EXHIBIT 1.2
EXECUTION COPY
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[RBC CAPITAL MARKETS LOGO] RBC Capital Markets Corporation
One Liberty Plaza - 2nd Floor
165 Broadway
New York, NY 10006-1404
Telephone: (212) 858-7000
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TO : WINTRUST FINANCIAL CORPORATION ("PARTY B")
727 NORTH BANK LANE
LAKE FOREST, IL 60045
ATTN : DAVID A. DYKSTRA, SR. EXECUTIVE V.P. & COO
FAX : (847) 615-4034
TEL : (847) 615-4096
FROM : RBC CAPITAL MARKETS CORPORATION
AS AGENT FOR
ROYAL BANK OF CANADA ("PARTY A")
FAX : (212) 428-3053
RBCCM REF : NY - 5189
RE : CONFIRMATION OF FORWARD STOCK SALE ON THE COMMON
STOCK OF WINTRUST FINANCIAL CORPORATION
DISCLOSURE OF AGENCY RELATIONSHIP
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Royal Bank of Canada ("RBC" or the "Bank") has appointed as its agent, its
indirect wholly-owned subsidiary, RBC Capital Markets Corporation ("RBCCM"), for
purposes of conducting on the Bank's behalf, a business in privately negotiated
transactions in options and other derivatives. You hereby are advised that RBC,
the principal and stated counterparty in such transactions, duly has authorized
RBCCM to market, structure, negotiate, document, price, execute and hedge
transactions in over-the-counter derivative products. RBCCM has full, complete
and unconditional authority to undertake such activities on behalf of RBC. RBCCM
acts solely as agent and has no obligation, by way of issuance, endorsement,
guarantee or otherwise with respect to the performance of either party under
this transaction. This transaction is not insured or guaranteed by RBCCM.
CONFIRMATION
The purpose of this letter agreement (this "Confirmation") is to confirm the
terms and conditions of the transaction entered into between us on the Trade
Date specified below (the "Transaction"). This Confirmation constitutes a
"Confirmation" as referred to in the Master Agreement specified below.
1. The definitions and provisions contained in the 2000 ISDA Definitions (the
"Swap Definitions") as published by the International Swaps and Derivatives
Association, Inc.
("ISDA") and in the 2002 ISDA Equity Derivatives Definitions (the "Equity
Definitions" and, together with the Swap Definitions, the "Definitions"), as
published by ISDA, are incorporated into this Confirmation. In the event of any
inconsistency between either set of definitions and provisions and this
Confirmation, this Confirmation will govern.
This Confirmation evidences a complete and binding agreement between Party A and
Party B as to the terms of the Transaction to which this Confirmation relates.
This Confirmation shall supplement, form a part of, and be subject to an
agreement in the form of the 2002 ISDA Master Agreement (the "Agreement") as if
Party A and Party B had executed an agreement in such form with a Schedule
thereto with the elections and variables set forth in Parts 4 and 5 of this
Confirmation. In the event of any inconsistency between provisions of that
Agreement and this Confirmation, this Confirmation will prevail for the purpose
of the Transaction to which this Confirmation relates. The parties hereby agree
that no Transaction other than the Transaction to which this Confirmation
relates shall be governed by the Agreement.
Party A and Party B each represents to the other that it has entered into the
Transaction in reliance upon such tax, accounting, regulatory, legal and
financial advice as it deems necessary and not upon any view expressed by the
other.
2. The terms of the particular Transaction to which this Confirmation relates
are as follows:
General Terms:
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Trade Date: December 14, 2004
Effective Date: December 17, 2004
Base Amount: Initially, 1,200,000 Shares, subject to increase
pursuant to the Overallotment Option. On each
Settlement Date, the Base Amount shall be reduced by
the number of Settlement Shares for such Settlement
Date.
Overallotment If the underwriters exercise their Overallotment
Option: Option granted to them in Section 3(e) of the
Underwriting Agreement (as defined below), the Base
Amount will be increased by 180,000 Shares or a
smaller number, pro rata with the amount of the
Overallotment Option exercised.
Maturity Date: December 17, 2005 (or, if such date is not a
Scheduled Trading Day, the next following Scheduled
Trading Day); provided that if the Maturity Date is a
Disrupted Day, then the Maturity Date shall be the
first succeeding Scheduled Trading Day that is not a
Disrupted Day.
Initial Forward USD55.93 per Share, (an amount which is equal to the
Price: public offering price less the underwriting
discount).
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Forward Price: On the Effective Date, the Initial Forward Price,
and, on any other day, the Forward Price as of the
immediately preceding calendar day multiplied by the
sum of (i) 1 plus (ii) the Daily Rate for such day;
provided that on each Forward Price Reduction Date,
the Forward Price in effect on such date shall be the
Forward Price otherwise in effect on such date minus
the Forward Price Reduction Amount for such Forward
Price Reduction Date.
Daily Rate: For any day, (i)(A) USD-Federal Funds Rate for such
day minus (B) the Spread divided by (ii) 360.
USD-Federal For any calendar day from and including the Effective
Funds Rate: Date through to and including the Maturity Date, the
rate set forth for such day opposite the caption
"Federal funds", as such rate is displayed on the
page "FedsOpen [Index] [GO]" on the BLOOMBERG
Professional Service, or any successor page; provided
that if no rate appears for any day on such page, the
rate for the immediately preceding day for which a
rate does so appear shall be used for such day.
Spread: 0.75%.
Forward Price February 1, 2005 and August 1, 2005.
Reduction Date(s):
Forward Price For each Forward Price Reduction Date, the Forward
Reduction Amount: Price Reduction Amount set forth opposite such date
on Schedule I.
Shares: Common Stock, no par value per share, of Wintrust
Financial Corporation (the "Issuer") (Exchange
identifier: "WTFC").
Exchange: NASDAQ National Market.
Related All Exchanges.
Exchange(s):
Clearance System: DTC.
Calculation Agent: RBCCM, which is an affiliate of RBC shall be the
Calculation Agent, or any successor calculation agent
thereto appointed by RBCCM. All determinations and
calculations of the Calculation Agent shall be
binding on the parties hereto in the absence of
material manifest error.
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Settlement Terms:
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Settlement Date: Any Scheduled Trading Day following the Effective
Date and up to and including the Maturity Date, as
designated by Party B in a written notice (a
"Settlement Notice") delivered to Party A at least
(i) ten Scheduled Trading Days prior to such
Settlement Date (Party A shall use reasonable efforts
to accommodate a shorter Settlement Period), which
may be the Maturity Date, if Physical Settlement
applies, and (ii) 15 Scheduled Trading Days prior to
such Settlement Date, which may be the Maturity Date,
if Cash Settlement or Net Stock Settlement applies
(the period from the giving of any such notice to the
Settlement Date being the "Cash/Net Stock Notice
Period"); provided that the Maturity Date shall be a
Settlement Date if on such date the Base Amount is
greater than zero.
Settlement Shares: With respect to any Settlement Date, a number of
Shares, not to exceed the Base Amount, designated as
such by Party B in the related Settlement Notice;
provided that (i) Party B must designate as the
Settlement Shares for each Settlement Date other than
the Maturity Date a number of Shares equal to at
least the lesser of (x) 100,000 and (y) the Base
Amount on such date, and (ii) on the Maturity Date
the number of Settlement Shares shall be equal to the
Base Amount on such date.
Settlement: Physical Settlement, Cash Settlement or Net Stock
Settlement, at the election of Party B as set forth
in the Settlement Notice; provided that Physical
Settlement shall apply (i) if no settlement method is
selected, (ii) a Suspension Period exists during the
Cash/Net Stock Notice Period, but only to the extent
that Party A has been unable as a result thereof to
purchase Shares in an amount equal to the Settlement
Shares prior to the Settlement Date and has provided
notice to such effect to Party B, or (iii) a Stock
Borrow Event or any of the events specified in
paragraphs (b), (c) or (f) under "Acceleration
Events" in this Confirmation has occurred.
Physical On any Settlement Date in respect of which Party B
Settlement: has elected, or is deemed to have elected in whole or
in part, Physical Settlement, Party B shall deliver
to Party A a number of Shares equal to the Settlement
Shares for which Physical Settlement applies on such
Settlement Date, and Party A shall deliver to Party
B, by wire transfer of immediately available funds to
an account designated by Party B, an amount in cash
equal to the Physical Settlement Amount for such
Settlement Date, on a delivery versus payment basis.
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Physical For any Settlement Date in respect of which Party B
Settlement has elected, or is deemed to have elected, Physical
Amount: Settlement, an amount in cash equal to the product of
(i) the Forward Price on such Settlement Date, as the
case may be, and (ii) the number of Settlement Shares
for which Physical Settlement applies on such
Settlement Date.
Cash Settlement: On any Settlement Date in respect of which Party B
has elected Cash Settlement, if the Cash Settlement
Amount is a positive number, Party A will pay the
Cash Settlement Amount to Party B. If the Cash
Settlement Amount is a negative number, Party B will
pay the absolute value of the Cash Settlement Amount
to Party A. Such amounts shall be paid on the
Settlement Date.
Cash Settlement An amount determined by the Calculation Agent equal
Amount: to: (i)(A) the Forward Price on such Settlement Date,
as the case may be, minus (B) the average price of
the Shares purchased by Party A in order to close-out
its trading activities pursuant to the Transaction
(the "Close-out Shares"), plus $0.02, multiplied by
(ii) the Settlement Shares for which Cash Settlement
or Net Stock Settlement applies on such Settlement
Date.
Net Stock On any Settlement Date in respect of which Party B
Settlement: has elected Net Stock Settlement, if the Cash
Settlement Amount is a (i) positive number, Party A
shall deliver a number of Shares to Party B equal to
the Net Stock Settlement Shares, and (ii) negative
number, Party B shall deliver a number of Shares to
Party A equal to the Net Stock Settlement Shares.
Net Stock With respect to a Settlement Date, the absolute value
Settlement Shares: of the Cash Settlement Amount divided by the fair
market value per share of the Shares as determined
by the Calculation Agent, with
the number of Shares rounded up in the event
such calculation results in a fractional number.
Settlement USD.
Currency:
Failure to Applicable.
Deliver:
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Suspension of Cash or
Net Stock Settlement:
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Suspension Period: Any day on which Party A determines based on the
advice of counsel that Cash or Net Stock Settlement
may violate Rules 10b-5 or 10b-18 of the Securities
Exchange Act of 1934 (the "Exchange Act"), any
applicable securities laws hereinafter enacted or a
change in the interpretation of any existing
applicable securities laws. Party A shall notify
Party B if it receives such advice from its counsel.
Notwithstanding any provision in this Agreement to
the contrary, Physical Settlement shall apply if a
Suspension Period exists during the Cash/Net Stock
Notice Period, but only to the extent that Party A
has been unable as a result thereof to purchase
Shares in an amount equal to the Settlement Shares
prior to the Settlement Date and has provided notice
to such effect to Party B.
Adjustments:
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Method of Calculation Agent Adjustment. Notwithstanding
Adjustment: anything in the Equity Definitions to the contrary,
the Calculation Agent may make an adjustment pursuant
to Calculation Agent Adjustment to any one or more of
the Base Amount, the Forward Price and any other
variable relevant to the settlement or payment terms
of the Transaction.
Additional If, in Party A's sole judgment, the actual cost to
Adjustment: Party A, over any one month period, of borrowing a
number of Shares equal to the Base Amount to hedge
its exposure to the Transaction exceeds a weighted
average rate equal to 75 basis points per annum, the
Calculation Agent shall reduce the Forward Price in
order to compensate Party A for the amount by which
such cost exceeded a weighted average rate equal to
75 basis points per annum during such period. The
Calculation Agent shall notify Party B prior to
making any such adjustment to the Forward Price and,
upon the request of Party B, Party A shall provide an
itemized list of its stock loan costs for the
applicable one month period.
Extraordinary Events:
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(a) Consequences of Merger Events:
Share-for-Share: Cancellation and Payment.
Share-for-Other: Cancellation and Payment.
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Share-for-Combined: Cancellation and Payment.
(b) Nationalization,
Insolvency
or Delisting: Cancellation and Payment.
Delisting: The definition of "Delisting" in Section 12.6 of the
Equity Definitions shall be deleted in its entirety
and replaced with the following: "Delisting" means
that the Exchange announces that pursuant to the
rules of such Exchange, the Shares cease (or will
cease) to be listed, traded or publicly quoted on the
Exchange for any reason (other than a Merger Event or
Tender Offer) and are not immediately re-listed,
re-traded or re-quoted on the New York Stock
Exchange, the American Stock Exchange or the NASDAQ
NMS.
(c) Tender Offer: Applicable.
Consequences of Tender Offer:
Share-for-Share: Cancellation and Payment.
Share-for-Other: Cancellation and Payment.
Share-for-
Combined: Cancellation and Payment.
New Shares: The definition of "New Shares" in Section
12.1 of the Equity Definitions shall be
amended by deleting subsection (i) in its
entirety and replacing it with the
following: "(i) publicly quoted, traded or
listed on the New York Stock Exchange, the
American Stock Exchange or the NASDAQ NMS
and".
Party A shall be the determining party in connection with all Extraordinary
Events.
As provided hereinafter under "Acceleration Events," upon the occurrence of the
events specified in (d) and (e) thereof, Party B shall elect whether payment of
the Cancellation Amount is to be effected by Physical Settlement, Net Share
Settlement or Cash Settlement, provided that if Party B fails to do so, Physical
Settlement shall apply.
Additional Provisions:
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If a Merger Date or Tender Offer Date is scheduled to be after the Settlement
Date, the Calculation Agent will determine the economic effect on the
theoretical value of the Transaction of the announcement of a potential Merger
Event or Tender Offer Event (including without limitation any change in stock
loan rate or liquidity relevant to the Shares or to the Transaction)
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from the Announcement Date to the Settlement Date. If such economic effect is
material, the Calculation Agent will adjust the terms of the Transaction to
reflect such economic effect.
Account Details:
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Payments to Party A: To be advised under separate cover or
telephone confirmed prior to each Payment
Date.
Payments to Party B: To be advised under separate cover or
telephone confirmed prior to each Payment
Date.
Delivery of Shares to
Party A: To be advised.
3. Other Provisions:
Conditions to Effectiveness:
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The effectiveness of this Confirmation on the Effective Date shall be subject to
(i) the condition that the representations and warranties of Party B contained
in the Underwriting Agreement, dated the date hereof (the "Underwriting
Agreement"), among Party B, Party A and RBCCM, as agent to Party A and as
representative of the several underwriters named therein, and any certificate
delivered pursuant thereto by Party B be true and correct on the Effective Date
as if made as of the Effective Date, (ii) the condition that Party B have
performed all of the obligations required to be performed by it under the
Underwriting Agreement on or prior to the Effective Date, (iii) the satisfaction
of all of the conditions set forth in Section 7 of the Underwriting Agreement
and (iv) the condition that the following has not occurred: Party A is unable to
borrow and deliver for sale a number of Shares equal to the Base Amount or, in
Party A's sole judgment, either it is impracticable to do so or Party A would
incur a stock loan cost of more than a rate equal to 75 basis points per annum
to do so (in which event this Confirmation shall be effective but the Base
Amount for the Transaction shall be reduced to the number of Shares Party A is
required to deliver in accordance with Section 3 of the Underwriting Agreement).
Additional Representations, Warranties and Agreements of Party B: Party B hereby
represents and warrants to, and agrees with, Party A as of the date hereof that:
(a) Any Shares, when issued and delivered in accordance with the
terms of the Transaction, will be duly authorized and validly
issued, fully paid and nonassessable, and the issuance thereof
will not be subject to any preemptive or similar rights.
(b) Party B has reserved and will keep available, free from
preemptive rights, out of its authorized but unissued Shares,
solely for the purpose of issuance upon settlement of the
Transaction as herein provided, the full number of Shares as
shall then be issuable upon Physical Settlement of the
Transaction. All Shares so issuable shall, upon such issuance,
be accepted for listing on the Exchange.
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(c) Party B is not insolvent, nor will Party B be rendered
insolvent as a result of the Transaction.
(d) After giving notice of its intent to elect Cash Settlement or
Net Stock Settlement, neither Party B nor any of its
affiliates shall take any action that would cause any
purchases of Shares in connection with any such Cash
Settlement or Net Stock Settlement of the Transaction not to
comply with Rule 10b-18 under the Exchange Act.
(e) Party B is an "eligible contract participant" (as such term is
defined in Section 1(a)(12) of the Commodity Exchange Act, as
amended).
(f) Party B agrees not to repurchase any Shares if, immediately
following such repurchase, the Base Amount would be equal to
or greater than 8% of the number of then-outstanding Shares.
(g) Party B agrees to provide Party A at least 30 days' written
notice (an "Issuer Repurchase Notice") prior to executing any
repurchase of Shares by Party B or any of its subsidiaries,
whether out of profits or capital or whether the consideration
for such repurchase is cash, securities or otherwise (an
"Issuer Repurchase"), that alone or in the aggregate would
result in the Base Amount Percentage (as defined below) being
(i) equal to or greater than 7% of the outstanding Shares and
(ii) greater by 0.5% or more than the Base Amount Percentage
at the time of the immediately preceding Issuer Repurchase
Notice (or in the case of the first such Issuer Repurchase
Notice, greater than the Base Amount Percentage as of the date
hereof). The "Base Amount Percentage" as of any day is the
fraction (1) the numerator of which is the Base Amount and (2)
the denominator of which is the number of Shares outstanding
on such day.
(h) No filing with, or approval, authorization, consent, license
registration, qualification, order or decree of, any court or
governmental authority or agency, domestic or foreign, is
necessary or required for the execution, delivery and
performance by Party B of this Confirmation and the
consummation of the Transaction (including, without
limitation, the issuance and delivery of Shares on any
Settlement Date) except (i) such as have been obtained under
the Securities Act, and (ii) as may be required to be obtained
under state securities laws.
(i) In addition to any other requirements set forth herein, Party
B agrees not to elect Cash Settlement or Net Stock Settlement
if such settlement would result in a violation of the U.S.
federal securities laws or any other federal or state law or
regulation applicable to Party B.
(j) Party B is not entering into the Transaction on behalf of or
for the accounts of any other person or entity, and will not
transfer or assign its obligations under the Transaction or
any portion of such obligations to any other person or entity
except in compliance with applicable laws and the terms of the
Transaction.
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(k) Party B represents that any Registration Statement (as defined
below), for purposes of facilitating Party A's hedging of the
Transaction, at the time the same becomes effective, will not
contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or
necessary to make the statements therein not misleading. Party
B represents that any prospectus delivered to Party A in
connection with sales made under the Registration Statement
(as such prospectus may be supplemented from time to time)
will not include an untrue statement of a material fact or
omit to state a material fact required to be stated therein or
necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading.
(l) Neither Party A nor any of its affiliates has advised Party B
with respect to any legal, regulatory, tax, accounting or
economic consequences arising from the Transaction, and
neither Party A nor any of its affiliates is acting as agent
(other than RBCCM as dual agent if specified above), or
advisor for Party B in connection with the Transaction.
(m) Each of Party B's required filings under all applicable
securities laws have been filed and that, as of the respective
dates thereof, such filings did not include any untrue
statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the
statements therein not misleading.
(n) Party B is not entering into the Transaction to create actual
or apparent trading activity in the Shares (or any security
convertible into or exchangeable for Shares), to manipulate
the price of the Shares (or any security convertible into or
exchangeable for Shares).
(o) Party B has not entered into any obligation that would
contractually limit it from effecting Physical Settlement, Net
Share Settlement or Cash Settlement under the Transaction and
it agrees not to enter into any such obligation during the
term of the Transaction.
Additional Provisions:
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(a) A registration statement ("Registration Statement"), which may
be a shelf registration statement filed pursuant to Rule 415
under the Securities Act of 1933 (the "Securities Act"),
covering public resale of at least the number of Shares to be
purchased by Party A shall have been filed with, and declared
effective by, the Securities and Exchange Commission no later
than one Scheduled Trading Day prior to the Trade Date and
such Registration Statement shall continue to be in effect at
all times to and including the date that Party A or its
affiliate(s) has fully and completely established its hedge.
(b) The contents of such Registration Statement and of any
prospectus supplement to the prospectus included therein
(including, without limitation, any sections describing the
plan of distribution) shall be reasonably satisfactory to
Party A.
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(c) Party A shall have been afforded a reasonable opportunity to
conduct a due diligence investigation with respect to Party B
customary in scope for transactions pursuant to which Party A
acts as an underwriter of equity securities and the results of
such investigation are satisfactory to Party A, in its
discretion, and
(d) As of the Trade Date, the Underwriting Agreement shall have
been entered into with Party A in connection with the public
resale by Party A of the Shares comprising Party A's hedge.
Compliance with Securities Laws:
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Party A represents and warrants as follows:
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(a) in connection with bids and purchases of Shares in connection
with the Transaction, Party A shall comply, or cause
compliance, with the timing and volume provisions of Rule
10b-18(b)(2) and (4) under the Exchange Act as if such
provisions were applicable to such bids and purchases;
(b) in connection with bids and purchases of Shares in connection
with the Transaction, Party A shall use its best efforts to
comply, or cause compliance, with the price provisions of Rule
10b-18(b)(3) under the Exchange Act; provided, however, that
Party A shall not be obligated to comply with clauses (a) and
(b) above in the event and only to the extent that Party A is
required to purchase any Shares as a result of an Acceleration
Event (as hereinafter defined).
Covenant of Party B:
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The parties acknowledge and agree that any Shares delivered by Party B to Party
A on any Settlement Date and returned by Party A to securities lenders from whom
Party A borrowed Shares in connection with hedging its exposure to the
Transaction will be freely saleable without further registration or other
restrictions under the Securities Act in the hands of those securities lenders.
Accordingly, Party B agrees that the Settlement Shares that it delivers to Party
A on each Settlement Date will not bear a restrictive legend and that such
Settlement Shares will be deposited in, and the delivery thereof shall be
effected through the facilities of, the Clearance System.
Covenant of Party A:
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Unless the provisions set forth below under "Private Placement Procedures" shall
be applicable, Party A shall use any Shares delivered by Party B to Party A on
any Settlement Date to return to securities lenders to close out open stock
loans, if any, with respect to Shares.
Acceleration Events: An Acceleration Event shall occur if:
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(a) Stock Borrow Event. Notwithstanding any other provision
hereof, if, in the judgment of the Calculation Agent, Party A
is unable to hedge its exposure to the Transaction because (i)
of the lack of sufficient Shares being made available for
Share borrowing by lenders or (ii) it is otherwise
commercially impracticable or
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economically unfeasible, including, without limitation, in
connection with Merger Events, Tender Offers, partial tender
offers or similar transactions (each of (i) and (ii), a "Stock
Borrow Event"), then Party A shall have the right to designate
any Scheduled Trading Day to be a Settlement Date on at least
two Scheduled Trading Days' notice, and to select the number
of Settlement Shares for such Settlement Date; provided that
the number of Settlement Shares for any Settlement Date so
designated by Party A shall not exceed the number of Shares as
to which such inability exists, and provided further that
Physical Settlement shall apply at the Forward Price.
(b) Stock Price. Notwithstanding any other provision hereof, if
the closing sale price per Share on the Exchange for the
regular trading session on any Exchange Business Day occurring
after the Trade Date is less than or equal to $30.00, Party A
shall have the right to designate any Scheduled Trading Day to
be a Settlement Date on at least three Scheduled Trading Days'
notice, and to select the number of Settlement Shares for such
Settlement Date. Upon the designation of such Settlement Date,
Physical Settlement shall apply.
(c) Dividends and Other Distributions. Notwithstanding anything to
the contrary herein contained, in the Agreement or in the
Definitions, if on any day after the Trade Date, Party B
declares a distribution, issue or dividend to existing holders
of the Shares of (i) an extraordinary cash dividend (which
shall include any cash dividend other than regular semi-annual
cash dividends of $0.12 or less in 2005 per Share payable in
February 2005 and August 2005), (ii) a regular semi-annual
dividend in an amount greater than $0.12 in 2005 per Share per
semi-annual period or (iii) any other type of securities
(other than Shares, which may constitute a Potential
Adjustment Event), rights or warrants or other assets, in any
case for payment (cash or other consideration) at less than
the prevailing market price as determined by Party A, then
Party A shall have the right to designate any Scheduled
Trading Day to be a Settlement Date for the entire Transaction
on at least one Scheduled Trading Day's notice. Upon the
designation of such Settlement Date, Physical Settlement shall
apply.
(d) Board Approval of Merger. Notwithstanding any other provision
hereof, if on any day occurring after the Trade Date the board
of directors of Party B votes to approve any action that, if
consummated, would constitute a Merger Event (as defined in
the Equity Definitions), then Party A shall have the right to
designate any Scheduled Trading Day to be a Settlement Date
for the entire Transaction on at least three Scheduled Trading
Days' notice. Party B shall notify Party A of any such vote
within one Scheduled Trading Day and upon the designation of
such Settlement Date, Party B shall promptly notify Party A of
the settlement method, provided that if Party B fails to do
so, Physical Settlement shall apply.
(e) Agreement Early Termination Date. Notwithstanding anything to
the contrary herein, in the Agreement or in the Definitions,
if either Party A or Party B has the right to designate an
Early Termination Date pursuant to Section 6 of the Agreement,
such party shall have the right to designate any Scheduled
Trading
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Day to be a Settlement Date for the entire Transaction on at
least three Scheduled Trading Days' notice. Upon the
designation of such Settlement Date, Party B shall promptly
notify Party A of the settlement method, provided that if
Party B fails to do so, Physical Settlement shall apply.
(f) Other Events. Notwithstanding anything to the contrary herein,
in the Agreement or in the Definitions, if a Nationalization,
Insolvency, Insolvency Filing, Delisting or Change in Law
occurs, Party A shall have the right to designate any
Scheduled Trading Day to be a Settlement Date for the entire
Transaction on at least three Scheduled Trading Days' notice,
and Party A shall be the Determining Party. Upon the
designation of such Settlement Date, Physical Settlement shall
apply.
Private Placement Procedures
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If Party B is unable to comply with the provisions of "Covenant of Party B"
above because of a change in law, or Party A otherwise determines that in its
reasonable opinion any Shares to be delivered to Party A by Party B pursuant to
Physical Settlement or Net Share Settlement may not be freely returned by Party
A to securities lenders as described under "Covenant of Party B" above, then
delivery of any such Shares (the "Restricted Shares") shall be effected pursuant
to this provision, unless waived by Party A.
If Party B delivers the Restricted Shares pursuant to this provision (a "Private
Placement Settlement"), then delivery of Restricted Shares by Party B shall be
effected in customary private placement procedures with respect to such
Restricted Shares reasonably acceptable to Party A; provided that Party B may
not elect a Private Placement Settlement if, on the date of its election, it has
taken, or caused to be taken, any action that would make unavailable either the
exemption pursuant to Section 4(2) of the Securities Act for the sale by Party B
to Party A (or any affiliate designated by Party A) of the Restricted Shares or
the exemption pursuant to Section 4(1) or Section 4(3) of the Securities Act for
resales of the Restricted Shares by Party A (or any such affiliate of Party A).
The Private Placement Settlement of such Restricted Shares shall include
customary representations, covenants, blue sky and other governmental filings
and/or registrations, indemnities to Party A, due diligence rights (for Party A
or any designated buyer of the Restricted Shares by Party A), opinions and
certificates, and such other documentation as is customary for private placement
agreements, all reasonably acceptable to Party A. In the case of a Private
Placement Settlement, Party A shall, in its sole discretion, adjust the amount
of Restricted Shares to be delivered to Party A hereunder in a commercially
reasonable manner to reflect the fact that such Restricted Shares may not be
freely returned to securities lenders by Party A and may only be saleable by
Party A at a discount to reflect the lack of liquidity in Restricted Shares.
Notwithstanding the Agreement or this Confirmation, the date of delivery of such
Restricted Shares shall be the Scheduled Trading Day following notice by Party A
to Party B of the number of Restricted Shares to be delivered pursuant to this
provision. For the avoidance of doubt, delivery of Restricted Shares shall be
due as set forth in the previous sentence and not be due on the Settlement Date
that would otherwise be applicable.
13
Transfer and Assignment:
- ------------------------
Neither the Transaction, any interest or obligation in or under the Transaction
may be transferred or assigned (whether by way of security or otherwise) by
either party without the prior written consent of the other party, except that a
party may make such a transfer of the Transaction pursuant to a consolidation or
amalgamation with, or merger with or into, or transfer of all or substantially
all of its assets to, another entity. Any purported transfer or assignment that
is not in compliance with this paragraph shall be void.
Matters relating to Agent:
- --------------------------
(a) As a broker-dealer registered with the U.S. Securities and
Exchange Commission, RBCCM, in its capacity as agent (the
"Agent"), will be responsible for (i) effecting the
Transaction, (ii) issuing all required confirmations and
statements to Party A and Party B and (iii) maintaining books
and records relating to the Transaction.
(b) RBCCM shall act as "agent" for Party A and Party B within the
meaning of Rule 15a-6 under the Exchange Act in connection
with the Transaction.
(c) The Agent, in its capacity as such, shall have no
responsibility or liability (including, without limitation, by
way of guarantee, endorsement or otherwise) to Party A or
Party B or otherwise in respect of the Transaction, including,
without limitation, in respect of the failure of Party A or
Party B to pay or perform under this Confirmation, except for
its gross negligence or willful misconduct in performing its
duties as Agent hereunder.
(d) Each of Party A and Party B agree to proceed solely against
the other to collect or recover any securities or monies owing
to Party A or Party B, as the case may be, in connection with
or as a result of the Transaction.
(e) The Agent will be Party A's agent for service of process for
the purpose of Section 13(c) of the Agreement.
Maximum Share Delivery:
- -----------------------
Notwithstanding any other provision of this Confirmation, in no event will Party
B be required to deliver on any Settlement Date, whether pursuant to Physical
Settlement, Net Stock Settlement, Cash Settlement or any Private Placement
Settlement, more than 2,600,000 Shares to Party A.
Limit on Beneficial Ownership:
- ------------------------------
Notwithstanding any other provisions hereof, Party A shall not be entitled to
receive Shares hereunder (whether in connection with the purchase of Shares on
any Settlement Date or otherwise) to the extent (but only to the extent) that
such receipt would result in RBC directly or indirectly beneficially owning (as
such term is defined for purposes of Section 13(d) of the Exchange Act) at any
time in excess of 9.5% of the outstanding Shares. Any purported delivery
hereunder shall be void and have no effect to the extent (but only to the
extent) that such delivery
14
would result RBC directly or indirectly so beneficially owning in excess of 9.5%
of the outstanding Shares. If any delivery owed to Party A hereunder is not
made, in whole or in part, as a result of this provision, Party B's obligation
to make such delivery shall not be extinguished and Party B shall make such
delivery as promptly as practicable after, but in no event later than one
Scheduled Trading Day after, Party A gives notice to Party B that such delivery
would not result in RBC directly or indirectly so beneficially owning in excess
of 9.5% of the outstanding Shares.
Miscellaneous:
- --------------
Non-Reliance: Applicable
Additional Acknowledgements: Applicable
4. Agreement is further supplemented by the following provisions:
Share Settlement upon Certain Events:
- -------------------------------------
Notwithstanding anything to the contrary herein, in the Agreement or in the
Definitions, if at any time (i) an Early Termination Date occurs and Party B
would be required to make a payment pursuant to Sections 6(d) and 6(e) of the
Agreement, or (ii) a Merger Event occurs and Party B would be required to make a
payment pursuant to Sections 12.2 and 12.7 of the Equity Definitions, then in
lieu of any such payment, Party B at its election, may deliver to Party A, at
the time such payment would have been due and in the manner provided under
"Physical Settlement" in the Equity Definitions, a number of Shares (or, in the
case of a Merger Event, common equity securities of the surviving entity) equal
to the quotient obtained by dividing (A) the amount that would have been so
payable by (B) the fair market value per Share (or per unit of such common
equity security) of the Shares (or units) so delivered at the time of such
delivery, as determined by the Calculation Agent (which fair market value shall
take into account whether the Shares so delivered are freely tradeable). Upon
Party B's election to deliver Shares, the Transaction will not be considered for
purposes of determining any Early Termination Amount under Section 6(e) of the
Agreement.
Agreement Regarding Set-off:
- ----------------------------
Notwithstanding Section 6(f) or any other provision of the Agreement or any
other agreement between the parties to the contrary, the obligations of Party B
hereunder are not secured by any collateral. Obligations under the Transaction
shall not be set off against any other obligations of the parties, whether
arising under the Agreement, this Confirmation, under any other agreement
between the parties hereto, by operation of law or otherwise, and no other
obligations of the parties shall be set off against obligations under the
Transaction, whether arising under the Agreement, this Confirmation, under any
other agreement between the parties hereto, by operation of law or otherwise,
and each party hereby waives any such right of set off. The last sentence of the
first paragraph of Section 6(e) of the Agreement shall not apply with respect to
the Transaction to the extent that any of the events described in Section
5(a)(vii) of the Agreement occurs with respect to Party B.
15
Bankruptcy Rights:
- ------------------
In the event of Party B's bankruptcy, Party A acknowledges and agrees that this
Confirmation is not intended to convey to it rights with respect to the
Transaction that are senior to the claims of common stockholders; provided,
however, that nothing herein shall limit or shall be deemed to limit Party A's
right to pursue remedies in the event of a breach by Party B of its obligations
and agreements with respect to this Confirmation and the Agreement; and provided
further, that nothing herein shall limit or be deemed to limit Party A's rights
in respect of any transaction other than the Transaction. For the avoidance of
doubt, the parties acknowledge and agree that Party A's rights with respect to
any other claim arising from the Transaction prior to Party B's bankruptcy shall
remain in full force and effect and shall not be otherwise abridged or modified
in connection herewith.
Account Information:
- --------------------
Account Details for Party A: Chase Manhattan Bank, New York
ABA 021-000-021
A/C# 920-1-033363
Ref: US Transit 1267 A/C 204-1499
RBCCM REF: NY-DRAFT
Account Details for Party B: Lake Forest Bank & Trust
Lake Forest, Illinois
ABA No. 0719-25334
Acct. No. 180130
Ref: Wintrust Financial Corporation
Party A address, telephone and facsimile number for purposes of giving notice:
- ------------------------------------------------------------------------------
Any notice or other communication required or permitted to be given to Party A
(for matters other than operational matters) with respect to this Confirmation
shall be delivered in person or given by facsimile transmission to Party A at
the following address:
RBC Capital Markets Corporation
Attention: Director, Independent Middle Office
One Liberty Plaza - 2nd Floor
165 Broadway
New York, New York 10006-1404 U.S.A.
Facsimile No.: (212) 428-3053
Any notice or other communication concerning operational matters should be sent
by facsimile to RBC Capital Markets Corporation, at: Attention: Michael
Borenstein; Phone: (212) 858-7270; Fax: (212) 858-7033.
Any notice or other communication required or permitted to be given Party B with
respect to this Confirmation shall be delivered in person or given by facsimile
transmission to Party B at the following address:
16
Wintrust Financial Corporation
Attention: David A. Dykstra, Sr. Executive V.P. & COO
727 North Bank Lane
Lake Forest, Illinois 60045 U.S.A.
Facsimile No.: (847) 615-4091
WAIVER OF RIGHT TO TRIAL BY JURY. EACH PARTY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT
OF ANY SUIT, ACTION OR PROCEEDING RELATING TO THIS CONFIRMATION OR ANY CREDIT
SUPPORT DOCUMENT. Each party (i) certifies that no representative, agent or
attorney of the other party has represented, expressly or otherwise, that such
other party would not, in the event of such a suit action or proceeding, seek to
enforce the foregoing waiver and (ii) acknowledges that it and the other party
have been induced to enter into this Confirmation by, among other things, the
mutual waivers and certifications in this Section.
5. ISDA Master Agreement
With respect to the Agreement, Party A and Party B each agree as follows:
SPECIFIED ENTITIES:
(a) in relation to Party A, for the purposes of:
Section 5(a)(v): None
Section 5(a)(vi): None
Section 5(a)(vii): None
Section 5(b)(iv): None
and (b) in relation to Party B, for the purposes of:
Section 5(a)(v): any Affiliate of Party B
Section 5(a)(vi): any Affiliate of Party B
Section 5(a)(vii): any Affiliate of Party B
Section 5(b)(iv): any Affiliate of Party B
"SPECIFIED TRANSACTION" will have the meaning specified in Section 14 of the
Agreement.
The "CROSS DEFAULT" provisions of Section 5(a)(vi) of the Agreement will apply
to Party A and to Party B.
"SPECIFIED INDEBTEDNESS" will have the meaning specified in Section 14 of the
Agreement. If such provisions apply:- The "." at the end of the definition of
"Specified Indebtedness" in Section 14 of this Agreement shall be deleted and
replaced by the following: ", except that such term shall not include
obligations in respect of deposits received in the ordinary course of either
party's banking business, if any."
17
"THRESHOLD AMOUNT" with respect to Party A means USD 50,000,000 (or the U.S.
dollar equivalent in any other currency or currencies) and with respect to
Party B means USD 10,000,000.
The "CREDIT EVENT UPON MERGER" provisions of Section 5(b)(v) of the Agreement
will apply to Party A and to Party B.
The "AUTOMATIC EARLY TERMINATION" provision of Section 6(a) of the Agreement
will not apply to Party A and to Party B.
"TERMINATION CURRENCY" means USD.
ADDITIONAL TERMINATION EVENT. The following shall constitute an Additional
Termination Event: None
TAX REPRESENTATIONS:
(a) For the purpose of Section 3(e) of the Agreement, each party
represents to the other party that it is not required by any
applicable law, as modified by the practice of any relevant
governmental revenue authority, of any Relevant Jurisdiction
to make any deduction or withholding for or on account of any
Tax from any payment (other than interest under Section 2(d),
6(d)(ii), or 6(e) of the Agreement) to be made by it to the
other party under the Agreement. In making this
representation, each party may rely on (i) the accuracy of any
representations made by the other party pursuant to Section
3(f) of the Agreement, (ii) the satisfaction of the agreement
contained in Section 4(a)(i) or 4(a)(iii) of the Agreement,
and the accuracy and effectiveness of any document provided by
the other party pursuant to Section 4(a)(i) or 4(a)(iii) of
the Agreement, and (iii) the satisfaction of the agreement of
the other party contained in Section 4(d) of the Agreement;
provided that it will not be a breach of this representation
where reliance is placed on clause (ii) above and the other
party does not deliver a form or document under Section
4(a)(iii) of the Agreement by reason of material prejudice to
its legal or commercial position.
(II) For the purpose of Section 3(f) of the Agreement, each party
makes the following representations to the other party:
(i) Party A represents that (i) it a bank organized under
the laws of Canada and (ii) it is a foreign
corporation for U.S. federal tax purposes.
In respect of a Transaction the income from which is
attributable to its New York office, each payment
received or to be received by it in connection with
this Agreement will be effectively connected with its
conduct of a trade or business in the United States.
(ii) Party B represents that it is a corporation
incorporated under the laws of Illinois and (ii) it
is a U.S. person for U.S. federal tax purposes.
18
TAX FORMS: For the purpose of Sections 3(d), 4(a)(i) and (ii) of the Agreement,
each party agrees to deliver the following documents:
Tax forms, documents or certificates to be delivered are:
Each party agrees to complete (accurately and in a manner reasonably
satisfactory to the other party), execute, and deliver to the other party,
United States Internal Revenue Service Form W-9 or W-8 BEN, or any successor of
such form(s): (i) before the first payment date under this agreement; (ii)
promptly upon reasonable demand by the other party; and (iii) promptly upon
learning that any such form(s) previously provided by the other party has become
obsolete or incorrect.
Other documents to be delivered:
- --------------------------------
COVERED BY
PARTY REQUIRED TO DOCUMENT REQUIRED SECTION 3(d)
DELIVER DOCUMENT BE DELIVERED WHEN REQUIRED REPRESENTATION
- ----------------- ----------------- ------------- --------------
Party A and Party B Evidence of the authority and Upon or before execution and Yes
true signatures of each delivery of this Confirmation
official or representative
signing this Confirmation
Party B Certified copy of the Upon or before execution and Yes
resolution of the Board of delivery of this Confirmation
Directors or equivalent
document authorizing the
Transaction
19
COVERED BY
PARTY REQUIRED TO DOCUMENT REQUIRED SECTION 3(d)
DELIVER DOCUMENT BE DELIVERED WHEN REQUIRED REPRESENTATION
- ----------------- ----------------- ------------- --------------
Party A With respect to any payments (1) Before the first payment Yes
described in this Confirmation, date under this Agreement (2)
U.S. Internal Revenue Service before December 31 of each
Form W-8ECI (or any successor third succeeding calendar year,
of such Form), completed (3) promptly upon the earlier
accurately and in a manner of reasonable demand by Party B
reasonably acceptable to and learning that any such
party B Form is required, (4) prior to
the expiration or obsolescence
of any previously delivered Form,
and (5) promptly upon the
information on any such previously
delivered Form becoming inaccurate
or incorrect
Party B U.S. Internal Revenue Service (1) Before the first payment Yes
Form W-9 (or any successor date under this Agreement
of such Form), completed (2) promptly upon the earlier of
accurately and in a manner reasonable demand by Party A
reasonably acceptable to and learning that any such Form
Party A is required, (3) prior to the
expiration or obsolescence of any
previously delivered Form, and
(4) promptly upon the information
on any such previously delivered
Form becoming inaccurate or
incorrect
20
PROCESS AGENT: For the purpose of Section 13(c) of the Agreement, Party A
appoints as its process agent:
RBC Capital Markets Corporation
Attention: General Counsel, Law Department
One Liberty Plaza - 2nd Floor
165 Broadway
New York, New York 10006-1404 U.S.A.
Telephone No.: 212 858 7111
Party B does not appoint a Process Agent.
MULTIBRANCH PARTY. For the purpose of Section 10(c) of the Agreement, neither
Party A nor Party B is a Multibranch Party.
CREDIT SUPPORT DOCUMENT.
Party A: None
Party B: None
CREDIT SUPPORT PROVIDER.
With respect to Party A: Not Applicable, and with respect to Party B: Not
Applicable.
GOVERNING LAW. This Confirmation will be governed by, and construed in
accordance with, the laws of the State of New York.
NETTING OF PAYMENTS. The provisions of Section 2(c) of the Agreement shall not
be applicable to the Transaction; provided, however, that with respect to this
Agreement or any other ISDA Master Agreement between the parties, any Share
delivery obligations on any day of Party B, on the one hand, and Party A, on the
other hand, shall be netted. The resulting Share delivery obligation of a party
upon such netting shall be rounded down to the nearest number of whole Common
Shares, such that neither party shall be required to deliver any fractional
Common Shares.
ACCURACY OF SPECIFIED INFORMATION. Section 3(d) of the Agreement is hereby
amended by adding in the third line thereof after the word "respect" and before
the period the words "or, in the case of audited or unaudited financial
statements or balance sheets, a fair presentation of the financial condition of
the relevant person."
BASIC REPRESENTATIONS. Section 3(a) of the Agreement is hereby amended by the
deletion of "and" at the end of Section 3(a)(iv); the substitution of a
semicolon for the period at the end of Section 3(a)(v) and the addition of
Sections 3(a)(vi), as follows:
ELIGIBLE CONTRACT PARTICIPANT; LINE OF BUSINESS. It is an "eligible
contract participant" as defined in the Commodity Futures Modernization
Act of 2000 and it has entered into
21
this Confirmation and the Transaction in connection with its business
or a line of business (including financial intermediation), or the
financing of its business.
AMENDMENT OF SECTION 3(a)(iii). Section 3(a)(iii) of the Agreement is modified
to read as follows:
NO VIOLATION OR CONFLICT. Such execution, delivery and performance do
not materially violate or conflict with any law known by it to be
applicable to it, any provision of its constitutional documents, any
order or judgment of any court or agency of government applicable to it
or any of its assets or any material contractual restriction relating
to Specified Indebtedness binding on or affecting it or any of its
assets.
AMENDMENT OF SECTION 3(a)(iv). Section 3(a)(iv) of the Agreement is modified by
inserting the following at the beginning thereof:
"To such party's best knowledge,"
ADDITIONAL REPRESENTATIONS:
PARTY B REPRESENTATIONS. Party B (i) has such knowledge and experience in
financial and business affairs as to be capable of evaluating the merits and
risks of entering into the Transaction; (ii) has consulted with its own legal,
financial, accounting and tax advisors in connection with the Transaction; and
(iii) is entering into the Transaction for a bona fide business purpose to hedge
an existing position.
Party B is not and has not been the subject of any civil proceeding of a
judicial or administrative body of competent jurisdiction that could reasonably
be expected to impair materially Party B's ability to perform its obligations
hereunder.
Party B will by the next succeeding Business Day notify Party A upon obtaining
knowledge of the occurrence of any event that would constitute an Event of
Default or a Potential Adjustment Event.
FDICIA REPRESENTATION. Each party represents that it is a "financial
institution" for purposes of Section 402 of the Federal Deposit Insurance
Corporation Improvement Act of 1991, as amended (the "Statute"), and the
regulations promulgated pursuant thereto because either (A) it is a broker or
dealer, a depository institution or a futures commission merchant (as such terms
are defined in the Statute) or (B) it will engage in financial contracts (as so
defined) as a counterparty on both sides of one or more financial markets (as so
defined) and either (I) had one or more financial contracts of a total gross
dollar value of at least $1 billion in notional principal amount outstanding on
any day during the previous 15-month period with counterparties that are not its
affiliates or (II) had total gross mark-to-market positions of at least
$100,000,000 (aggregated across counterparties) in one or more financial
contracts on any day during the previous 15-month period with counterparties
that are not its affiliates.
22
ACKNOWLEDGEMENTS:
(1) The parties acknowledge and agree that there are no other representations,
agreements or other undertakings of the parties in relation to the Transaction,
except as set forth in this Confirmation.
(2) The parties hereto intend for:
(a) the Transaction to be a "securities contract" as defined in
Section 741(7) of Title 11 of the United States Code (the
"Bankruptcy Code"), qualifying for the protections under
Section 555 of the Bankruptcy Code;
(b) a party's right to liquidate the Transaction and to exercise
any other remedies upon the occurrence of any Event of Default
under the Agreement with respect to the other party to
constitute a "contractual right" as defined in Section 560 of
the Bankruptcy Code;
(c) any cash, securities or other property provided as performance
assurance, credit, support or collateral with respect to the
Transaction to constitute "margin payments" as defined in the
Bankruptcy Code; and
(d) all payments for, under or in connection with the Transaction,
all payments for the Shares and the transfer of such Shares to
constitute "settlement payments" as defined in the Bankruptcy
Code.
AMENDMENT OF SECTION 6(d)(ii). Section 6(d)(ii) of the Agreement is modified by
deleting the words "on the day" in the second line thereof and substituting
therefor "on the day that is three Local Business Days after the day". Section
6(d)(ii) is further modified by deleting the words "two Local Business Days" in
the fourth line thereof and substituting therefor "three Local Business Days."
CONSENT TO RECORDING. Each party consents to the recording of the telephone
conversations of trading and marketing personnel of the parties and their
Affiliates in connection with this Confirmation.
SEVERABILITY. If any term, provision, covenant or condition of this
Confirmation, or the application thereof to any party or circumstance, shall be
held to be invalid or unenforceable in whole or in part for any reason, the
remaining terms, provisions, covenants, and conditions hereof shall continue in
full force and effect as if this Confirmation had been executed with the invalid
or unenforceable provision eliminated, so long as this Confirmation as so
modified continues to express, without material change, the original intentions
of the parties as to the subject matter of this Confirmation and the deletion of
such portion of this Confirmation will not substantially impair the respective
benefits or expectations of parties to this Agreement; provided, however, that
this severability provision shall not be applicable if any provision of Section
2, 5, 6 or 13 of the Agreement (or any definition or provision in Section 14 to
the extent that it relates to, or is used in or in connection with any such
Section) shall be so held to be invalid or unenforceable. If any term,
provision, covenant or condition of this Confirmation shall be held to be
invalid or unenforceable in whole or in part for any reason and the deletion of
23
such portion of this Confirmation would substantially impair the respective
benefits or expectations of parties to this Agreement, Party A and Party B shall
negotiate in good faith to make any changes to the Confirmation necessary to
best preserve the validity and enforceability of this Confirmation and the
economic terms of the Transaction to both parties to the fullest extent
possible.
AFFECTED PARTIES. For purposes of Section 6(e) of the Agreement, each party
shall be deemed to be an Affected Party in connection with Illegality and any
Tax Event.
[signature page follows]
24
Please confirm that the foregoing correctly sets forth the terms of our
agreement by executing the copy of this Confirmation enclosed for that purpose
and returning it to us or by sending to us a letter or telex substantially
similar to this letter, which letter or telex sets forth the material terms of
the Transaction to which this Confirmation relates and indicates agreement to
those terms.
Sincerely yours,
ROYAL BANK OF CANADA
BY ITS AGENT
RBC CAPITAL MARKETS CORPORATION
By: /s/ Steven C. Milke By: /s/ Bruce Runciman
---------------------------------- ----------------------------------
Name: Steven C. Milke Name: Bruce Runciman
Title: Managing Director Title: Managing Director
Accepted and confirmed as of
the date first above written:
WINTRUST FINANCIAL CORPORATION
By: /s/ David A. Dykstra
----------------------------------
Authorized Signatory
Name: David A. Dykstra
Title: Sr. Executive V.P. & COO
S-1
SCHEDULE I
FORWARD PRICE
REDUCTION
DATE AMOUNT IN USD
Trade Date $0.00
February 1, 2005 $0.12
August 1, 2005 $0.12
Maturity Date $0.00