This excerpt taken from the FMBI 8-K filed Mar 14, 2006.
March 9, 2006
KEEFE, BRUYETTE & WOODS, INC.
787 Seventh Avenue, Fourth Floor
New York, New York 10019
Ladies and Gentlemen:
First Midwest Bancorp, Inc., a Delaware corporation (the Company) confirms its agreement with the several underwriters listed in Schedule A hereto (the Underwriters), for whom you are acting as representative (the Representative), with respect to (i) the sale by the Company and the purchase by the Underwriters of an aggregate of 3,825,000 shares of common stock, $0.01 par value per share, of the Company (Common Stock) set forth in Schedule A hereto and (ii) the grant by the Company to the Underwriters of the option described in Section 2(b) hereof to purchase all or any part of 573,750 additional shares of Common Stock to cover over-allotments, if any. The aforesaid 3,825,000 shares of Common Stock (the Initial Securities) to be purchased by the Underwriters and all or any part of the 573,750 shares of Common Stock subject to the option described in Section 2(b) hereof (the Option Securities) are hereinafter called, collectively, the Securities.
The Company understands that the Underwriters propose to make a public offering of the Securities as soon as the Representative deems advisable after this Agreement has been executed and delivered.
The Company has filed with the Securities and Exchange Commission (the Commission) a registration statement (No. 333-132137) including a prospectus relating to, among other securities, the Securities and has filed with or transmitted for filing to, or shall promptly after the date of this Agreement file with or transmit for filing to, the Commission a prospectus supplement (in the form made available to the Underwriters by the Company to be used, together with the Basic Prospectus (as defined below), to confirm sales of the Securities (or in the form first made available to the Underwriters by the Company to meet requests of purchasers pursuant to Rule 173 under the Securities Act), the Prospectus Supplement) pursuant to Rule 424 under the Securities Act of 1933, as amended (the 1933 Act). The term Registration Statement means the registration statement as amended to the date of this Agreement, including the information (if any) deemed to be part of the registration statement at the time of effectiveness pursuant to Rule 430A or Rule 430B under the Securities Act. The term Basic Prospectus means the prospectus, dated March 1, 2006, relating to the Securities included in the Registration Statement. The term Prospectus means the Basic Prospectus as supplemented by the Prospectus Supplement. The term Preliminary Prospectus means the preliminary prospectus supplement dated March 6, 2006, together with the Basic Prospectus. The documents listed on Schedule D attached hereto and each road show (as defined in Rule 433 under the 1933 Act), if any, related to the offering of the Securities contemplated hereby that is a written communication (as defined in Rule 405 under the 1933 Act) are referred to herein as Permitted Free Writing Prospectuses. For purposes of this Agreement, all references to the Registration Statement, the Preliminary Prospectus, the Prospectus or any Permitted Free Writing Prospectus or any amendment or supplement to any of the foregoing shall be deemed to include the copy filed with the Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval system (EDGAR), if such filing is so required.
All references in this Agreement to financial statements and schedules and other information which is contained, included, described, referred to or stated in the Registration Statement, the Preliminary Prospectus, the Prospectus or any Permitted Free Writing Prospectus (or other references of like import) shall be deemed to mean and include all such financial statements and schedules and other information which is incorporated by reference in the Registration Statement, the Preliminary Prospectus, the Prospectus or any Permitted Free Writing Prospectus, as the case may be. Any reference herein to the terms amend, amendment or supplement with respect to the Registration Statement, the Preliminary Prospectus, the Prospectus or any Permitted Free Writing Prospectus shall be deemed to refer to and include the filing of any document under the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder (collectively, the 1934 Act) on or after the initial effective date of the Registration Statement, or the date of the Preliminary Prospectus, the Prospectus or such Permitted Free Writing Prospectus, as the case may be, and deemed to be incorporated therein by reference.