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EXHIBIT 1.1
DRAFT: JULY 30, 1996
1,100,000 SHARES*
UNIONBANCORP, INC.
Common Stock
UNDERWRITING AGREEMENT
______________ , 1996
HOEFER & ARNETT INCORPORATED
353 Sacramento Street, 10th Floor
San Francisco, California 94111
Ladies and Gentlemen:
Pursuant to the terms of this Underwriting Agreement (this "Agreement"),
UnionBancorp, Inc., a Delaware corporation (the "Company"), proposes, subject
to the terms and conditions set forth herein, to issue and sell an aggregate of
1,100,000 shares of Common Stock, par value $1.00 per share (the "Common
Stock"), of the Company to Hoefer & Arnett Incorporated (the "Underwriter").
The Company has agreed to sell to the Underwriter, upon the terms and
conditions set forth in Section 2 hereof, up to an additional 165,000 shares of
Common Stock. The aggregate of 1,100,000 shares to be sold by the Company are
herein called the "Firm Shares" and the aggregate of 165,000 additional shares
to be sold by the Company are herein called the "Additional Shares." The Firm
Shares and the Additional Shares are hereinafter collectively referred to as
the "Shares."
Prior to the purchase and public offering of the Shares by the
Underwriter, the Company and the Underwriter shall enter into an agreement
substantially in the form of Exhibit A hereto (the "Pricing Agreement"). The
Pricing Agreement may take the form of an exchange of any standard form of
written telecommunication between the Company and the Underwriter and shall
specify such applicable information as is indicated in Exhibit A hereto. The
offering of the Shares will be governed by this Agreement, as supplemented by
the Pricing Agreement. From and after the date of the execution and delivery
of the Pricing Agreement, this Agreement shall be deemed to incorporate the
Pricing Agreement.
The Company is hereby advised that the Underwriter has agreed to make a
public offering of the Shares as soon after the Registration Statement has
become effective and the Pricing Agreement has been executed as in the judgment
of the Underwriter is advisable and to first offer the Shares upon the terms
set forth in the Prospectus.
The Company and the Underwriter hereby agree to the following matters with
respect to the purchase and sale of the Shares:
_______________
* Plus an option to purchase up to 165,000 Additional Shares to cover
over-allotments.
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SECTION 1. (A) REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The
Company represents and warrants to the Underwriter that:
(i) The Company has prepared and filed with the Securities and Exchange
Commission (the "Commission") in accordance with the provisions of the
Securities Act of 1933, as amended, and the rules and regulations of the
Commission thereunder (collectively, the "Act"), a registration statement on
Form S-1 (File No. 33-______), including a preliminary prospectus, relating to
the Shares and certain amendments thereto. The Company will next file with the
Commission one of the following: (A) prior to effectiveness of such
registration statement, a further amendment thereto, including the form of
final prospectus, (B) a final prospectus in accordance with Rules 430A and
424(b) under the Act or (C) a term sheet (the "Term Sheet") as described in and
in accordance with Rules 434 and 424(b) under the Act. As filed, the final
prospectus, if one is used, or the Term Sheet and the latest Preliminary
Prospectus, if a final prospectus is not used, shall include all Rule 430A
Information (as defined below). There have been or will promptly be delivered
to you three signed copies of such registration statement and amendments, three
copies of each exhibit filed therewith, and conformed copies of such
registration statement and amendments (but without exhibits) and of the related
preliminary prospectus or prospectuses and final forms of prospectus or Term
Sheet, if a Term Sheet is used, for the Underwriter. The term "Registration
Statement" as used in this Agreement shall mean such registration statement at
the time such registration statement becomes effective and, in the event any
amendment thereto becomes effective prior to the Closing Date (as hereinafter
defined), shall also mean such registration statement as so amended; provided,
however, that such term shall also include all Rule 430A Information deemed to
be included in such registration statement at the time such registration
statement becomes effective as provided by Rule 430A and, if a Term Sheet is
used, shall also include all information deemed to be included in such
registration statement at the time such registration statement becomes
effective as provided by Rule 434; provided, further, that if the Company files
a registration statement under the Act to register a portion of the Shares and
relies on Rule 462(b) for such registration statement to become effective upon
filing with the Commission (the "Rule 462 Registration Statement"), then any
reference to "Registration Statement" herein shall be deemed to be to both the
registration statement referred to above (No. 33-_______) and the Rule 462
Registration Statement, as each such registration statement may be amended
pursuant to the Act. The term "Preliminary Prospectus" as used in this
Agreement shall mean any preliminary prospectus relating to the Shares filed
with the Commission under the Act and the rules and regulations thereunder,
including any preliminary prospectus included in the Registration Statement at
the time it becomes effective that omits Rule 430A Information. The term
"Prospectus" as used in this Agreement shall mean: (X) the prospectus relating
to the Shares in the form in which it is first filed with the Commission
pursuant to Rule 424(b) under the Act; (Y) if a Term Sheet is not used and no
filing pursuant to Rule 424(b) under the Act is required, the form of final
prospectus included in the Registration Statement at the time the Registration
Statement becomes effective; or (Z) if a Term Sheet is used in lieu of a
prospectus, the Term Sheet in the form in which it is first filed with the
Commission pursuant to Rule 424(b) under the Act, together with the latest
Preliminary Prospectus included in the Registration Statement at the time it
becomes effective (such Term Sheet and Preliminary Prospectus are sometimes
collectively referred to herein as the "Rule 434 Prospectus"). The term "Rule
430A Information" as used in this Agreement shall mean information with respect
to the Shares and the offering thereof permitted to be omitted from the
Registration Statement when it becomes effective pursuant to Rule 430A under
the Act. The Securities Exchange Act of 1934, as amended, and the rules and
regulations of the Commission thereunder are hereinafter collectively referred
to as the "Exchange Act."
(ii) The Commission has not issued any order preventing or suspending the
use of any Preliminary Prospectus, and each Preliminary Prospectus complied in
all material respects when so filed with the requirements of the Act (except to
the extent that, in conformity with the Act, such Preliminary Prospectus is
subject to completion).
(iii) The Registration Statement in the form in which it becomes
effective and also in such form as it may be when the Pricing Agreement is
executed or any post-effective amendment to the Registration Statement shall
become effective, and the Prospectus when and in the form last filed with the
Commission as part of the Registration Statement prior to effectiveness or, if
applicable, first filed pursuant to Rule 424(b) under the Act, and when any
supplement or amendment thereto is filed with the Commission, each
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will comply in all material respects with the requirements of the Act, will not
at any such time contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading. This representation and warranty does not apply to statements
in or omissions from the Registration Statement or the Prospectus (or any
supplement or amendment thereto) made in reliance upon and in conformity with
information relating to the Underwriter furnished to the Company in writing by
such Underwriter specifically for use in the Registration Statement.
(iv) There is no contract or other document of a character required to be
described in the Registration Statement or Prospectus or to be filed as an
exhibit to the Registration Statement which is not described or filed as
required.
(v) McGladrey & Pullen, LLP, who are certifying to certain of the
financial statements of the Company, Prairie Bancorp, Inc., an Illinois
corporation ("Prairie") and Country Bancshares, Inc., an Illinois corporation
("Country") included in the Registration Statement and the Prospectus, are
independent public accountants as required by the Act.
(vi) The consolidated financial statements and schedules, together with
the notes thereto, of the Company included in the Registration Statement and
the Prospectus comply in all material respects with the Act and present fairly
the consolidated financial position of the Company as of the dates indicated,
and the consolidated results of operations, cash flows and changes in financial
position of the Company for the periods specified and the supporting schedules
included in the Registration Statement present fairly the information required
to be stated therein. The consolidated financial statements and schedules,
together with notes thereto, of Prairie and Country included in the
Registration Statement and the Prospectus comply in all material respects with
the Act and present fairly the consolidated financial position of Prairie and
Country, respectively, as of the dates indicated, and the consolidated results
of operations, cash flows and changes in financial position of Prairie and
Country, respectively, for the periods specified present fairly the information
required to be stated therein. All of such financial statements have been
prepared in conformity with generally accepted accounting principles applied on
a consistent basis throughout the entire periods involved except to the extent
disclosed therein.
The pro forma financial statements and other pro forma information
included in the Prospectus present fairly the information shown therein, have
been prepared in accordance with generally accepted accounting principles and
the Commission's rules and guidelines with respect to pro forma financial
statements and other pro forma information, have been properly compiled on the
pro forma basis described therein, and, in the opinion of the Company, the
assumptions used in the preparation thereof are reasonable and the adjustments
used therein are appropriate under the circumstances.
(vii) The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware, with full
corporate power and authority to own, lease and operate its properties and
conduct its business as described in the Registration Statement and Prospectus.
The Company is duly qualified to do business as a foreign corporation and in
good standing in each jurisdiction in which the ownership or leasing of its
properties or the conduct of its business requires such qualification, except
in any such case in which the failure to so qualify or be in good standing
would not have a material adverse effect upon the business of the Company and
its subsidiaries, taken as a whole; and no proceeding of which the Company has
knowledge has been instituted in any such jurisdiction, revoking, limiting or
curtailing, or seeking to revoke, limit or curtail, such power and authority or
qualification.
(viii) Each of the Company's subsidiaries has been duly incorporated and
is validly existing as a corporation in good standing under the laws of its
jurisdiction of incorporation, with full corporate power and authority to own,
lease and operate its properties and conduct its business as described in the
Registration Statement and Prospectus. Each of the Company's subsidiaries is
duly qualified to do business as a foreign corporation in good standing in each
jurisdiction in which the ownership or leasing of its properties or the conduct
of its business requires such qualification, except in any such case in which
the failure to so qualify or be in good standing would not have a material
adverse effect on the business of the
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Company and its subsidiaries, taken as a whole. Each of the Company's
subsidiaries has all authorizations, approvals, orders, certificates and
permits of and from all state, federal and other regulatory officials and
bodies necessary to own its properties and to conduct its business as described
in the Registration Statement and Prospectus, except where the failure to have
any such authorization, approval, order, certificate or permit would not have a
material adverse effect on the business affairs, business prospects,
properties, financial condition or results of operations of the Company and its
subsidiaries, taken as a whole. Except for the capital stock of the
subsidiaries and except as otherwise described in the Prospectus, the Company
does not own any capital stock of, or other securities evidencing an equity
interest in, any corporation, partnership or other entity. All of the issued
and outstanding shares of capital stock of the Company's subsidiaries have been
duly and validly authorized and issued, are fully paid and non-assessable, and
except as described in the Prospectus, are owned by the Company, free and clear
of any security interest, claim, lien, encumbrance or adverse interest of any
nature. Except as described in the Prospectus, there are no outstanding
subscriptions, rights, warrants or options to acquire, or instruments
convertible into or exchangeable for, any shares of capital stock of any of the
Company's subsidiaries.
(ix) The Company has an authorized and outstanding capitalization as set
forth in the Prospectus and the Shares conform to the description thereof
contained in the Prospectus. All of the issued and outstanding shares of
Common Stock have been duly authorized, validly issued and are fully paid and
non-assessable and are free of preemptive or other similar rights and there are
no options, agreements, contracts or other rights in existence to acquire from
the Company any shares of Common Stock.
(x) The Shares to be sold by the Company pursuant to this Agreement and
the Pricing Agreement have been duly authorized and, when issued and paid for
in accordance with this Agreement and the Pricing Agreement, will be validly
issued, fully paid and non-assessable; the holders of the Shares will not be
subject to personal liability by reason of being such holders; there are no
holders of securities of the Company having rights, contractual or otherwise,
to registration thereof or preemptive rights to purchase Common Stock; all
corporate actions required to be taken for the authorization, issue and sale of
the Shares have been validly and sufficiently taken; and upon delivery of and
payment for such Shares hereunder, the Underwriters will acquire valid and
marketable title thereto, free and clear of any security interest, claim, lien,
encumbrance or adverse interest of any nature.
(xi) Since the respective dates as of which information is given in the
Registration Statement and the Prospectus, except as otherwise stated or
contemplated therein, there has not been (A) any material adverse change in the
condition (financial or otherwise), earnings, affairs, business or prospects of
the Company and its subsidiaries, taken as a whole, whether or not arising in
the ordinary course of business, (B) any material transaction entered into, or
any material liability or obligation incurred, by the Company or its
subsidiaries other than in the ordinary course of business, (C) any change in
the capital stock, or material increase in the short-term debt or long-term
debt of the Company or its subsidiaries, or (D) any dividend or distribution of
any kind declared, paid or made by the Company or its subsidiaries on its
capital stock.
(xii) The Company and each of its subsidiaries have good and marketable
title to all properties and assets reflected as owned in the financial
statements hereinabove described or described in the Prospectus as owned by
them, free and clear of all liens, charges, encumbrances or restrictions of any
kind, except such as are referred to in such financial statements or the
Prospectus or which are not material to the business of the Company and its
subsidiaries, taken as a whole; all of the leases and subleases material to the
business of the Company and its subsidiaries, taken as a whole or under which
the Company or any of its subsidiaries holds properties are in full force and
effect; and neither the Company nor any of its subsidiaries has received any
notice of any material claim of any sort which has been asserted by anyone
adverse to the rights of the Company or any subsidiary as owner or as lessee or
sublessee under any of the leases or subleases mentioned above, or affecting or
questioning the rights of the Company or such subsidiary to the continued
possession of the leased or subleased premises under any such lease or
sublease.
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(xiii) Neither the Company nor any of its subsidiaries is in default in
the observance of any provision of its Certificate of Incorporation, bank
charter or by-laws, or in the performance or observance of any obligation,
agreement, covenant or condition contained in any contract, indenture,
mortgage, loan agreement, note, lease or other instrument to which it is a
party or by which it or any of its properties may be bound, the effect of which
could be materially adverse to the condition (financial or otherwise),
earnings, affairs, business or prospects of the Company and its subsidiaries,
taken as a whole.
(xiv) The execution and delivery of this Agreement and the Pricing
Agreement, the issuance and delivery of the Shares, the consummation of the
transactions contemplated herein and in the Registration Statement and
compliance with the terms of this Agreement and the Pricing Agreement have been
duly authorized by all necessary corporate action and will not result in any
violation of the Certificate of Incorporation, bank charter or by-laws of the
Company or any of its subsidiaries, and will not conflict with or result in a
breach of any of the terms or provisions of, or constitute a default under, or
result in the creation or imposition of any lien, charge, encumbrance or
restriction of any kind upon any property or assets of the Company or any of
its subsidiaries under any contract, indenture, mortgage, loan agreement, note,
lease or other agreement or instrument to which the Company or any of its
subsidiaries is a party or by which the Company or any of its subsidiaries, or
any of their respective properties, is bound, or any existing applicable law,
rule, regulation, judgment, order or decree of any government, governmental
instrumentality or court, domestic or foreign, having jurisdiction over the
Company or any of its subsidiaries or any of their respective properties. No
approval, authorization or consent of any court, regulatory body,
administrative agency or other governmental body having jurisdiction over the
Company or any of its subsidiaries is required in connection with the sale of
the Shares to the Underwriters, except such as may be required under the Act,
state securities or Blue Sky laws or from the clearance of the offering with
the National Association of Securities Dealers, Inc. (the "NASD").
(xv) There is no action, suit or proceeding before or by any court or
governmental agency or body, domestic or foreign, or any arbitrator or
arbitration panel, now pending or, to the knowledge of the Company, threatened
against or affecting the Company or any of its subsidiaries which could result
in any material adverse change to the condition (financial or otherwise),
earnings, affairs, business or prospects of the Company and its subsidiaries,
taken as whole; and there is no decree, judgment or order of any kind in
existence against or restraining the Company or any of its subsidiaries, or any
of their respective officers, employees or directors, from taking any actions
of any kind in connection with the business of the Company or any such
subsidiary.
(xvi) The Company and each of its subsidiaries own or possess or have
obtained all material governmental licenses, permits, consents, orders,
approvals and other authorizations necessary to lease or own, as the case may
be, and to operate their properties and to carry on their businesses as
presently conducted, and neither the Company nor any such subsidiary has
received any notice of proceedings related to revocation or modification of any
such licenses, permits, consents, orders, approvals or authorizations which
singly or in the aggregate, if the subject of an unfavorable ruling or finding,
would be materially adverse to the condition (financial or otherwise),
earnings, affairs, business or prospects of the Company and its subsidiaries,
taken as a whole.
(xvii) The conduct of the business of the Company and each of its
subsidiaries is in compliance with all applicable federal, state and local laws
and regulations that regulate or are concerned in any way with the business of
the Company or such subsidiaries, where the effect of the failure to comply
would be materially adverse to the condition (financial or otherwise),
earnings, affairs, business or prospects of the Company and its subsidiaries,
taken as a whole.
(xviii) The Company together with its subsidiaries owns or possesses, or
can acquire on reasonable terms, all right, title and interest in or to, or has
duly licensed from third parties, all patents, trademarks, service marks,
copyrights, trade names, trade secrets and other proprietary rights ("Trade
Rights") necessary to conduct the business now or proposed to be conducted by
it, and neither the Company nor any of its subsidiaries has received any notice
of, and has no knowledge of, infringement of or conflict with asserted rights
of others with respect to any such Trade Rights which, singly or in the
aggregate, if the subject of an unfavorable decision, ruling or finding, would
be materially adverse to the
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condition (financial or otherwise), earnings, affairs, business or prospects of
the Company and its subsidiaries, taken as a whole.
(xix) The Company has filed all tax returns required to be filed and has
paid all taxes which were payable pursuant to said returns or any assessments
with respect thereto, other than any tax returns which the Company is
contesting in good faith or which are not material to the Company and there is
no tax deficiency that has been, or to the knowledge of the Company might be,
asserted against the Company or any of its properties or assets that would or
could be expected to have a material adverse affect upon the condition
(financial or otherwise) or results of operations of the Company and its
subsidiaries, taken as a whole.
(xx) This Agreement has been duly executed and delivered by the Company.
(xxi) The Company has filed a registration statement pursuant to Section
12(g) of the Exchange Act to register the Common Stock thereunder, has filed an
application to list the Shares for quotation on The Nasdaq National Market and
has received notification [that the listing has been approved, subject to
notice of issuance or sale of the Shares, as the case may be] [that the Shares
have been authorized for quotation on The Nasdaq National Market, subject to
notice of issuance or sale, as the case may be].
(xxii) The Company is not, and does not intend to conduct its business in
a manner in which it would become, an "investment company" as defined in
Section 3(a) of the Investment Company Act of 1940, as amended (the "Investment
Company Act").
(xxiii) All offers and sales of the Company's capital stock prior to the
date hereof were at all relevant times exempt from the registration
requirements of the Act and were duly registered with, or the subject of an
available exemption from, the registration requirements of the applicable state
securities or Blue Sky laws.
(xxiv) The Company has not taken and 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 security of the Company.
(xxv) Except as disclosed in the Registration Statement and the
Prospectus, no transaction has occurred between or among the Company, on the
one hand, and any of its officers or directors or any affiliate or affiliates
of any such officer or director, on the other hand, that is required to be so
disclosed, including, but not limited to, any outstanding loans, advances or
guaranties of indebtedness by the Company to or for the benefit of any
affiliates of the Company, or any of the officers or directors of the Company,
or any family member of any of them.
(xxvi) The Company has not, directly or indirectly, at any time (A) made
any contributions to any candidate for foreign political office, or if made,
failed to disclose fully any such contribution made in violation of law, or (B)
made any payment to any state, federal or foreign governmental officer or
official, or other person charged with similar public or quasi-public duties,
other than payments or contributions required or allowed by applicable law.
The Company's internal accounting controls and procedures are sufficient to
cause the Company to comply in all material respects with the Foreign Corrupt
Practices Act of 1977, as amended.
(xxvii) The Company confirms as of the date hereof that it is in
compliance with all provisions of Section 1 of Laws of Florida, Chapter 92-198,
An Act Relating to Disclosure of Doing Business with Cuba, and the Company
further agrees that if it commences engaging in business with the government of
Cuba or with any person or affiliate located in Cuba after the date the
Registration Statement becomes or has become effective with the Commission or
with the Florida Department of Banking and Finance (the "Department"),
whichever date is later, or if the information reported in the Prospectus, if
any, concerning the Company's business with Cuba or with any person or
affiliate located in Cuba changes in any material way, the Company will provide
the Department with notice of such business or change, as appropriate, in a
form acceptable to the Department.
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(xxviii) The Company and each of its subsidiaries are in compliance with
all applicable federal and state laws and regulations that regulate or are
concerned in any way with the business of banking, including, without
limitation, the Bank Holding Company Act of 1956, as amended (the "Bank Holding
Company Act"), the National Bank Act, the Federal Deposit Insurance Act and all
other applicable laws and regulations where the failure to comply would have a
material and adverse effect on the financial condition, earnings or business of
the Company and its subsidiaries taken as a whole. Each of the Company,
Prairie and Country is a bank holding company duly registered with the Board of
Governors of the Federal Reserve System under the Bank Holding Company Act.
(xxix) The Company has consummated the acquisition of all of the
outstanding capital stock of Prairie pursuant to the Agreement and Plan of
Merger dated January 22, 1996, as supplemented and amended, by and among the
Company, Prairie Acquisition Corporation and Prairie (the "Prairie Agreement")
and has consummated the acquisition of all of the outstanding capital stock of
Country pursuant to the Agreement and Plan of Merger dated March 21, 1996, by
and among the Company, CBI Acquisition Corporation and Country (the "Country
Agreement") and the Company is not in default in the observance of any of the
terms and conditions of the Prairie Agreement or the Country Agreement.
For purposes of this Agreement, all references to the Company and its
subsidiaries shall include, without limitation, Prairie and Country and their
respective subsidiaries.
SECTION 2. AGREEMENT TO SELL AND PURCHASE.
(a) Subject to such adjustments to eliminate any fractional share sales
or purchases as the Underwriter in its discretion may make, (i) the Company
hereby agrees to issue and sell to the Underwriter an aggregate of 1,100,000
Firm Shares, and (ii) on the basis of the representations, warranties and
agreements of the Company herein contained and subject to the terms and
conditions set forth herein, the Underwriter agrees to purchase from the
Company, at the purchase price per Share set forth in the Pricing Agreement
(the "Purchase Price per Share"), such Firm Shares.
(b) The Company agrees to issue and sell to the Underwriter and, on the
basis of the representations, warranties and agreements of the Company set
forth herein and subject to the terms and conditions set forth herein, the
Underwriter shall have the right to purchase from the Company up to 165,000
Additional Shares at the Purchase Price per Share upon delivery to the Company
of the notice hereinafter referred to. Such Additional Shares may be purchased
solely for the purpose of covering over-allotments made in connection with the
offering of the Firm Shares.
(c) It is understood that up to 110,000 Firm Shares will initially be
reserved by the several Underwriters for offer and sale upon the terms and
conditions set forth in the Prospectus to the Company's Employees' Stock
Ownership Plan and to officers and directors of the Company who have heretofore
delivered to the Underwriter offers or indications of interest to purchase Firm
Shares in form satisfactory to the Underwriter, and that any allocation of such
Firm Shares among such persons will be made in accordance with timely
directions received by the Underwriter from the Company, provided that under no
circumstances will the Underwriter be liable to the Company or any such person
for any action taken or omitted in good faith in connection with such offering
to the Company's Employee's Stock Ownership Plan and to officers and directors
of the Company. It is further understood that any of such Firm Shares which
are not purchased by such persons will be offered by the Underwriter to the
public upon the terms and conditions set forth in the Prospectus.
SECTION 3. DELIVERY OF THE SHARES AND PAYMENT THEREFOR.
(a) Delivery to the Underwriter of the Firm Shares shall be made against
payment therefor at 9:00 a.m., Chicago, Illinois time, on the third full
business day following the date of the Pricing Agreement (the "Closing Date")
at the offices of Sidley & Austin, One First National Plaza, Chicago, Illinois
60603. The place of the closing and the Closing Date may be varied by
agreement between the Underwriter and the Company.
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(b) Delivery to the Underwriter of any Additional Shares to be purchased
by the Underwriter shall be made in Chicago, Illinois against payment therefor
at the offices of Sidley & Austin at such time on such date (the "Option
Closing Date"), which may be the same as the Closing Date, but shall in no
event be earlier than the Closing Date nor earlier than three nor later than
ten business days after the giving of the notice hereinafter referred to, as
shall be specified in written notice from the Underwriter to the Company of the
determination to purchase a number, specified in said notice, of Additional
Shares. Said notice may be given at any time within 30 days after the date of
the execution of the Pricing Agreement. The place of the closing and the
Option Closing Date may be varied by agreement between the Underwriter and the
Company.
(c) If the Underwriter and the Company have elected to enter into the
Pricing Agreement after the Registration Statement is effective, the Purchase
Price per Share to be paid by the Underwriter for the Shares shall be an amount
equal to the initial public offering price, less an amount to be determined by
agreement between the Underwriter and the Company. The initial public offering
price per Share of the Shares shall be a fixed price to be determined by
agreement between the Underwriter and the Company. The initial public offering
price and the Purchase Price per Share, when so determined, shall be set forth
in the Pricing Agreement. If such prices have not been agreed upon and the
Pricing Agreement has not been executed and delivered by all parties thereto by
the close of business on the fourth business day following the date of this
Agreement, this Agreement shall terminate forthwith, without liability of any
party to any other party, unless otherwise agreed to by the Company and the
Underwriter and except as otherwise provided in Section 5 hereof. If the
Underwriter and the Company have elected to enter into the Pricing Agreement
prior to the Registration Statement becoming effective, the initial public
offering price and the Purchase Price per Share to be paid by the several
Underwriters for the Shares having each been determined and set forth in the
Pricing Agreement, the Company agrees to file an amendment to the Registration
Statement and the Prospectus before the Registration Statement becomes
effective.
(d) Certificates for the Firm Shares and for the Additional Shares shall
be registered in such names and in such denominations as the Representatives
shall request upon at least 48 hours prior notice to the Company preceding the
Closing Date or the Option Closing Date, as the case may be. Such certificates
shall be made available to the Underwriter at the office of The Depository
Trust Company, New York, New York, for inspection and packaging not later than
at least 24 hours prior to the Closing Date or the Option Closing Date, as the
case may be. The certificates evidencing the Firm Shares and the Additional
Shares shall be delivered to the Underwriter on the Closing Date or the Option
Closing Date, as the case may be, with any transfer taxes thereon duly paid by
the Company for the Underwriter, against payment of the purchase price therefor
by certified or official bank check or checks payable in Chicago Clearing House
(next-day) funds to the order of the Company, or, at the option of the Company,
by wire transfer in federal (same day) funds for which the Company will pay one
day's interest at the broker call rate as reported in The Wall Street Journal
on the business day immediately prior to the Closing Date or the Option Closing
Date, as the case may be, subject to change by written agreement of the Company
and the Underwriter.
SECTION 4. AGREEMENTS OF THE COMPANY. The Company covenants and agrees
with the Underwriter that:
(a) The Company will endeavor to cause the Registration Statement to
become effective and will advise the Underwriter promptly and, if requested by
the Underwriter, will confirm such advice in writing, (i) when the Registration
Statement has become effective and when any post-effective amendment to it
becomes effective, and of the filing of any final prospectus or supplement or
amendment to the Prospectus, (ii) of any request by the Commission for
amendments or supplements to the Registration Statement or Prospectus or any
Preliminary Prospectus or for additional information, (iii) of the issuance by
the Commission of any stop order suspending the effectiveness of the
Registration Statement or of the suspension of qualification of the Shares for
offering or sale in any jurisdiction, or the initiation or contemplation of any
proceeding for such purposes, and (iv) within the period of time referred to in
paragraph (f) below, of the happening of any event which makes any statement
made in the Registration Statement or Prospectus (as then amended or
supplemented) untrue in any material respect or which requires the making of
any additions to or changes in the Registration Statement or Prospectus (as
then
9
amended or supplemented) in order to make the statements therein not misleading
or the necessity to amend or supplement the Prospectus to comply with the Act
or any other law. If at any time the Commission shall issue any stop order
suspending the effectiveness of the Registration Statement, the Company will
make every reasonable effort to obtain the withdrawal of such order at the
earliest possible moment. If the Company elects to rely on Rule 434 of the
Act, the Company will prepare a Term Sheet that complies with the requirements
of Rule 434 of the Act and will provide the Representatives with copies of the
form of Rule 434 Prospectus in such numbers as you may reasonably request and
file or transmit for filing with the Commission the form of Prospectus
complying with Rule 434(c)(2) of the Act in accordance with Rule 424(b) of the
Act by the close of business in Chicago on the business day immediately
succeeding the date hereof. If the Company elects not to rely on Rule 434, the
Company will provide the Underwriter with copies of the form of Prospectus in
such numbers as you may reasonably request and file or transmit for filing with
the Commission such Prospectus in accordance with Rule 424(b) of the Act, by
the close of business in Chicago on the business day immediately succeeding the
date hereof.
(b) If, at the time that the Registration Statement becomes effective,
any information shall have been omitted therefrom in reliance upon Rule 430A
under the Act, then promptly following the execution of the Pricing Agreement,
the Company will prepare and file with the Commission, in accordance with Rule
430A and Rule 424(b) under the Act, copies of an amended Prospectus, or, if
required by Rule 430A, a post-effective amendment to the Registration Statement
(including an amended Prospectus) containing all information so omitted.
(c) Neither the Company nor any of its subsidiaries will, prior to the
earlier of the Option Closing Date or termination or expiration of the related
option, incur any liability or obligation, direct or contingent, or enter into
any material transaction, other than in the ordinary course of business, except
as contemplated in the Prospectus.
(d) The Company will not file any amendment to the Registration Statement
or make any amendment or supplement to the Prospectus of which the Underwriter
shall not previously have been advised or to which the Underwriter shall
promptly after being so advised reasonably object in writing.
(e) Prior to the effective date of the Registration Statement, the
Company has delivered or will deliver to the Underwriter, without charge,
copies of each form of Preliminary Prospectus in such quantities as the
Underwriter shall have reasonably requested or may hereafter reasonably
request. The Company consents to the use, in accordance with the provisions of
the Act and with the securities or Blue Sky laws of the jurisdictions in which
the Shares are offered by the Underwriter and by dealers, prior to the
effective date of the Registration Statement, of each Preliminary Prospectus so
furnished by the Company.
(f) On the effective date of the Registration Statement and thereafter
from time to time during such period as in the opinion of counsel for the
Underwriters a prospectus relating to the Shares is required by law to be
delivered in connection with offers or sales of the Shares by the Underwriter
or a dealer, the Company will deliver to the Underwriter and each dealer,
without charge, as many copies of the Registration Statement, the Prospectus
and each Preliminary Prospectus (and of any amendment or supplement to such
documents) as they may reasonably request. During such period, if any event
occurs which in the judgment of the Company, or in the opinion of counsel for
the Underwriter, should be set forth in the Prospectus in order to ensure that
no part of the Prospectus includes an untrue statement of a material fact or
omits to state a material fact necessary in order to make the statements
therein, in the light of the circumstances at the time the Prospectus is
delivered to a purchaser, not misleading, the Company will forthwith prepare,
submit to the Underwriter, file with the Commission and deliver, without charge
to the dealers (whose names and addresses will be furnished by the Underwriter
to the Company) to whom shares have been sold by the Underwriter or to other
dealers any amendments or supplements to the Prospectus so that the statements
in the Prospectus, as so amended or supplemented, will comply with the
standards set forth in this sentence. The Company consents to the use of such
Prospectus (and of any amendments or supplements thereto) in accordance with
the provisions of the Act and with the securities or Blue Sky laws of the
jurisdictions described in the preliminary Blue Sky memorandum in which the
Shares are lawfully offered by the Underwriter and by all dealers to whom
Shares may be sold, both
10
in connection with the offering or sale of the Shares and for such period of
time thereafter as the Prospectus is required by law to be delivered in
connection therewith. In case the Underwriter is required to deliver a
Prospectus (and any amendment or supplement thereto) more than nine months
after the first date upon which the Shares are offered to the public, the
Company will, upon request, but at the expense of the Underwriter, promptly
prepare and furnish the Underwriter with reasonable quantities of a Prospectus
complying with Section 10(a)(3) of the Act.
(g) The Company will cooperate with the Underwriter and counsel for the
Underwriter in connection with the registration or qualification of the Shares
for offer and sale by the Underwriter and by dealers under the securities or
Blue Sky laws of such jurisdictions as the Underwriter may designate, will
continue such registrations or qualifications in effect so long as reasonably
required for the distribution of the Shares and will file such consents to
service of process or other documents as may be necessary in order to effect
such registration or qualification; provided that in no event shall the Company
be obligated to (i) qualify to do business in any jurisdiction where it is not
now so qualified, (ii) file any general consent to service of process, or (iii)
take any action that would subject it to income taxation in any jurisdiction
where it is not so qualified.
(h) For a period of five years after the date of the Pricing Agreement:
(i) the Company will furnish to the Underwriter (A) as soon as
available, a copy of each report of the Company of general interest mailed
to any class of its security holders (B) copies of all annual reports and
current reports filed with the Commission on Forms 10-K, 10-Q and 8-K and
any amendment thereto or such other similar forms as may be designated by
the Commission and (C) from time to time, such other information concerning
the Company as the Underwriter may reasonably request;
(ii) if at any time during such five year period, the Company
shall cease filing with the Commission the annual reports and current
reports on Forms 10-K, 10-Q and 8-K or other similar forms referred to
in clause (h)(i) above, the Company will forward to its stockholders
generally and the Underwriter (A) as soon as practicable after the end
of each fiscal year, copies of a balance sheet and statements of income
and retained earnings of the Company as of the end of and for such
fiscal year, certified by independent public accountants, and (B) as
soon as practicable after the end of each quarterly fiscal period,
except for the last quarterly fiscal period in each fiscal year, a
summary statement (which need not be certified) of income and retained
earnings of the Company for such period, which shall also be made
publicly available; and
(iii) the Company will furnish to the Underwriter and to the NASD,
and by issuance of a press release, on the date of declaration, notice
of all dividends, including the amount and medium of payment, the record
date (which shall be not less than ten days subsequent to the
declaration date) and the payment date (which shall be not less than ten
days subsequent to the record date).
(i) The Company will make generally available to its security holders an
earnings statement of the Company, which need not be audited, covering a
twelve-month period commencing after the effective date of the Registration
Statement and ending not later than 15 months thereafter, as soon as
practicable after the end of such period, which earnings statement shall
satisfy the provisions of Section 11(a) of the Act and the rules and
regulations of the Commission thereunder (including Rule 158).
(j) If this Agreement shall be terminated pursuant to any of the
provisions hereof (otherwise than by notice given by the Underwriter's
termination of this Agreement pursuant to Section 9 hereof), or if this
Agreement shall be terminated by the Underwriter because of any failure or
refusal on the part of the Company to comply with the terms or fulfill any of
the conditions of this Agreement, the Company agrees to reimburse the
Underwriter for all out-of-pocket expenses (including reasonable fees and
expenses of counsel for the Underwriter) reasonably incurred by them in
connection herewith but without any further obligation of the Company for lost
profits or otherwise.
11
(k) The Company will not sell, contract to sell or otherwise dispose of
any Common Stock or rights to purchase Common Stock for a period of 180 days
after the date of the Pricing Agreement without the prior written consent of
the Underwriter (other than the issuance of shares of Common Stock pursuant to
the "UnionBancorp, Inc. 1993 Stock Option Plan" and certain other employment
benefit arrangements of the Company in an aggregate amount not to exceed 5%) of
the Shares. The Company will also obtain similar agreements from each of its
executive officers and directors and, to the extent practicable, all persons
who own more than 5% of the Common Stock after the consummation of the
Offering.
(l) The Company will apply the net proceeds from the sale of the Shares
to be sold by it under this Agreement and the Pricing Agreement for the
purposes set forth in the Prospectus under the caption "Use of Proceeds."
(m) The Company will use its best efforts, subject to notice of issuance,
to cause the Shares to be approved for quotation on the NASDAQ Stock Market.
[(n) The Company will file with the Commission in a timely manner all
reports on Form SR required by Rule 463 of the Act and will furnish to the
Underwriter copies of any such reports as soon as practicable after the filing
thereof.]
SECTION 5. PAYMENT OF EXPENSES. The Company will pay, or reimburse if
paid by the Underwriter, whether or not the transactions contemplated hereby
are consummated or this Agreement is terminated, all costs and expenses
incident to the performance by it of its obligations under this Agreement and
the Pricing Agreement, including, without limiting the generality of the
foregoing, (a) preparation, printing, filing and distribution (including
postage, air freight charges and charges for counting and packaging) of the
original registration statement, the Registration Statement, each Preliminary
Prospectus, the Prospectus (including any exhibits and financial statements and
any Term Sheet delivered by the Company pursuant to Rule 434 of the Act), each
amendment and/or supplement to any of the foregoing, and this Agreement, the
Pricing Agreement, the Selected Dealers Agreement, Powers of Attorney and
Underwriters' Powers of Attorney and Questionnaires, (b) furnishing to the
Underwriter and dealers copies of the foregoing materials (provided, however,
that any such copies furnished by the Company more than nine months after the
first date upon which the Shares are offered to the public shall be at the
expense of the Underwriter or dealers so requesting as provided in Section 4(f)
above), (c) the registrations or qualifications referred to in Section 4(g)
above (including filing fees and fees and disbursements of counsel in
connection therewith) and expenses of printing and delivering to the
Underwriter copies of the preliminary and final Blue Sky memoranda; provided,
that such expenses (exclusive of filing fees and disbursements) shall not
exceed $15,000, (d) the review of the terms of the public offering of the
Shares by the NASD (including the filing fees paid to the NASD in connection
therewith) and the reasonable fees and disbursements of counsel for the
Underwriter in connection therewith, (e) the performance by the Company of its
other obligations under this Agreement, including the fees of the Company's
counsel and accountants, (f) the issuance of the Shares and the preparation and
printing of the stock certificates representing the Shares, including any stamp
taxes payable in connection with the original issuance of the Shares, (g)
furnishing to the several Underwriters copies of all reports and information
required by Section 4(h) above, including reasonable costs of shipping and
mailing, (h) the designation of the Common Stock as a Nasdaq National Market
security, and (i) an expense allowance to the Underwriter for out-of-pocket
expenses, including the expense of counsel to the Underwriter, not to exceed
1.5% of the aggregate offering amount.
SECTION 6. CONDITIONS OF THE UNDERWRITER'S OBLIGATIONS. The obligation
of the Underwriter to purchase the Firm Shares hereunder is subject to the
following conditions:
(a) That the Registration Statement shall have become effective not later
than 1:00 p.m., Chicago time, on the first full business day after the date of
this Agreement, or at such later date and time as shall be consented to in
writing by the Underwriter, and, if the Underwriter and the Company have
elected to rely upon Rule 430A, the price of the Shares and any price-related
or other information previously omitted from the effective Registration
Statement pursuant to such Rule 430A shall have been transmitted to the
Commission for filing pursuant to Rule 424(b) within the prescribed time
period, and, if the Underwriter and the Company have elected to rely upon a
Term Sheet, such Term Sheet shall have
12
been transmitted to the Commission for filing pursuant to Rule 434 and Rule
424(b) within the prescribed time period, and on or prior to the Closing Date,
the Company shall have provided evidence satisfactory to the Underwriter of
such timely filing, or a post-effective amendment providing such information
shall have been promptly filed and declared effective in accordance with the
requirements of Rule 430A. No stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for the
purpose shall have been instituted or shall be pending or, to the knowledge of
the Company, shall be contemplated by the Commission and there shall not have
come to the attention of the Underwriter any facts that would cause them to
believe that the Prospectus, at the time it was required to be delivered to
purchasers of the Shares, contained any untrue statement of material fact or
omitted to state any material fact necessary in order to make the statements
therein, in light of the circumstances under which there were made, not
misleading.
(b) That subsequent to the effective date of the Registration Statement,
(i) there shall not have occurred any change, or any development involving a
prospective change, in or affecting particularly the business or properties of
the Company or its subsidiaries not contemplated by the Prospectus, which, in
the Underwriter's opinion, would materially adversely affect the market for the
Shares or make it impracticable or inadvisable to proceed with the offering or
the delivery of the Shares, as contemplated herein and in the Prospectus, or to
attempt to enforce contracts for the purchase of Shares, and (ii) the business
and operations of the Company shall not have been adversely affected by strike,
fire, flood, accident or other calamity (whether or not insured).
(c) The Underwriter shall have received from Barack, Ferrazzano,
Kirschbaum & Perlman, counsel for the Company, a favorable opinion dated the
Closing Date and satisfactory to the Underwriter and the Underwriter's counsel
to the effect that:
(i) The Company and each of its subsidiaries have been duly
organized and are validly existing as corporations or banks under the
laws of their respective jurisdictions of incorporation with full power
and authority to own, lease and operate their properties and conduct
their businesses as described in the Registration Statement. The
Company and each of its subsidiaries are duly qualified to do business
as foreign corporations and in good standing in each jurisdiction where
the ownership or leasing of their properties or the conduct of their
businesses require such qualification, except in any such case where the
failure to so qualify or be in good standing would not have a material
adverse effect on the condition (financial or otherwise) or results of
operations of the Company and its subsidiaries, taken as a whole.
(ii) All of the issued and outstanding capital stock of the
subsidiaries of the Company has been duly authorized and validly issued and
is fully paid and non-assessable, and except as disclosed in the
Registration Statement, the Company owns directly or indirectly 100 percent
of the outstanding capital stock of each subsidiary and, to the best
knowledge of such counsel, such stock is owned free and clear of any
security interests, claims, liens, encumbrances or adverse interests of any
nature.
(iii) The issued and outstanding capital stock of the Company has been
duly authorized and validly issued and is fully paid and non-assessable and
free of preemptive rights.
(iv) The authorized capitalization of the Company consists
entirely of ________ shares of Common Stock, of which __________ were
issued and outstanding on the date of the Prospectus and ________ shares
of Preferred Stock, of which _________________ were issued and
outstanding on the date of the Prospectus and all of which conforms to
the description thereof in the Registration Statement and the
Prospectus.
(v) The certificates for the Shares to be delivered hereunder are
in due and proper form, and when duly countersigned by the Company's
transfer agent and delivered to the Underwriter against payment of the
agreed consideration therefor in accordance with the provisions of this
Agreement and the Pricing Agreement, the Shares represented thereby will
be duly authorized and validly issued, fully paid and nonassessable and
free of preemptive rights and, to the knowledge of such counsel, will be
free of any security interest, claim, lien, encumbrance or adverse
interest
13
of any nature, or rights of first refusal in favor of, stockholders with
respect to any of the Shares or the issuance or sale thereof, pursuant to
the Certificate of Incorporation or by-laws of the Company and, to such
counsel's knowledge, there are no contractual preemptive rights, rights of
first refusal, rights of co-sale or other similar rights which exist with
respect to any of the Shares or the issuance and sale thereof; and the
Shares to be sold hereunder have been duly and validly authorized and
qualified for inclusion on The Nasdaq National Market, subject to notice of
issuance.
(vi) This Agreement and the Pricing Agreement have been duly and
validly authorized, executed and delivered by the Company and are legal,
valid and binding obligations of the Company, enforceable in accordance
with their terms, except as enforceability may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting
creditors' rights generally and by general principles of equity, and
except that such counsel need express no opinion as to those provisions
relating to indemnities for liabilities under the Act.
(vii) No authorization, approval, order or consent of any
governmental authority or agency is required for the valid issuance and
sale of the Shares, except such as may be required under the Act or
state securities laws as to which such counsel need express no opinion.
(viii) The execution, delivery and performance of this Agreement
and the Pricing Agreement by the Company, the issue and sale of the
Shares, and the consummation of the transactions contemplated hereby and
thereby will not conflict with or result in a breach of any of the
provisions of, or constitute a default under (A) the Company's
Certificate of Incorporation or by-laws or any agreement, franchise,
license, indenture, mortgage, deed of trust or other instrument or
agreement known to such counsel to which the Company or any of its
subsidiaries is a party or by which Company or any of its subsidiaries
is bound or to which any of their respective properties is subject or
(B) so far as known to such counsel, any statute, order, rule or
regulation applicable to the Company or any of its subsidiaries of any
court or other governmental authority or body having jurisdiction over
the Company or any of its subsidiaries or any of its properties.
(ix) The Registration Statement has become effective under the
Act, and, to the knowledge of such counsel, no stop order suspending the
effectiveness of the Registration Statement has been issued and no
proceedings for that purpose have been instituted or are pending or
contemplated under the Act.
(x) The Registration Statement (including the information deemed to be
part of the Registration Statement at the time of effectiveness pursuant to
Rule 430A(b), if applicable) as amended or supplemented (except for the
financial statements and notes thereto, the financial statement schedules
and other statistical or financial data included therein as to which such
counsel need express no opinion) and the Prospectus and any supplements or
amendments thereto (except for the financial statements and notes thereto,
the financial statement schedules and other statistical or financial data
included therein, as to which such counsel need express no opinion) comply
as to form in all material respects with the requirements of the Act and the
rules of the Commission thereunder and nothing has come to the attention of
such counsel that would cause such counsel to believe that the Registration
Statement (including the information deemed to be part of the Registration
Statement at the time of effectiveness pursuant to Rule 430A(b), if
applicable) as amended or supplemented (except for the financial statements
and notes thereto, the financial statement schedules and other statistical
or financial data included therein as to which such counsel need express no
opinion) at the time it became effective, at the time the Pricing Agreement
was executed and at the Closing Date, contained any untrue statement of a
material fact or omitted or omits to state any material fact required to be
stated therein or necessary to make the statements therein not misleading,
or that, as of its date, the Prospectus or any amendment or supplement
thereto (except for the financial statements and notes thereto, the
financial statement schedules and other statistical or financial data
included therein as to which such counsel need express no opinion) included
or includes any untrue statement of a material fact or omitted or omits to
state any material fact necessary to make the
14
statements therein, in light of the circumstances under which they were
made, not misleading. The Rule 434 Prospectus conforms to the
requirements of Rule 434 of the Act.
(xi) The statements in the Prospectus in the sections captioned
"Description of Capital Stock", "The Acquisitions" and "Supervision and
Regulation" in each case insofar as such statements reflect a summary of
the material legal matters or the documents referred to therein, fairly
and accurately present the information called for by the Act and the
applicable rules and regulations promulgated thereunder.
(xii) To the knowledge of such counsel there are no statutes or
regulations, provisions of the Delaware General Corporation Law or any
pending or threatened litigation or governmental proceedings against the
Company required to be described in the Prospectus which are not so
described, nor of any contracts or documents of a character required to
be described in or filed as a part of the Registration Statement which
are not described or filed as required.
(xiii) To such counsel's knowledge, except as disclosed in the
Prospectus, no person has the right, contractual or otherwise, to cause
the Company to register pursuant to the Act any shares of capital stock
of the Company, upon the issuance and sale of the Shares to be sold by
the Company to the Underwriter pursuant to this Agreement.
(xiv) Neither the Company nor any of its subsidiaries is an
"investment company" or a person "controlled by" an "investment company"
within the meaning of the Investment Company Act.
(xv) To such counsel's knowledge, all offers and sales of the
Company's and each of its subsidiaries capital stock prior to the date
hereof were at all relevant times exempt from the registration
requirements of the Act and were duly registered or the subject of an
available exemption from the registration requirements of the applicable
state securities or blue sky laws.
In rendering such opinion, such counsel may state that they are relying
upon the certificate of the officers of the Company and the transfer agent for
the Common Stock, as to the number of shares of Common Stock at any time or
times outstanding, and that insofar as their opinion under clause (x) above
relates to the accuracy and completeness of the Prospectus and Registration
Statement, it is based upon a general review with the Company's representatives
and independent accountants of the information contained therein, without
independent verification by such counsel of the accuracy or completeness of
such information. Such counsel may also rely upon the opinions of other
competent counsel and, as to factual matters, on certificates of officers of
the Company and its subsidiaries and of state officials, in which case their
opinion is to state that they are so doing and copies of such opinions or
certificates are to be attached to the opinion unless such opinions or
certificates (or, in the case of certificates, the information therein) have
been furnished to the Underwriter otherwise.
(d) That the Underwriter shall have received on the Closing Date a
favorable opinion dated the Closing Date from Sidley & Austin, counsel for the
Underwriter, as to such matters as the Underwriter may reasonably require.
(e) That the Underwriter shall have received letters addressed to the
Underwriter and dated the date hereof and the Closing Date from McGladrey &
Pullen, LLP, independent public accountants for the Company, Prairie [and
Country,] to the effect set forth in Schedule I. There shall not have been any
change or decrease specified in the letters referred to in this subparagraph
which makes it impractical or inadvisable in the judgment of the Underwriter to
proceed with the public offering or purchase of the Shares as contemplated
hereby.
(f) That (i) no stop order suspending the effectiveness of the
Registration Statement 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 at or prior to the Closing Date; (ii) there
shall not have been any change in the capital stock of the Company nor any
material increase in the short or long-term
15
debt of the Company from that set forth or contemplated in the Registration
Statement; (iii) there shall not have been, since the respective dates as to
which information is given in the Registration Statement and the Prospectus,
except as may otherwise be set forth or contemplated in the Registration
Statement and the Prospectus, any material adverse change in the financial
condition or results of operations of the Company; (iv) the Company shall not
have incurred any material liabilities or obligations, direct or contingent
(whether or not in the ordinary course of business), other than those reflected
in the Registration Statement, and (v) all of the representations and
warranties of the Company contained in this Agreement shall be true and correct
on and as of the date hereof and the Closing Date as if made on and as of each
such date, and the Underwriter shall have received a certificate, dated the
Closing Date and signed by the chief executive officer and the principal
financial officer (or such other officers as are acceptable to the Underwriter)
to the effect set forth in this Section 6(f) and in Section 6(g) hereof.
(g) That the Company shall not have failed at or prior to the Closing
Date to have performed or complied in all material respects with any of the
agreements herein contained and required to be performed or complied with by it
at or prior to the Closing Date.
(h) Within 24 hours after the Registration Statement becomes effective,
or within such longer period as to which the Underwriter shall have consented,
the Shares shall have been qualified for sale or exempted from such
qualification under the securities laws of such jurisdictions as the
Underwriter shall have designated prior to the time of execution of the Pricing
Agreement and such qualification or exemption shall continue in effect to and
including the Closing Date.
(i) That the Underwriter shall have received from Prairie and Country an
officer's certificate signed by an executive officer of Prairie and Country,
respectively, dated the Closing Date substantially in the form heretofore
approved by the Underwriter and counsel for the Underwriter.
(j) Prior to the Closing Date, the Company shall have furnished to the
Underwriter or the Underwriter's counsel such further information, certificates
and documents as the Underwriter or the Underwriter's counsel may reasonably
request.
The several obligations of the Underwriters to purchase Additional Shares
hereunder are subject to the satisfaction on and as of the Option Closing Date
of the conditions set forth in paragraphs (a) through (j); except that the
opinions called for in paragraphs (c) and (d) shall be revised to reflect the
sale of Additional Shares and shall be dated the Option Closing Date, if
different from the Closing Date.
SECTION 7. INDEMNIFICATION AND CONTRIBUTION.
(a) The Company agrees to indemnify and hold harmless the Underwriter and
each person, if any, who controls the Underwriter within the meaning of the Act
or the Exchange Act from and against any and all losses, claims, damages or
liabilities, joint or several, whatsoever (including any investigation, legal
or other expenses incurred in connection with, and any amount paid in
settlement of, any action, suit or proceeding or any claim asserted) to which
the Underwriter, or such controlling person may become subject, arising out of
or based upon any untrue statement or alleged untrue statement of a material
fact contained in any Preliminary Prospectus or the Registration Statement or
the Prospectus or in any amendment or supplement thereto or arising out of or
based upon any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, and will reimburse the Underwriter for any legal or other expenses
reasonably incurred by the Underwriter in connection with investigating or
defending any such action or claim as such expenses are incurred, except
insofar as such losses, claims, damages or liabilities arise out of or are
based upon any such untrue statement or omission or allegation thereof which
has been made therein or omitted therefrom in reliance upon and in conformity
with information relating to the Underwriter furnished in writing to the
Company by the Underwriter expressly for use therein; provided, however, that
the indemnification contained in this paragraph with respect to any Preliminary
Prospectus shall not inure to the benefit of the Underwriter (or of any person
controlling the Underwriter) with respect to any action or claim arising from
the sale of the Shares by the Underwriter brought by any person who purchased
Shares from the Underwriter if (i) a copy of the Prospectus (as amended or
supplemented if any amendments or
16
supplements thereto shall have been furnished to the Underwriter prior to the
written confirmation of the sale involved) shall not have been given or sent to
such person by or on behalf of the Underwriter with or prior to the written
confirmation of the sale involved and (ii) the untrue statement or omission of
a material fact contained in such Preliminary Prospectus was corrected in the
Prospectus (as amended or supplemented if amended or supplemented as
aforesaid).
(b) If any action or claim shall be brought against the Underwriter or
any person controlling the Underwriter, in respect of which indemnity may be
sought against the Company, the Underwriter shall promptly notify the Company
in writing, and the Company shall assume the defense thereof, including the
employment of counsel and payment of all fees and expenses. The Underwriter or
any such person controlling the Underwriter shall have the right to employ
separate counsel in any such action and participate in the defense thereof, but
the fees and expenses of such counsel shall be at the expense of the
Underwriter or such controlling person unless (i) the Company has agreed in
writing to pay such fees and expenses, (ii) the Company has failed to assume
the defense and employ counsel, or (iii) the named parties to any such action
(including any impleaded party) included the Underwriter or controlling person
and the Company and the Underwriter or controlling person shall have been
advised by such counsel that there may be one or more legal defenses available
to it which are different from or additional to those available to the Company
and which may also result in a conflict of interest (in which case if the
Underwriter or controlling person notifies the Company, the Company shall not
have the right to assume the defense of such action on behalf of the
Underwriter or controlling person, it being understood, however, that the
Company shall not, in connection with any one such action or separate but
substantially similar or related actions in the same jurisdiction arising out
of the same general allegations or circumstances, be liable for the reasonable
fees and expenses of more than one separate firm of attorneys for the
Underwriter and any such controlling persons, which firm shall be designated in
writing by the Underwriter). The Company shall not be liable for any
settlement or any such action effected without the written consent of the
Company, but if settled with the written consent of the Company, or if there
shall be a final judgment for the plaintiff in any such action and the time for
filing all appeals has expired, the Company agrees to indemnify and hold
harmless the Underwriter and any such controlling person from and against any
loss or liability by reason of such settlement or judgment.
(c) The Underwriter will indemnify and hold harmless the Company, its
directors, its officers who sign the Registration Statement and any person
controlling the Company within the meaning of the Act or the Exchange Act to
the same extent as the foregoing indemnity from the Company to the Underwriter,
but only with respect to information relating to the Underwriter furnished in
writing to the Company by the Underwriter expressly for use in the Registration
Statement, the Prospectus or any Preliminary Prospectus. If any action or
claim shall be brought or asserted against the Company, any of its directors,
any such officer, or any such controlling person based on the Registration
Statement, the Prospectus or any Preliminary Prospectus and in respect of which
indemnity may be sought against the Underwriter, the Underwriter shall have the
rights and duties given to the Company pursuant to Section 7(b) hereof (except
that if the Company shall have assumed the defense thereof, the Underwriter
shall not be required to do so, but may employ separate counsel therein and
participate in the defense thereof but the fees and expenses of such counsel
shall be at the expense of the Underwriter), and the Company, its directors,
any such officer, and any such controlling person shall have the rights and
duties given to the Underwriter by Section 6(b) hereof.
(d) (i) If the indemnification provided for in this Section 7 is
unavailable as a matter of law to any indemnified party under this Section 7 in
respect of any losses, claims, damages, liabilities or expenses referred to
therein, then the indemnifying party in lieu of indemnifying such indemnified
party thereunder, shall contribute to the amount paid or payable by damages,
liabilities or expenses (A) in such proportion as is appropriate to reflect the
relative benefits received by the Company and the Underwriter from the offering
of the Shares or (B) if the allocation provided by clause (A) above is not
permitted by applicable law, in such proportion as is appropriate to reflect
not only the relative benefits referred to in clause (A) above but also the
relative fault of the Company and the Underwriter in connection with the
statements or omissions which resulted in such losses, claims, damages,
liabilities or expenses, as well as any other relevant equitable
considerations. The respective relative benefits received by the Company and
the Underwriter shall be deemed to be in the same proportion in the case of the
Company, as the total price
17
paid to the Company for the Shares by the Underwriter (net of underwriting
discount but before deducting expenses), and in the case of the Underwriter, as
the underwriting discount received by it bears to the total of such amounts
paid to the Company and received by the Underwriter as underwriting discount,
in each case as contemplated by the Prospectus. The relative fault of the
Company and the Underwriter 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 or by the Underwriter and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. The amount paid or payable by an
indemnified party as a result of the losses, claims, damages, liabilities and
expenses referred to in this Section shall be deemed to include, subject to the
limitations set forth in this Section, any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or
defending any such action or claim.
(ii) The Company and the Underwriter agree that the determination of
contribution pursuant to this Section based on pro rata allocation or by any
other method of allocation which does not take account of the equitable
considerations referred to in the immediately preceding paragraph would not be
just and equitable. 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.
(e) The indemnity and contribution agreements contained in this Section
and the representations and warranties of the Company set forth in this
Agreement shall remain operative and in full force and effect, regardless of
(i) any investigation made by or on behalf of the Underwriter or any person
controlling the Underwriter, the Company or 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 or
assign of the Underwriter, the Company or its directors or officers, and their
legal and personal representatives (or of any person controlling the
Underwriter or the Company) shall be entitled to the benefits of the indemnity,
contribution and reimbursement agreements contained in this Section.
SECTION 8. EFFECTIVE DATE OF AGREEMENT. This Agreement shall become
effective immediately as to Sections 5, 7, 9 and 10 and as to all other
provisions at 10:00 A.M., Chicago Time, on the day following the date upon
which the Pricing Agreement is executed and delivered, unless such a day is a
Saturday, Sunday or holiday (and in that event this Agreement shall become
effective at such hour on the business day next succeeding such Saturday,
Sunday or holiday); but this Agreement shall nevertheless become effective at
such earlier time after the Pricing Agreement is executed and delivered as you
may determine on and by notice to the Company or by release of any Shares for
sale to the public. For the purposes of this Section, the Shares shall be
deemed to have been so released upon the release for publication of any
newspaper advertisement relating to the Shares or upon the release by you of
telegrams (i) advising the Underwriter that the Shares are released for public
offering, or (ii) offering the Shares for sale to securities dealers, whichever
may occur first.
SECTION 9. TERMINATION OF AGREEMENT. The Underwriter shall have the
right to terminate this Agreement and the Pricing Agreement at any time prior
to the Closing Date (and with respect to the Additional Shares, the Option
Closing Date) by notice to the Company from the Underwriter, without liability
(other than with respect to Section 7) on the Underwriter's part to the Company
if, on or prior to such date, (i) the Company shall have failed, refused or
been unable to perform in any material respect any agreement on its part to be
performed hereunder, (ii) any other condition to the obligations of the
Underwriter hereunder as provided in Section 6 is not fulfilled when and as
required in any material respect, (iii) trading in securities generally on the
New York Stock Exchange, the American Stock Exchange or the NASD Automated
Quotation System shall have been suspended or materially limited, or minimum
prices shall have been established on any such exchange by the Commission, or
by such exchange or other regulatory body or governmental authority having
jurisdiction, (iv) a general banking moratorium shall have been declared by
Federal, New York or Illinois State authorities, (v) there is a material
outbreak or escalation of armed hostilities involving the United States on or
after the date hereof, or if there has been a declaration by the United States
of a national emergency or war, the effect of which shall be, in the
Underwriters' reasonable judgment, to make it inadvisable or impracticable to
proceed with the public
18
offering or delivery of the Shares on the terms and in the manner contemplated
in the Prospectus as supplemented or amended prior to the occurrence of such
event, (vi) in the Underwriters' reasonable opinion any material adverse change
shall have occurred since the respective dates as of which information is given
in the Registration Statement or the Prospectus (as supplemented or amended
prior to the occurrence of such event) in the condition (financial or other) of
the Company whether or not arising in the ordinary course of business other
than as set forth in the Prospectus as supplemented or amended prior to the
occurrence of such event, or (vii) there shall have been such a material
adverse change in general economic, political or financial conditions or if the
effect of international conditions on the financial markets in the United
States shall be such as, in the Underwriters' reasonable opinion, makes it
inadvisable or impracticable to proceed with the delivery of the Shares as
contemplated hereby. Notice of such cancellation shall be given to the Company
by telecopy or telephone but shall be subsequently confirmed by letter.
SECTION 10. REIMBURSEMENT OF UNDERWRITER'S EXPENSES. If the sale to the
Underwriter of the Shares on the Closing Date is not consummated because any
condition to the Underwriters' obligations hereunder is not satisfied or
because of any refusal, inability or failure on the part of the Company to
perform any agreement herein or to comply with any provision hereof, unless
such failure to satisfy such condition or to comply with any provision hereof
is due to the default or omission of any Underwriter, the Company agrees to
reimburse you and the other Underwriters upon demand for all out-of-pocket
expenses (including fees and disbursements of counsel) that shall have been
incurred by you and them in connection with the proposed purchase and the sale
of the Shares. Any such termination shall be without liability of any party to
any other party except that the provisions of this Section, Section 5 and
Section 7 shall at all times be effective and shall apply.
SECTION 11. NOTICES. Except as otherwise provided in Section 9 hereof,
notice given pursuant to any of the provisions of this Agreement shall be in
writing and shall be delivered (a) if to the Company, at the office of the
Company at 122 W. Madison Street, Ottawa, Illinois 61350, Attention:
_______________________, with a copy to Barack, Ferrazzano, Kirschbaum &
Perlman, 333 W. Wacker Drive, Suite 2700, Chicago, Illinois 60606, Attention:
_____________________ or (b) if to the Underwriter, at the offices of Hoefer &
Arnett Incorporated, 353 Sacramento Street, Tenth Floor, San Francisco,
California 94111, Attention: Greg H. Madding, with a copy to Sidley & Austin,
One First National Plaza, Chicago, Illinois 60603, Attention: Richard G.
Clemens, Esq. or in any case to such other address as the person to be notified
may have requested in writing.
SECTION 12. SUCCESSORS. The Agreement and the Pricing Agreement are made
solely for the benefit of the Underwriter, the Company, their directors and
officers and other controlling persons referred to in Section 7 hereof, and
their respective successors and assigns, and no other person shall acquire or
have any right under or by virtue of this Agreement or the Pricing Agreement.
The term "successors and assigns" as used in this Agreement shall not include a
purchaser from the Underwriter of any of the Shares in his status as such
purchaser.
SECTION 13. PARTIAL UNENFORCEABILITY. If any section, paragraph or
provision of this Agreement is for any reason determined to be invalid or
unenforceable, such determination shall not affect the validity or
enforceability of any other section, paragraph or provision hereof.
SECTION 14. APPLICABLE LAW. This Agreement and the Pricing Agreement
shall be governed by and construed in accordance with the laws of the State of
Illinois.
SECTION 15. COUNTERPARTS. This Agreement may be signed in various
counterparts which together shall constitute one and the same instrument.
19
Please confirm that the foregoing correctly sets forth the agreement among
the Company and the several Underwriters.
Very truly yours,
UNIONBANCORP, INC.
BY: _____________________________
NAME:
TITLE:
ACCEPTED AND DELIVERED AS OF
THE DATE FIRST WRITTEN ABOVE.
HOEFER & ARNETT INCORPORATED
BY: ________________________________
20
UnionBancorp, Inc.
SCHEDULE I
Comfort Letter of McGladry & Pullen, LLP
(1) They are independent public accountants with respect to the Company
and its subsidiaries (including Prairie and Country) within the meaning of the
Act.
(2) In their opinion the consolidated financial statements and schedules
and unaudited pro forma financial information of the Company and its
subsidiaries included in the Registration Statement and the consolidated
financial statements of the Company from which the information presented under
the caption "Selected Consolidated Financial Data" has been derived which are
stated therein to have been examined by them comply as to form in all material
respects with the applicable accounting requirements of the Act.
(3) On the basis of specified procedures (but not an examination in
accordance with generally accepted auditing standards), including inquiries of
certain officers of the Company and its subsidiaries responsible for financial
and accounting matters as to transactions and events subsequent to December 31,
1995, a reading of minutes of meetings of the stockholders and directors of the
Company and its subsidiaries since December 31, 1995, a reading of the latest
available interim unaudited consolidated financial statements of the Company
and its subsidiaries, (with an indication of the date thereof) and other
procedures specified in such letter, nothing came to their attention which
caused them to believe that (i) the unaudited consolidated financial statements
of the Company and its subsidiaries included in the Registration Statement do
not comply as to form in all material respects with the applicable accounting
requirements of the Act or that such unaudited financial statements are not
fairly presented in accordance with generally accepted accounting principles
applied on a basis substantially consistent with that of the audited financial
statements included in the Registration Statement, (ii) any unaudited pro forma
consolidated financial statements included in the Registration Statement do not
comply in all material respects with the applicable accounting requirements of
the Act or that the pro forma adjustments have not been properly applied to the
historical amounts in the compilation of those statements, and (iii) at a
specified date not more than five days prior to the date thereof in the case of
the first letter and not more than two business days prior to the date thereof
in the case of the second and third letters, there was any change in the
capital stock or long-term debt or short-term debt (other than normal payments)
of the Company and its subsidiaries on a consolidated basis or any decrease in
consolidated net current assets or consolidated stockholders' equity as
compared with amounts shown on the latest unaudited balance sheet of the
Company included in the Registration Statement or for the period from the date
of such balance sheet to a date not more than five days prior to the date
thereof in the case of the first letter and not more than two business days
prior to the date thereof in the case of the second and third letters, there
were any decreases, as compared with the corresponding period of the prior
year, in consolidated net interest income, consolidated noninterest income or
in the total or per share amounts of net earnings except, in all instances, for
changes or decreases which the Prospectus discloses have occurred or may occur
or which are set forth in such letter.
(4) They have carried out specified procedures, which have been agreed to
by the Underwriter, with respect to certain information in the Prospectus
specified by the Underwriter, and on the basis of such procedures, they have
found such information to be in agreement with the general accounting records
of the Company and its subsidiaries.
21
Exhibit A
1,100,000 SHARES*
UnionBancorp, Inc.
Common Stock
PRICING AGREEMENT
__________, 1996
HOEFER & ARNETT INCORPORATED
353 Sacramento Street, Tenth Floor
San Francisco, California 94111
Ladies and Gentlemen:
Reference is made to the Underwriting Agreement, dated _______ __, 1996
(the "Underwriting Agreement"), relating to the purchase by Hoefer & Arnett
Incorporated (the "Underwriter") of the above-referenced Common Stock (the
"Shares") of UnionBancorp, Inc. (the "Company").
Pursuant to Section 3 of the Underwriting Agreement, the Company agrees
with the Underwriter as follows:
1. The initial public offering price per share of the Shares determined
as provided in said Section 3 shall be $_______.
2. The purchase price per share of the Shares to be paid by the
Underwriter shall be $________, being an amount equal to the initial public
offering price set forth above, less $_______ per Share.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof,
whereupon this instrument, along with all counterparts, will become a binding
agreement between the Underwriter and the Company in accordance with its terms.
Very truly yours,
UNIONBANCORP, INC.
By:______________________________
Name:
Title:
Confirmed and Accepted, as of the date
first above written:
HOEFER & ARNETT INCORPORATED
By: ____________________________________
_______________
* Plus an option to purchase up to 165,000 Additional Shares to cover
over-allotments.