adjusted forward sale price under the Forward Agreement.
(o) The Company maintains a system of internal accounting controls
sufficient to provide reasonable assurances (i) regarding the
reliability of financial reporting and the preparation of
financial statements for external purposes in accordance with
general accepting accounting principles and (ii) that (A)
transactions are executed in accordance with management's
general or specific authorization; (B) transactions are
recorded as necessary to permit preparation of financial
statements in conformity with generally accepted accounting
principles and to maintain accountability for assets; (C)
access to assets is permitted only in accordance with
management's general or specific authorization; and (D) the
recorded accountability for assets is compared with existing
assets at reasonable intervals and appropriate actions is
taken with respect to any differences. The certifications of
the Company's Chief Executive Officer and Chief Financial
Officer filed as exhibits to the Company's quarterly report on
Form 10-Q for the quarter ended September 30, 2004, pursuant
to Sections 302 and 906 of the Sarbanes-Oxley Act, were
accurate, in all material respects, as of the date such
certifications were made, and, to the knowledge of the
Company, such certifications are accurate in all material
respects as of the date hereof.
(p) Based on the evaluation of its disclosure controls and
procedures, the Company is not aware of (i) any significant
deficiency or material weakness in the design or operation of
internal control over financial reporting that are reasonably
likely to adversely affect the Company's ability to record,
process, summarize and report financial information or (ii)
any fraud, whether or not material, that involves management
or other employees who have a significant role in the
Company's internal control over financial reporting. There
have been no changes in internal control over financial
reporting during the Company's most recent fiscal quarter that
have materially affected or are reasonably likely to
materially affect the Company's internal control over
financial reporting.
(q) 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, are independent public accountants with respect to
the Company within the meaning of the Act and the Rules and
Regulations. The Company has not engaged the Accountant to
provide any services to the Company that are
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impermissible under the Exchange Act, except as permissible
under the Exchange Act at the time such services were
provided. All such services have been approved by the Audit
Committee of the Company's Board of Directors as required by
the Exchange Act.
(r) 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.
(s) 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.
(t) The Company and the Subsidiaries have good and marketable
title to all of the properties and assets reflected in the
financial statements (or as described in the Registration
Statement) hereinabove described, subject to no lien,
mortgage, pledge, charge or encumbrance of any kind except
those reflected in such financial statements (or as described
in the Registration Statement) or that are not material in
amount 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.
(u) The Company and the Subsidiaries have filed all Federal,
state, local and foreign tax returns that have been required
to be filed and have paid all taxes indicated by said returns
and all assessments received by them or any of them to the
extent that such taxes have become due and are not being
contested in good faith and for which an adequate reserve for
accrual has been established in accordance with U.S. generally
accepted accounting principles, 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.
(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 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
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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 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.
(w) 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 Forward Agreement and the consummation of
the transactions contemplated herein and therein 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.
(x) 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 Forward Agreement and the consummation
of the transactions herein and therein contemplated (except
such 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.
(y) The Company and each of the Subsidiaries have all licenses,
certifications, permits, franchises, approvals, clearances and
other regulatory authorizations ("Permits") from governmental
authorities as are necessary to conduct their businesses as
currently conducted and to own, lease and operate 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.
(z) To the Company's knowledge, except for affiliations with Wayne
Hummer Investments, LLC, a Delaware limited liability company
and one of the Subsidiaries ("WHI"), and Focused Investments,
LLC, an Illinois limited liability
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company and one of the Subsidiaries ("Focused"), there are no
affiliations or associations between any member of the
National Association of Securities Dealers, Inc. (the "NASD")
and any of the Company's officers, directors or 5% or greater
security holders, except as set forth in the Registration
Statement or in questionnaires completed by such persons and
previously delivered to counsel for the Underwriters.
(aa) Neither the Company, nor to the Company's knowledge, any of
its affiliates, has taken or may take, directly or indirectly,
any action designed to cause or result in, or that has
constituted or that might reasonably be expected to
constitute, the stabilization or manipulation of the price of
the shares of Common Stock to facilitate the sale or resale of
the Shares. The Company acknowledges that the Underwriters may
engage in passive market making transactions in the Shares on
the Nasdaq National Market in accordance with Regulation M
under the Exchange Act.
(bb) 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.
(cc) The Company and each of the Subsidiaries carry, or are covered
by, insurance in such amounts and covering such risks as is in
the reasonable 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.
(dd) 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
11
Company would have any liability that is intended to be
qualified under Section 401(a) of the Code is so qualified in
all material respects and nothing has occurred, whether by
action or by failure to act, that would cause the loss of such
qualification.
(ee) 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.
(ff) Neither the Company nor any of the Subsidiaries has sent or
received any notice indicating the termination of or intention
to terminate any of the contracts or agreements referred to or
described in the Registration Statement or the Prospectus, or
filed as an exhibit to the Registration Statement or any of
the documents incorporated by reference into the Registration
Statement or 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, except as would not
have Material Adverse Effect.
(gg) 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.
(hh) 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 by any other person in
connection with any opportunity, contract, permit,
certificate, consent, order, approval, waiver or other
authorization relating to the business of the Company or any
Subsidiary, except for such payments or inducements as were
lawful under applicable laws, rules and regulations. Neither
the Company nor any Subsidiary, nor, to the best knowledge of
the Company, any director, officer, agent, employee or other
person associated with or acting on behalf of the Company or
any Subsidiary, (i) has used any corporate funds for any
unlawful contribution, gift, entertainment or other unlawful
expense relating to political activity; (ii) made any direct
or indirect unlawful payment to any
12
government official or employee from corporate funds; (iii)
violated or is in violation of any provision of the Foreign
Corrupt Practices Act of 1977; or (iv) made any bribe,
unlawful rebate, payoff, influence payment, kickback or other
unlawful payment in connection with the businesses of the
Company or any Subsidiary.
(ii) The Company and each of the Subsidiaries own or possess all
patents, patent applications, trademarks, service marks,
tradenames, trademark registrations, service mark
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 mark registrations,
copyrights, licenses, inventions, trade secrets or other
similar rights of others that could reasonably be expected to
have a Material Adverse Effect. Neither the Company nor any of
the Subsidiaries has received any notice alleging any such
infringement or fee, except as the Company does not reasonably
expect to have a Material Adverse Effect.
(jj) The Company and each of the Subsidiaries (i) are in compliance
with Federal, state, local and foreign laws, statutes,
ordinances, rules, regulations and decrees including, but not
limited to, those of self-regulatory organizations, the Bank
Holding Company Act, the Bank Secrecy Act, the
Gramm-Leach-Bliley Act, International Money Laundering
Abatement and Anti-Terrorist Financing Act of 2001, the USA
Patriot Act of 2001 and those of the Board of Governors of the
Federal Reserve System (the "Federal Reserve"), the Department
of Financial Institutions of the State of Wisconsin (the
"WDFI"), the Federal Home Loan Mortgage Corporation ("FHLMC"),
the Federal Housing Administration (the "FHA"), the Federal
National Mortgage Association (the "FNMA"), the United States
Department of Housing and Urban Development ("HUD"), the
Illinois Department of Financial and Professional Regulation
(the "IDFPR") and the Office of the Comptroller of Currency
(the "OCC") and the U.S. Department of Agriculture as Rural
Housing and Community Development Service Approved Center (the
"USDA"), the United States Department of Veterans Affairs (the
"UA") (collectively, "Laws"), applicable to their businesses
or their employees, including, without limitation, licensing
and certification Laws covering any aspect of the businesses
of the Company or any of the Subsidiaries, 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; (ii) are not, nor are any of their
respective affiliates, subject to a "statutory disability" as
defined in Section 3(a)(39) of the Exchange Act; and (iii)
have filed all reports, registrations and statements, together
with any amendments required to be made with respect
13
thereto, that were required to be filed (A) with the Federal
Reserve, HUD, the FHA, FHLMC, FNMA, FDIC, OCC, IDFPR, USDA, UA
and WDFI and (B) under any applicable statute, rule,
regulation, law or order, with any applicable governmental
authority or self-regulatory organization with jurisdiction
over any of the activities of the Company or the Subsidiaries
(other than filings with such other governmental authorities
or self-regulating organizations which individually or in the
aggregate are not material to the business of the Company or
the Subsidiaries taken as a whole) including reports relating
to escheatment of funds (collectively, the "Company Regulatory
Reports"), and have paid all fees in connection therewith,
except where the failure to make any such filing could not
reasonably be expected to be material. As of their respective
dates, the Company Regulatory Reports complied in all respects
with the applicable statutes, rules, regulations, laws and
orders enforced or promulgated by the governmental authority
or self-regulatory organization with which they were filed,
except in all such cases described in clauses (i) - (iii) of
the preceding sentence where such noncompliance or violation
would not have a Material Adverse Effect, and did not contain
any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to
make the statement therein, in the light of the circumstances
under which they were made, not misleading.
(kk) 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
Insurance 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 HUD,
the FHA, FHLMC, FNMA, IDFPR, OCC, USDA, UA, WDFI and the
Federal Reserve, as applicable, to own the capital stock of
its subsidiaries. Neither the Company nor any of its
Subsidiaries, nor, to the Company's knowledge, any of their
respective directors, officers or trustees, is party or
subject to, or has received any notice or advice that any of
them may become party or subject to, any investigation with
respect to, any cease-and-desist order, agreement, memorandum
of understanding, commitment letter, directive or other
regulatory enforcement action, proceeding or order with or by,
or has been a recipient of any supervisory letter from, or has
adopted any board resolutions at the request of, any regulator
(including HUD, the FHA, FHLMC, FNMA, IDFPR, OCC, USDA, UA,
WDFI, the Federal Reserve, the FDIC, or any other federal or
state agency charged with the supervision or regulation of
depository institutions, banks, or financial holding
companies, or engaged in the insurance of depository
institution deposits, or any court, administrative agency or
commission or other governmental agency, authority or
instrumentality having supervisory or regulatory authority
with respect to the Company or any of its Subsidiaries (each,
a "Regulator")) that imposes any restrictions or requirements
not generally applicable to entities of the same type as the
Company and the Subsidiaries or currently restricts in any
material respect the conduct of their business or that in any
material manner relates to their capital adequacy, their
credit policies, their ability or authority to pay dividends
or make distributions to their shareholders or
14
make payments of principal or interest on their debt
obligations, their management or their business (each a
"Regulatory Agreement"), nor has the Company or any of its
Subsidiaries been advised by any Regulator that it is
considering issuing or requesting any such Regulatory
Agreement, except for Regulatory Agreements that would not,
individually or in the aggregate, have a Material Adverse
Effect. There is no material unresolved violation, criticism
or exception by any Regulator with respect to any report or
statement relating to any examinations of the Company or any
of its Subsidiaries.
(ll) Neither the Company nor any of the Banks has received any
notice of non-compliance with the applicable provisions of the
Community Reinvestment Act ("CRA") and the regulations
promulgated thereunder, and each of the Banks has received a
CRA rating of satisfactory or better from the FDIC or other
applicable governmental authority. The Company knows of no
facts or circumstances that would cause any of the Banks to
fail to comply with such provisions or cause the CRA rating of
any such Bank to fall below satisfactory.
(mm) 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.
(nn) Each agreement under which the Company and the Subsidiaries,
including, without limitation, Wayne Hummer Asset 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.
(oo) 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
15
required by state law, except where such failure would not
have a Material Adverse Effect. WHI and Focused are duly
registered as broker-dealers 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, Focused
and WHMC, no Subsidiary is registered as, or required to be
registered as, an investment adviser or a broker-dealer with
the Commission or any applicable state regulatory agency. Each
of WHMC, WHI and 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 Wayne Hummer Growth Fund, Wayne Hummer Income Fund and the
Wayne Hummer CorePortfolio Fund (collectively, the "WH
Funds"), each of which is a portfolio of the Wayne Hummer
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
16
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.
(pp) 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 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.
(qq) Upon sale 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. All Shares issuable upon consummation of the
transactions contemplated by the Forward Agreement shall, upon
such issuance, be eligible for quotation on the Nasdaq
National Market without any such further action being
required.
(rr) The information contained in the Registration Statement and
the Prospectus regarding the Company's expectations, plans and
intentions, and any other information that constitutes
"forward-looking" information within the meaning of the
Securities Act and the Exchange Act, were made by the Company
and its management on a reasonable basis and in the exercise
of their reasonable judgment, and reflect the Company's and
its management's good faith belief or estimate of the matters
described therein.
(ss) 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.
(tt) The Company is in compliance with the applicable provisions of
the Sarbanes-Oxley Act that are currently effective.
17
2. Representations And Warranties Of The Forward Seller.
----------------------------------------------------
The Forward Seller represents and warrants to each Underwriter as of
the date hereof and as of the Closing Date (as defined in Section 3(d) hereof),
and agrees with each Underwriter, as follows:
(a) This Agreement has been duly authorized, executed and
delivered by the Forward Seller and, at the Closing Date and
at the Option Closing Date, the Forward Seller will have full
right, power and authority to sell, transfer and deliver the
Borrowed Shares.
(b) The Forward Agreement has been duly authorized, executed and
delivered by the Forward Seller and constitutes a valid, legal
and binding obligation of the Forward Seller, 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 Forward Seller has full
power and authority to enter into the Forward Agreement.
(c) The Forward Seller will, at the Closing Date and at the Option
Closing Date, have the free and unqualified right to transfer
the Borrowed Shares to be sold by the Forward Seller
hereunder, free and clear of any security interest, mortgage,
pledge, lien, charge, claim, equity or encumbrance of any
kind; and upon delivery of such Borrowed Shares and payment of
the purchase price as herein contemplated, assuming each of
the Underwriters has no notice of any adverse claim, each of
the Underwriters will have the free and unqualified right to
transfer to the Borrowed Shares purchased by it from the
Forward Seller, free and clear of any security interest,
mortgage, pledge, lien, charge, claim, equity or encumbrance
of any kind.
3. Purchase, Sale And Delivery Of The Shares.
-----------------------------------------
(a) On the basis of the representations, warranties and covenants
contained herein, and subject to the conditions set forth
herein, the Forward Seller agrees to sell to the several
Underwriters and each Underwriter agrees, severally and not
jointly, to purchase from the Forward Seller (including the
issuance and sale by the Company of Common Stock to the
Underwriters pursuant to Section 13(a) hereof), at the price
per share set forth on Schedule II hereto, the number of
Borrowed Shares set forth opposite the name of each
Underwriter in Schedule I hereof, subject to adjustments in
accordance with Section 10 hereof.
(b) If the Company does not meet all of the conditions to
effectiveness set forth in the Forward Agreement on or prior
to the Closing Date, the Forward Seller, individually, in its
sole judgment, may elect not to borrow and deliver for sale
the Borrowed Shares. In addition, in the event that, in the
sole judgment of the Forward Seller, it is unable to borrow
and deliver for sale under this Agreement
18
all of the Borrowed Shares or if, in the Forward Seller's sole
judgment, it would entail a stock loan cost in excess of a
rate equal to 75 basis points per annum, then the Forward
Seller shall only be required to deliver for sale the
aggregate number of shares of Common Stock that such Forward
Seller is able to so borrow at such cost.
(c) If, pursuant to Section 3(b), the Forward Seller elects not to
borrow and deliver for sale the Borrowed Shares, the Forward
Seller will use its reasonable best efforts to notify the
Company no later than the Closing Date.
(d) Payment for the Borrowed Shares to be sold hereunder is to be
made in Federal (same day) funds to an account designated by
the Forward Seller 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 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 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 not
permitted by law or executive order to be closed.)
(e) In addition, on the basis of the representations and
warranties herein contained and subject to the terms and
conditions herein set forth, the Forward Seller 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 Forward
Seller 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 Borrowed Shares being purchased by
such Underwriter bears to the total number of Borrowed 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 Borrowed Shares by the Underwriters. You, as the
Representative of the several Underwriters, may cancel such
option at any time prior to its
19
expiration by giving written notice of such cancellation to
the Forward Seller. 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 (same day) funds drawn to the
order of the Company or the Forward Seller against delivery of
certificates therefor through the facilities of the Depository
Trust Company, New York, New York.
(f) The Forward Seller shall deliver, or cause to be delivered, a
credit representing the Borrowed Shares (and any shares of
Common Stock issued and sold by the Company to the
Underwriters pursuant to Section 13(a)) to an account or
accounts at The Depository Trust Company, as designated by the
Representative for the accounts of the several Underwriters at
the Closing Date, against the irrevocable release of a wire
transfer of immediately available funds for the amount of the
purchase price therefor. The Forward Seller shall also
deliver, or cause to be delivered a credit representing the
Option Shares that the Underwriters have agreed to purchase at
the Closing Date (or the Option Closing Date, as the case may
be), to an account or accounts at The Depository Trust Company
as designated by the Representative for the accounts of the
several Underwriters, at the Closing Date or the Option
Closing Date, as the case may be, against the irrevocable
release of a wire transfer of immediately available funds for
the amount of the purchase price therefor. Time shall be of
the essence, and delivery at the time and place specified in
this Agreement is a further condition to the obligations of
the Underwriters.
(g) Not later than 12:00 noon, New York time, on the second
business day following the date the Shares are released by the
Underwriters for sale to the public, the Company shall deliver
or cause to be delivered copies of the Prospectus in such
quantities and at such places as the Representatives shall
request.
4. Offering By The Underwriters.
----------------------------
It is understood that the several Underwriters are to make a public
offering of the Borrowed Shares as soon as the Representative deems it advisable
to do so. The Borrowed 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 3 hereof, the Underwriters will offer them to the public on
the foregoing terms.
It is further understood that you will act as the Representative for
the Underwriters in the offering and sale of the Shares in accordance with a
Master Agreement Among Underwriters entered into by you and the several other
Underwriters.
5. Covenants Of The Company.
------------------------
The Company covenants and agrees with the several Underwriters that:
20
(a) The Company will (i) 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; (ii) not
file any amendment to the Registration Statement or supplement
to the Prospectus of which the Representative shall not
previously have been advised and furnished with a copy or to
which the Representative shall have reasonably objected in
writing or that is not in compliance with the Rules and
Regulations; and (iii) file on a timely basis all reports and
any definitive proxy or information statements required to be
filed by the Company with the Commission subsequent to the
date of the Prospectus and prior to the termination of the
offering of the Shares by the Underwriters.
(b) The Company will not take, directly or indirectly, any action
designed to cause or result in, or that has constituted or
might reasonably be expected to constitute, the stabilization
or manipulation of the price of any securities of the Company.
(c) The Company will advise the Representative promptly (i) when
any post-effective amendment to the Registration Statement
shall have become effective; (ii) of receipt of any comments
from the Commission; (iii) of any request of the Commission
for amendment of the Registration Statement or for supplement
to the Prospectus or for any additional information; and (iv)
of the issuance by the Commission of any stop order suspending
the effectiveness of the Registration Statement or the use of
the Prospectus or of the institution of any proceedings for
that purpose. The Company will use its best efforts to prevent
the issuance of any such stop order preventing or suspending
the use of the Prospectus and to obtain as soon as possible
the lifting thereof, if issued.
(d) The Company will cooperate with the Representative in
endeavoring to qualify the Shares for sale under the
securities laws of such jurisdictions as the Representative
may reasonably have designated in writing and will make such
applications, file such documents and furnish such information
as may be reasonably required for that purpose, provided the
Company shall not be required to qualify as a foreign
corporation or to file a general consent to service of process
in any jurisdiction where it is not now so qualified or
required to file such a consent. The Company will, from time
to time, prepare and file such statements, reports and other
documents as are or may be required to continue such
qualifications in effect for so long a period as the
Representative may reasonably request for distribution of the
Shares.
(e) The Company will deliver to, or upon the order of, the
Representative, from time to time, as many copies of any
preliminary prospectus as the Representative may reasonably
request. The Company will deliver to, or upon the order of,
the Representative during the period when delivery of a
Prospectus is required under the Act, as many copies of the
Prospectus in final form, or as thereafter amended or
supplemented, as the Representative may reasonably request.
The Company will deliver to the Representative at or before
the Closing Date, four signed copies of the Registration
Statement and all amendments thereto including all exhibits
filed therewith, and will deliver to the Representative such
number of copies of
21
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 and the Rules and
Regulations, and the Exchange Act and the rules and
regulations of the Commission thereunder, 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 security
holders, as soon as it is practicable to do so, but in any
event not later than 15 months after the effective date of the
Registration Statement, 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 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 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 warrants or
pursuant to the Company's Employee Stock Purchase Plan, 1997
Stock Incentive Plan, as amended, or the Directors Deferred
Fee and Stock Plan, (iii) the filing of a
22
Form S-8 registration statement relating to the registration
of shares of Common Stock pursuant to such plans, (iv) the
filing of a Form S-4 registration statement in connection with
the Company's acquisition of First Northwest and the First
Northwest Merger Agreement and the issuance of shares of
Common Stock in connection with such transaction and (v) the
filing of any post-effective amendments to any registration
statement currently on file, if required, provided that no
such post-effective amendment increases the number of shares
or amount of securities covered by any such registration
statement.
(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 offer, sell, sell short or
otherwise dispose of any shares of Common Stock or other
capital stock of the Company, or any other securities
convertible, exchangeable or exercisable for shares of Common
Stock or derivative of shares of Common Stock owned by such
person or request the registration for the offer or sale of
any of the foregoing (as to which such person has the right to
direct for the disposition of) for a period of 90 days after
the date of this Agreement, directly or indirectly, except
with the prior written consent of RBC Capital Markets
Corporation ("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,
23
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 Sarbanes-Oxley Act, 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, the Wisconsin banking laws and all
decisions, directives and orders of the FDIC, the OCC, the
Illinois Banking Commissioner, the Illinois Banking Board, the
WDFI, the Board of Governors of the Federal Reserve System,
the Commission, the NASD and the NYSE, CHX and AMEX, as
applicable).
6. 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 and the
Forward 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, the Prospectus, Blue
Sky Survey and any supplements or amendments thereto; the fees and expenses of
any transfer agent or registrar for the Common Stock; 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
up to a maximum amount of $5,000, incurred in connection with the qualification
of the Shares under state securities or Blue Sky laws.
The Company shall not, however, be required to pay for any of the
Underwriters' expenses (other than those related to qualification under NASD
regulation and state securities or Blue Sky laws) except that, if this Agreement
shall not be consummated because the conditions in Section 7 hereof are not
satisfied, or because this Agreement is terminated by the Representative
pursuant to Section 12 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
24
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.
7. Conditions Of Obligations Of The Underwriters.
---------------------------------------------
The several obligations of the Underwriters to purchase the Borrowed
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,
Kaufman & Kammholz, P.C., 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 as a corporation 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 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. Each of the
Subsidiaries listed on Exhibit A to such opinion is
duly qualified to do business as a foreign entity and
is in good standing in the jurisdictions listed on
such Exhibit A.
25
(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
Borrowed Shares and Option Shares to be purchased by
the Forward Seller in accordance with the settlement
provisions of the Forward Agreement have been duly
authorized and, when issued, delivered and paid for
in accordance with the terms of the Forward
Agreement, will have been validly issued and will be
fully paid and nonassessable, and the holders thereof
will not be subject to personal liability by reason
of being such holders. Except as otherwise stated in
the Registration Statement and Prospectus, there are
no preemptive rights or other rights to subscribe for
or to purchase, or any restriction upon the voting or
transfer of, any shares of Common Stock pursuant to
the Company's Charter, By-laws or, to such counsel's
knowledge, any agreement or other instrument to which
the Company is a party or by which the Company is
bound. To such counsel's knowledge, 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 for or relating to
the registration of any shares of Common Stock or
other securities of the Company.
(iii) To 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. Section 55 or 12
U.S.C. 1831o) and, to 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 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 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
26
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, 2003, insofar as such descriptions
constitute a summary of legal and regulatory matters
are accurate in all material respects and fairly
present the 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. Furthermore, the
information in the Prospectus concerning the Forward
Agreement under the caption "Underwriting"
constitutes a fair summary of the Forward Agreement
in all material respects.
(vi) The Company has full corporate power and authority to
enter into this Agreement and the Forward Agreement,
and this Agreement and the Forward Agreement have
been duly authorized, executed and delivered by the
Company; the execution, delivery and performance of
this Agreement and the Forward Agreement and the
consummation of the transactions herein and therein
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
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
and the Forward Agreement or for the consummation of
the transactions contemplated hereby and thereby,
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 issuance and sale by the Company of Settlement
Shares (as defined in the Forward Agreement) to the
Forward Purchaser in settlement of the Forward
Agreement in accordance with the terms thereof will
not require registration under the Act, and the
Forward Seller will not have an obligation to deliver
a Prospectus in connection with the Settlement Shares
delivered to it by the Company upon such settlement,
assuming that (i) Prospectuses were delivered by the
Underwriters in connection with sales of Borrowed
Shares in an amount not less than the Base Amount (as
defined in the Forward Agreement) and (ii) the
Forward Purchaser only
27
delivers the Settlement Shares to close out open
borrowings created in the course of the hedging
activities created by the Forward Purchaser relating
to its exposure under the Forward Agreement in
compliance with the Forward Agreement.
(viii) 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 and
the Rules and Regulations, and the Exchange Act and
the rules and regulations of the Commission
thereunder (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.
(ix) Such counsel does not know of any contracts or
documents required to be filed as exhibits to the
Registration Statement or described in the
Registration Statement or the Prospectus that are not
so filed or described as required, and such documents
as are summarized in the Registration Statement or
the Prospectus are fairly summarized in all material
respects.
(x) 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.
(xi) The Company is not, and will not become, as a result
of the consummation of the transactions contemplated
by this Agreement and the Forward 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, Kaufman & Kammholz, P.C. (x)
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 and (y)
shall opine as to matters governed by the laws of the states of Illinois,
Delaware and New York and Federal laws. 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 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, Kaufman &
28
Kammholz, P.C. 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 Reinhart Boerner
Van Deuren s.c., Wisconsin counsel for the Company, an opinion
dated the Closing Date and the Option Closing Date, if any,
with respect to such matters as the Representative may
reasonably request.
(d) The Representative shall have received from Jones 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, certain matters relating to the Forward
Agreement 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.
(e) The Representative shall have received at or prior to the
Closing Date from Jones 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.
(f) 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 financial
statements and certain financial and statistical information
contained in the Registration Statement and the Prospectus.
(g) 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;
29
(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) They have 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.
(h) 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.
(i) The Borrowed Shares and Option Shares, if any, have been
approved for quotation on the Nasdaq National Market.
(j) The Lockup Agreements described in Section 5(k) have been
furnished to the Representative.
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 6, 12 and 16
hereof).
8. 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
30
the Registration Statement shall have been issued and in effect or proceedings
therefor initiated or threatened.
9. Indemnification.
---------------
(a) The Company agrees:
(i) to indemnify and hold harmless each Underwriter and
the Forward Seller and each person, if any, who
controls any Underwriter or the Forward Seller within
the meaning of the Act, including any general or
limited partner of such Underwriter or the Forward
Seller, against any losses, claims, damages or
liabilities to which such Underwriter or the Forward
Seller or any such controlling person may become
subject under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions or
proceedings in respect thereof) arise out of or are
based upon (i) any untrue statement or alleged untrue
statement of any material fact contained in the
Registration Statement, any preliminary prospectus,
the Prospectus or any amendment or supplement
thereto, (ii) the omission or alleged omission to
state therein a material fact required to be stated
therein or necessary to make the statements therein
not misleading any act or failure to act or (iii) any
alleged act or failure to act by any Underwriter in
connection with, or relating in any manner to, the
Shares or the offering contemplated hereby, and that
is included as part of or referred to in any loss,
claim, damage, liability or action arising out of or
based upon matters covered by clause (i) or (ii)
above (provided, however, that the Company shall not
be liable under this clause (iii) to the extent that
it is determined in a final judgment by a court of
competent jurisdiction that such loss, claim, damage,
liability or action resulted directly from any such
acts or failures to act undertaken or omitted to be
taken by such Underwriter or the Forward Seller
through its gross negligence or willful misconduct);
provided, however, that the Company will not be
liable in any such case to the extent that any such
loss, claim, damage or liability arises out of or is
based upon an untrue statement or alleged untrue
statement, or omission or alleged omission made in
the Registration Statement, any preliminary
prospectus, the Prospectus, or such amendment or
supplement, in reliance upon and in conformity with
written information furnished to the Company by or
through the Representative specifically for use in
the preparation thereof; and 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 5
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
31
supplemented) would have cured the defect giving rise
to such loss, claim, damage or liability; and
(ii) to reimburse each Underwriter or the Forward Seller
and each such controlling person upon demand for any
legal or other out-of-pocket expenses reasonably
incurred by such Underwriter or the Forward Seller 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
or the Forward Seller were not entitled to receive
payments for legal and other expenses pursuant to
this subparagraph, the Underwriters or the Forward
Seller 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, and the Forward Seller, each of its officers,
directors, employees, agents and representatives and each
person, if any, who controls a Forward Seller within the
meaning of the Act, against any losses, claims, damages or
liabilities to which the Company or any such director, officer
or controlling person may become subject under the Act or
otherwise, insofar as such losses, claims, damages or
liabilities (or actions or proceedings in respect thereof)
arise out of or are based upon (i) any untrue statement or
alleged untrue statement of any material fact contained in the
Registration Statement, any preliminary prospectus, the
Prospectus or any amendment or supplement thereto or (ii) the
omission or the alleged omission to state therein a material
fact required to be stated therein or necessary to make the
statements therein not misleading in the light of the
circumstances under which they were made; and will reimburse
any legal or other expenses reasonably incurred by the Company
or any such director, officer or controlling person in
connection with investigating or defending any such loss,
claim, damage, liability, action or proceeding; provided,
however, that each Underwriter will be liable in each case to
the extent, but only to the extent, that such untrue statement
or alleged untrue statement or omission or alleged omission
has been made in the Registration Statement, any preliminary
prospectus, the Prospectus or such amendment or supplement, in
reliance upon and in conformity with written information
furnished to the Company by or through the Representative
specifically for use in the preparation thereof.
(c) In case any proceeding (including any governmental
investigation) shall be instituted involving any person in
respect of which indemnity may be sought pursuant to this
Section, such person (the "indemnified party") shall promptly
notify the person against whom such indemnity may be sought
(the "indemnifying party") in writing. No indemnification
provided for in Section 9(a) or (b) shall be available to any
party who shall fail to give notice as provided in this
Subsection
32
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 9(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 9(a) and by the Company in the case
of parties indemnified pursuant to Section 9(b). The indemnifying party shall
not be liable for any settlement of any proceeding effected without its written
consent but if settled with such consent or if there be a final judgment for the
plaintiff, the indemnifying party agrees to indemnify the indemnified party from
and against any loss or liability by reason of such settlement or judgment. In
addition, the indemnifying party will not, without the prior written consent of
the indemnified party, settle or compromise or consent to the entry of any
judgment in any pending or threatened claim, action or proceeding of which
indemnification may be sought hereunder (whether or not any indemnified party is
an actual or potential party to such claim, action or proceeding) unless such
settlement, compromise or consent includes an unconditional release of each
indemnified party from all liability arising out of such claim, action or
proceeding.
(d) If the indemnification provided for in this Section is
unavailable to or insufficient to hold harmless an indemnified
party under Section 9(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
33
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 (which benefits shall include the
proceeds to be received by the Company pursuant to the Forward
Agreement), the Forward Seller 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 (which proceeds shall
include the proceeds to be received by the Company pursuant to
the Forward Agreement) 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 of the Company, the Forward
Seller and the Underwriters shall be determined by reference
to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged
omission to state a material fact relates to information
supplied by the Company on the one hand, the Forward Seller
and 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, the Forward Seller and the Underwriters agree that it
would not be just and equitable if contributions pursuant to this Subsection
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
Subsection. 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 Subsection 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 Subsection to contribute are several in proportion to their respective
underwriting obligations and not joint.
(e) 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
34
effect, regardless of (i) any investigation made by or on
behalf of any Underwriter, its partners or any person
controlling such Underwriter, the Company, its directors or
officers or any person controlling the Company, (ii)
acceptance of any Shares and payment therefor hereunder and
(iii) any termination of this Agreement. A successor to any
Underwriter, its partners or any person controlling such
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.
10. 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 Borrowed 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 Borrowed 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 Borrowed 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 Borrowed Shares
or Option Shares, as the case may be, that they are obligated to purchase
hereunder, to purchase the Borrowed 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 Borrowed Shares or Option Shares, as the case
may be, with respect to which such default shall occur exceeds 10% of the
Borrowed 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 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 9
hereof. In the event of a default by any Underwriter or Underwriters, as set
forth in this Section, the Closing Date or Option Closing Date, if any, may be
postponed for such period, not exceeding seven days, as you, as Representative,
may determine in order that the required changes in the Registration Statement
or in the Prospectus or in any other documents or arrangements may be effected.
The term "Underwriter" includes any person substituted for a defaulting
Underwriter. Any action taken under this Section shall not relieve any
defaulting Underwriter from liability in respect of any default of such
Underwriter under this Agreement.
11. Notices.
-------
All communications hereunder shall be in writing and, except as
otherwise provided herein, will be mailed, delivered or faxed and confirmed as
follows:
35
if to the Underwriters or RBC Capital Markets Corporation
the Forward Seller, to: c/o RBC Capital Markets
One Liberty Plaza, 165 Broadway
New York, New York 10006-1404
Attention: Joe Morea, Syndicate Director
Fax: (212) 428-6260
if to the Company, to: Wintrust Financial Corporation
727 North Bank Lane
Lake Forest, IL 60045
Attention: Edward J. Wehmer
Chief Executive Officer
Fax: (847) 615-4091
12. Termination.
-----------
(a) This Agreement may be terminated by you 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 (A) in the absolute discretion of any group of
Underwriters (which may include RBC Capital Markets
Corporation) that has agreed to purchase in the aggregate at
least 50% of the Borrowed Shares, as long as RBC Capital
Markets Corporation does not affirmatively assert that
termination should not occur, or (B) in the absolute
discretion of RBC Capital Markets Corporation (whether or not
the condition of clause (A) is satisfied) has had or is
reasonably likely to have a Material Adverse Effect; (ii) any
outbreak, attack, or escalation of hostilities or declaration
of war, national emergency, act of terrorism or other national
or international calamity or crisis or change in economic,
financial or political conditions if the effect of such
outbreak, escalation, declaration, emergency, calamity, crisis
or change on the financial markets of the United States would,
in (A) the absolute discretion of any group of Underwriters
(which may include RBC Capital Markets Corporation) that has
agreed to purchase in the aggregate at least 50% of the
Borrowed Shares, as long as RBC Capital Markets Corporation
does not affirmatively assert that termination should not
occur, or (B) in the absolute discretion of RBC Capital
Markets Corporation (whether or not the condition of clause
(A) is satisfied), make it impracticable or inadvisable to
market the Shares or to enforce contracts for the sale of the
Shares, or (iii) suspension of trading in securities generally
on the New York Stock Exchange, the American Stock Exchange 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, (iv) the enactment,
publication, decree or other promulgation of any statute,
regulation, rule or order of any court or other governmental
authority that in your opinion materially and adversely
affects or may materially and adversely affect the business or
operations of the Company, (v) declaration of a banking
moratorium by United
36
States or New York or Illinois State authorities, (vi) the
suspension of trading of the Common Stock by The Nasdaq Stock
Market, the Commission, or any other governmental authority,
(vii) 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 (viii) if the
Forward Seller, pursuant to Section 3(b) and (e) hereof, does
not deliver Borrowed Shares for sale, and the Company fails to
deliver, pursuant to Section 13 hereof, a number of shares of
Common Stock equal to the number of shares that such Forward
Seller does not deliver; or
(b) as provided in Sections 7 and 10 of this Agreement.
13. Issuance And Sale By Company.
----------------------------
(a) In the event that (i) the Company does not meet all of the
conditions to effectiveness set forth in the Forward Agreement
on or prior to the Closing Date and the Forward Seller elects,
pursuant to Section 3(b), not to deliver Borrowed Shares or
(ii) in the sole judgment of the Forward Seller, it is unable
to borrow and deliver for sale under this Agreement all of the
Borrowed Shares set forth in Schedule B opposite its name or
if, in the Forward Seller's sole judgment it would entail a
stock loan cost in excess of 75 basis points per annum, the
Company shall issue and sell in whole but not in part a number
of shares of Common Stock equal to the number of shares that
the Forward Seller does not deliver. The Representative shall
have the right to postpone the Closing Date for a period not
exceeding one business day in order to effect any required
changes in any documents or arrangements.
(b) The Forward Seller shall have no liability whatsoever for any
Borrowed Shares it does not deliver to the Company, the
Underwriters or any other party if the Forward Seller (i)
elects, pursuant to Section 3(b) not to deliver Borrowed
Shares because the Company has failed to meet all of the
conditions to effectiveness set forth in the Forward Agreement
or (ii) is unable to borrow and deliver for sale under this
Agreement all of the Borrowed Shares it is required to deliver
hereunder or if, in such Forward Seller's sole judgment it
would entail a stock loan cost in excess of a rate equal to 75
basis points per annum.
14. 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.
15. 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
37
Prospectus or the Registration Statement consists of the information contained
under the table following the first paragraph and the statements set forth the
third paragraph and in the paragraphs under the headings captioned
"Stabilization," "Offers in the United Kingdom," "No Public Offering Outside the
United States" and "Electronic Delivery of Prospectus" in the Prospectus under
the caption "Underwriting".
16. 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.
The Company hereby submits to the non-exclusive jurisdiction of the
federal courts in the Borough of Manhattan in the City of New York in any suit
or proceeding arising out of or relating to this Agreement or the transactions
contemplated hereby.
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]
38
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 /s/ David A. Dykstra
--------------------------------------
David A. Dykstra
Sr. Executive V.P. & COO
ROYAL BANK OF CANADA
By /s/ Bruce Runciman
--------------------------------------
Name: Bruce Runciman
Title: Managing Director
The foregoing Underwriting Agreement is hereby confirmed
and accepted as of the date first above written.
RBC CAPITAL MARKETS CORPORATION
As the Representative of the several
Underwriters listed on Schedule I hereto
By: RBC Capital Markets Corporation
By: /s/ Joe Morea
--------------------------------
Name: Joe Morea
Title: Managing Director
S-1
EXHIBIT A
[FORM OF FORWARD AGREEMENT TO BE ATTACHED]
A-1
EXHIBIT B
LIST OF SIGNIFICANT SUBSIDIARIES (JURISDICTION OF INCORPORATION OR ORGANIZATION)
Lake Forest Bank & Trust Company (Illinois)
North Shore Community Bank & Trust Company (Illinois)
Hinsdale Bank & Trust Company (Illinois)
Libertyville Bank & Trust Company (Illinois)
Barrington Bank & Trust Company, N.A. (National Banking Association)
Crystal Lake Bank & Trust Company, N.A. (National Banking Association)
Northbrook Bank & Trust Company (Illinois)
Advantage National Bank (National Banking Association)
Village Bank and Trust of Arlington Heights (Illinois)
Beverly Bank & Trust Company, N.A. (National Banking Association)
Northview Bank & Trust (Illinois)
SGB Corporation d/b/a West America Mortgage Company (Colorado)
Town Bank (Wisconsin)
First Insurance Funding Corp. (Illinois)
Tricom, Inc. of Milwaukee (Wisconsin)
Wayne Hummer Trust Company, N.A. (National Banking Association)
Wayne Hummer Investments, L.L.C. (Delaware)
Wayne Hummer Asset Management Company (Illinois)
Focused Investments, L.L.C. (Illinois)
B-1
SCHEDULE I
SCHEDULE OF UNDERWRITERS
Number of
Borrowed Shares
Underwriter to be Purchased
----------- ---------------
RBC Capital Markets Corporation 456,000
Piper Jaffray & Co. 264,000
Raymond James & Associates, Inc. 240,000
Sandler O'Neill & Partners, L.P. 120,000
Stifel, Nicholas & Company, Incorporated 120,000
---------------------
TOTAL 1,200,000
=====================
SCHEDULE II
PRICE PER SHARE OF COMMON STOCK
-------------------------------
Public Offering Price Per Share Discount
Price Per Share Paid by Underwriters Per Share
--------------- -------------------- ---------
$59.50 $55.93 $3.57