SYNOVUS FINANCIAL CORP. 12,000,000 Tangible Equity Units Underwriting Agreement
Exhibit 1.2
Execution Version
12,000,000 Tangible Equity Units
Underwriting Agreement
Underwriting Agreement
April 28, 2010
X.X. Xxxxxx Securities Inc.
as Representative of the several Underwriters
listed in Schedule 1 hereto
as Representative of the several Underwriters
listed in Schedule 1 hereto
c/o X.X. Xxxxxx Securities Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Synovus Financial Corp., a Georgia corporation (the “Company”), proposes to issue and sell to
the several Underwriters listed in Schedule 1 hereto (the “Underwriters”), for whom you are acting
as representative (the “Representative”), an aggregate of 12,000,000 Tangible Equity Units
(“tMEDS”) of the Company (the “Underwritten Securities”) and, at the option of the Underwriters, up
to an additional 1,800,000 tMEDS (the “Option Securities”). The Underwritten Securities and the
Option Securities are herein referred to as the “Securities.” Each Security has a stated amount of
$25 (the “Stated Amount”) and consists of (1) a pre-paid stock purchase contract (each, a “Purchase
Contract”) under which the holder has purchased and the Company will agree to automatically deliver
on May 15, 2013 (the “Purchase Contract Settlement Date”), subject to early settlement of such
Purchase Contract pursuant to the provisions thereof and of the Purchase Contract Agreement (the
“Purchase Contract Agreement”), to be dated as of the Closing Date (as defined herein), between the
Company, The Bank of New York Mellon Trust Company, N.A., as purchase contract agent (the “Purchase
Contract Agent”) and the Trustee (as defined below), a number of shares of common stock (the
“Issuable Common Stock”) of the Company, par value $1.00 per share (the “Common Stock”), determined
pursuant to the terms of the Purchase Contract and the Purchase Contract Agreement and (2) a junior
subordinated amortizing note with a scheduled final installment payment date of May 15, 2013 (each,
an “Amortizing Note”) issued by the Company, each of which will have an initial principal amount of
$5.098197 and will pay equal quarterly installments of $0.515625, which in the aggregate would be
equivalent to a 13.00% cash distribution per year on the Stated Amount per Security.
The Amortizing Notes will be issued pursuant to a junior subordinated indenture, dated as of
May 4, 2010 (as amended and supplemented by that first supplemental indenture dated as of May 4,
2010, the “Indenture”), between the Company and The Bank of New York Mellon Trust Company, N.A., as
trustee (the “Trustee”). The Purchase Contracts will be issued pursuant to the Purchase Contract
Agreement. The Indenture and the Purchase Contract Agreement are referred to herein collectively
as the “Securities Agreements.” The Amortizing Notes, the Purchase Contracts and the Issuable
Common Stock are referred to herein collectively as the “Component Securities.”
The Company hereby confirms its agreement with the several Underwriters concerning the
purchase and sale of the Securities, as follows:
1. Registration Statement. The Company has prepared and filed with the Securities and
Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended, and the rules
and regulations of the Commission thereunder (collectively, the “Securities Act”), a registration
statement (File No. 333-166300), including a prospectus, relating to the Securities. Such
registration statement, as amended at the time it became effective, including the information, if
any, deemed pursuant to Rule 430A, 430B or 430C under the Securities Act to be part of the
registration statement at the time of its effectiveness (“Rule 430 Information”), is referred to
herein as the “Registration Statement”; and as used herein, the term “Preliminary Prospectus” means
each prospectus included in such registration statement (and any amendments thereto) before
effectiveness, any prospectus filed with the Commission pursuant to Rule 424(a) under the
Securities Act and the prospectus included in the Registration Statement at the time of its
effectiveness that omits Rule 430 Information, and the term “Prospectus” means the prospectus in
the form first used (or made available upon request of purchasers pursuant to Rule 173 under the
Securities Act) in connection with confirmation of sales of the Securities. If the Company has
filed an abbreviated registration statement pursuant to Rule 462(b) under the Securities Act (the
“Rule 462 Registration Statement”), then any reference herein to the term “Registration Statement”
shall be deemed to include such Rule 462 Registration Statement. Any reference in this Agreement
to the Registration Statement, any Preliminary Prospectus or the Prospectus shall be deemed to
refer to and include the documents incorporated by reference therein pursuant to Item 12 of Form
S-3 under the Securities Act, as of the effective date of the Registration Statement or the date of
such Preliminary Prospectus or the Prospectus, as the case may be, and any reference to “amend,”
“amendment” or “supplement” with respect to the Registration Statement, any Preliminary Prospectus
or the Prospectus shall be deemed to refer to and include any documents filed after such date under
the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission
thereunder (collectively, the “Exchange Act”) that are deemed to be incorporated by reference
therein. Capitalized terms used but not defined herein shall have the meanings given to such terms
in the Registration Statement and the Prospectus.
At or prior to the Applicable Time (as defined below), the Company had prepared the following
information (collectively with the pricing information set forth on Annex A, including a Pricing
Term Sheet in the form attached hereto as Annex D, the “Pricing Disclosure Package”): a Preliminary
Prospectus dated April 26, 2010 and each “free-writing prospectus” (as defined pursuant to Rule 405
under the Securities Act) listed on Annex A hereto. “Applicable Time” means 7:30 p.m., New York
City time, on April 28, 2010.
2. Purchase of the Securities by the Underwriters.
(a) The Company agrees to issue and sell the Underwritten Securities to the several
Underwriters as provided in this Agreement, and each Underwriter, on the basis of the
representations, warranties and agreements set forth herein and subject to the conditions set forth
herein, agrees, severally and not jointly, to purchase from the Company the respective number of
Underwritten Securities set forth opposite such Underwriter’s name in Schedule 1 hereto at a price
per Security (the “Purchase Price”) of $24.25. In addition, the Company agrees to issue
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and sell the Option Securities to the several Underwriters as provided in this Agreement, and
the Underwriters, on the basis of the representations, warranties and agreements set forth herein
and subject to the conditions set forth herein, shall have the option to purchase, severally and
not jointly, from the Company the Option Securities at the Purchase Price.
(b) If any Option Securities are to be purchased, the number of Option Securities to be
purchased by each Underwriter shall be the number of Option Securities which bears the same ratio
to the aggregate number of Option Securities being purchased as the number of Underwritten
Securities set forth opposite the name of such Underwriter in Schedule 1 hereto (or such number
increased as set forth in Section 10 hereof) bears to the aggregate number of Underwritten
Securities being purchased from the Company by the several Underwriters, subject, however, to such
adjustments to eliminate any fractional Securities as the Representative in its sole discretion
shall make.
(c) The Underwriters may exercise the option to purchase Option Securities at any time in
whole, or from time to time in part, on or before the thirteenth day following the date of the
Prospectus, by written notice from the Representative to the Company. Such notice shall set forth
the aggregate number of Option Securities as to which the option is being exercised and the date
and time when the Option Securities are to be delivered and paid for, which may be the same date
and time as the Closing Date (as hereinafter defined) but shall not be earlier than the Closing
Date or later than the tenth full business day (as hereinafter defined) after the date of such
notice (unless such time and date are postponed in accordance with the provisions of Section 10
hereof). Any such notice shall be given at least two business days prior to the date and time of
delivery specified therein. Notwithstanding anything to the contrary contained herein (including
in Section 10 hereof), any Additional Closing Date (as defined below) must occur within the
thirteen day period that begins on and includes the Closing Date (as defined below).
(d) The Company understands that the Underwriters intend to make a public offering of the
Securities as soon after the effectiveness of this Agreement as in the judgment of the
Representative is advisable, and initially to offer the Securities on the terms set forth in the
Prospectus. The Company acknowledges and agrees that the Underwriters may offer and sell
Securities to or through any affiliate of an Underwriter.
(e) Payment for the Securities shall be made by wire transfer in immediately available funds
to the account specified by the Company to the Representative in the case of the Securities, at the
offices of Wachtell, Lipton, Xxxxx & Xxxx, 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, XX 00000 at 10:00 A.M.,
New York City time, on May 4, 2010, or at such other time or place on the same or such other date,
not later than the fifth business day thereafter, as the Representative and the Company may agree
upon in writing or, in the case of the Option Securities, on the date and at the time and place
specified by the Representative in the written notice of the Underwriters’ election to purchase
such Option Securities. The time and date of such payment for the Underwritten Securities is
referred to herein as the “Closing Date,” and the time and date for such payment for the Option
Securities, if other than the Closing Date, is herein referred to as the “Additional Closing Date.”
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Payment for the Securities to be purchased on the Closing Date or the Additional Closing Date,
as the case may be, shall be made against delivery to the Representative for the respective
accounts of the several Underwriters of the Securities to be purchased on such date in such names
and in such denominations as the Representative shall request in writing not later than two full
business days prior to the Closing Date or the Additional Closing Date, as the case may be, with
any transfer taxes payable in connection with the sale of such Securities duly paid by the Company.
Delivery of the Securities shall be made through the facilities of The Depository Trust Company
(“DTC”) unless the Representative shall otherwise instruct. The certificates for the Securities
will be made available for inspection and packaging by the Representative at the office of DTC or
its designated custodian not later than 1:00 P.M., New York City time, on the business day prior to
the Closing Date or the Additional Closing Date, as the case may be.
(f) The Company acknowledges and agrees that the Underwriters are acting solely in the
capacity of an arm’s length contractual counterparty to the Company with respect to the offering of
Securities contemplated hereby (including in connection with determining the terms of the offering)
and not as a financial advisor or a fiduciary to, or an agent of, the Company or any other person.
Additionally, neither the Representative nor any other Underwriter is advising the Company or any
other person as to any legal, tax, investment, accounting or regulatory matters in any
jurisdiction. The Company shall consult with its own advisors concerning such matters and shall be
responsible for making its own independent investigation and appraisal of the transactions
contemplated hereby, and the Underwriters shall have no responsibility or liability to the Company
with respect thereto. Any review by the Underwriters of the Company, the transactions contemplated
hereby or other matters relating to such transactions will be performed solely for the benefit of
the Underwriters and shall not be on behalf of the Company.
3. Representations and Warranties of the Company. The Company represents and warrants
to each Underwriter that:
(a) Preliminary Prospectus. No order preventing or suspending the use of any Preliminary
Prospectus has been issued by the Commission, and each Preliminary Prospectus included in the
Pricing Disclosure Package, at the time of filing thereof, complied in all material respects with
the Securities Act, and no Preliminary Prospectus, at the time of filing thereof, contained any
untrue statement of a material fact or omitted to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they were made, not
misleading; provided that the Company makes no representation and warranty with respect to
any statements or omissions made in reliance upon and in conformity with information relating to
any Underwriter furnished to the Company in writing by such Underwriter through the Representative
expressly for use in any Preliminary Prospectus, it being understood and agreed that the only such
information furnished by any Underwriter consists of the information described as such in Section
7(b) hereof.
(b) Pricing Disclosure Package. The Pricing Disclosure Package as of the Applicable Time did
not, and as of the Closing Date and as of the Additional Closing Date, as the case may be, will
not, contain any untrue statement of a material fact or omit to state a material fact necessary in
order to make the statements therein, in the light of the circumstances under which they were made,
not misleading; provided that the Company makes no representation and warranty with respect
to any statements or omissions made in reliance upon
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and in conformity with information relating to any Underwriter furnished to the Company in
writing by such Underwriter through the Representative expressly for use in such Pricing Disclosure
Package, it being understood and agreed that the only such information furnished by any Underwriter
consists of the information described as such in Section 7(b) hereof.
(c) Issuer Free Writing Prospectus. Other than the Registration Statement, the Preliminary
Prospectus and the Prospectus, the Company (including its agents and representatives, other than
the Underwriters in their capacity as such) has not prepared, used, authorized, approved or
referred to and will not prepare, use, authorize, approve or refer to any “written communication”
(as defined in Rule 405 under the Securities Act) that constitutes an offer to sell or solicitation
of an offer to buy the Securities (each such communication by the Company or its agents and
representatives (other than a communication referred to in clause (i) below) an “Issuer Free
Writing Prospectus”) other than (i) any document not constituting a prospectus pursuant to Section
2(a)(10)(a) of the Securities Act or Rule 134 under the Securities Act or (ii) the documents listed
on Annex A hereto, each electronic road show and any other written communications approved in
writing in advance by the Representative. Each such Issuer Free Writing Prospectus complied in all
material respects with the Securities Act, has been or will be (within the time period specified in
Rule 433) filed in accordance with the Securities Act (to the extent required thereby) and, when
taken together with the Preliminary Prospectus accompanying, or delivered prior to delivery of,
such Issuer Free Writing Prospectus, did not, and as of the Closing Date and as of the Additional
Closing Date, as the case may be, will not, contain any untrue statement of a material fact or omit
to state a material fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided that the Company makes
no representation or warranty with respect to any statements or omissions made in each such Issuer
Free Writing Prospectus or Preliminary Prospectus in reliance upon and in conformity with
information relating to any Underwriter furnished to the Company in writing by such Underwriter
through the Representative expressly for use in such Issuer Free Writing Prospectus or Preliminary
Prospectus, it being understood and agreed that the only such information furnished by any
Underwriter consists of the information described as such in Section 7(b) hereof.
(d) Registration Statement and Prospectus. The Registration Statement is an “automatic shelf
registration statement” as defined under Rule 405 of the Securities Act that has been filed with
the Commission not earlier than three years prior to the date hereof; and no notice of objection of
the Commission to the use of such registration statement or any post-effective amendment thereto
pursuant to Rule 401(g)(2) under the Securities Act has been received by the Company. No order
suspending the effectiveness of the Registration Statement has been issued by the Commission, and
no proceeding for that purpose or pursuant to Section 8A of the Securities Act against the Company
or related to the offering of the Securities has been initiated or threatened by the Commission; as
of the applicable effective date of the Registration Statement and any post-effective amendment
thereto, the Registration Statement and any such post-effective amendment complied and will comply
in all material respects with the Securities Act and the Trust Indenture Act of 1939, as amended,
and the rules and regulations of the Commission thereunder (collectively, the “Trust Indenture
Act”) and did not and will not contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary in order to make the statements therein
not misleading; and as of the date of the Prospectus and any amendment or supplement thereto and as
of the Closing Date and as of
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the Additional Closing Date, as the case may be, the Prospectus will not contain any untrue
statement of a material fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were made, not misleading;
provided that the Company makes no representation and warranty with respect to any
statements or omissions made in reliance upon and in conformity with information relating to any
Underwriter furnished to the Company in writing by such Underwriter through the Representative
expressly for use in the Registration Statement and the Prospectus and any amendment or supplement
thereto, it being understood and agreed that the only such information furnished by any Underwriter
consists of the information described as such in Section 7(b) hereof.
(e) Incorporated Documents. The documents incorporated by reference in the Registration
Statement, the Prospectus and the Pricing Disclosure Package, when they were filed with the
Commission conformed in all material respects to the requirements of the Exchange Act, and none of
such documents contained any untrue statement of a material fact or omitted to state a material
fact necessary to make the statements therein, in the light of the circumstances under which they
were made, not misleading; and any further documents so filed and incorporated by reference in the
Registration Statement, the Prospectus or the Pricing Disclosure Package, when such documents are
filed with the Commission, will conform in all material respects to the requirements of the
Exchange Act and will not contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in the light of the circumstances under
which they were made, not misleading.
(f) Financial Statements. The financial statements (including the related notes thereto) of
the Company and its consolidated subsidiaries included or incorporated by reference in the
Registration Statement, the Pricing Disclosure Package and the Prospectus comply in all material
respects with the applicable requirements of the Securities Act and the Exchange Act, as
applicable, and present fairly the financial position of the Company and its consolidated
subsidiaries as of the dates indicated and the results of their operations and the changes in their
cash flows for the periods specified; such financial statements have been prepared in conformity
with generally accepted accounting principles in the United States (“GAAP”) applied on a consistent
basis throughout the periods covered thereby, and any supporting schedules included or incorporated
by reference in the Registration Statement present fairly the information required to be stated
therein; and the other financial information included or incorporated by reference in the
Registration Statement, the Pricing Disclosure Package and the Prospectus has been derived from the
accounting records of the Company and its consolidated subsidiaries and presents fairly the
information shown thereby.
(g) No Material Adverse Change. Since the date of the most recent financial statements of the
Company included or incorporated by reference in the Registration Statement, the Pricing Disclosure
Package and the Prospectus, (i) there has not been any change in the capital stock (other than the
issuance of shares of Common Stock upon exercise of stock options and warrants described as
outstanding in, and the grant of options and awards under existing equity incentive plans described
in, the Registration Statement, the Pricing Disclosure Package and the Prospectus), short-term debt
or long-term debt of the Company or any of its subsidiaries, or any dividend or distribution of any
kind declared, set aside for payment, paid or made by the Company on any class of capital stock, or
any material adverse change, or any development
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involving a prospective material adverse change, in or affecting the business, properties,
management, financial position, stockholders’ equity, results of operations or prospects of the
Company and its subsidiaries taken as a whole; (ii) neither the Company nor any of its subsidiaries
has entered into any transaction or agreement (whether or not in the ordinary course of business)
that is material to the Company and its subsidiaries taken as a whole or incurred any liability or
obligation, direct or contingent, that is material to the Company and its subsidiaries taken as a
whole; and (iii) neither the Company nor any of its subsidiaries has sustained any loss or
interference with its business that is material to the Company and its subsidiaries taken as a
whole and that is either from fire, explosion, flood or other calamity, whether or not covered by
insurance, or from any labor disturbance or dispute or any action, order or decree of any court or
arbitrator or governmental or regulatory authority, except in each case as otherwise disclosed in
the Registration Statement, the Pricing Disclosure Package and the Prospectus.
(h) Organization and Good Standing. The Company and each of its subsidiaries are incorporated
and are validly existing and in good standing under the laws of their respective jurisdictions of
organization and, in the case of each of The First National Bank of Jasper, The National Bank of
South Carolina and Synovus Trust Company, are validly chartered as a national bank. The Company
and each of its subsidiaries are duly qualified to do business and are in good standing in each
jurisdiction in which their respective ownership or lease of property or the conduct of their
respective businesses requires such qualification, and have all power and authority necessary to
own or hold their respective properties and to conduct the businesses in which they are engaged,
except where the failure to be so qualified or in good standing or have such power or authority
would not, individually or in the aggregate, have a material adverse effect on the business,
properties, management, financial position, stockholders’ equity, results of operations or
prospects of the Company and its subsidiaries taken as a whole or on the performance by the Company
of its obligations under this Agreement (a “Material Adverse Effect”). The Company is duly
registered as a bank holding company under the Bank Holding Company Act of 1956, as amended (the
“BHCA”) and is a financial holding company pursuant to Section 4(l) of the BHCA and meets the
applicable requirements for qualification as such. The Company does not own or control, directly
or indirectly, any corporation, association or other entity other than the subsidiaries listed on
Annex B. The Company does not have any significant subsidiaries (as such term is defined in Rule
1-02 of Regulation S-X) (each a “Significant Subsidiary” and, collectively, the “Significant
Subsidiaries”) other than those listed as such on Annex B.
(i) Capitalization. The Company has an authorized capitalization as set forth in the
Registration Statement, the Pricing Disclosure Package and the Prospectus under the heading
“Capitalization”; all the outstanding shares of capital stock of the Company have been duly and
validly authorized and issued and are fully paid and non-assessable and are not subject to any
pre-emptive or similar rights; except as described in or expressly contemplated by the Pricing
Disclosure Package and the Prospectus, there are no outstanding rights (including, without
limitation, pre-emptive rights), warrants or options to acquire, or instruments convertible into or
exchangeable for, any shares of capital stock or other equity interest in the Company or any of its
subsidiaries, or any contract, commitment, agreement, understanding or arrangement of any kind
relating to the issuance of any capital stock of the Company or any such subsidiary, any such
convertible or exchangeable securities or any such rights, warrants or options; the capital stock
of the Company conforms in all material respects to the description thereof contained in the
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Registration Statement, the Pricing Disclosure Package and the Prospectus; and all the
outstanding shares of capital stock or other equity interests of each subsidiary owned, directly or
indirectly, by the Company have been duly and validly authorized and issued, are fully paid and
non-assessable and are owned directly or indirectly by the Company, free and clear of any lien,
charge, encumbrance, security interest, restriction on voting or transfer or any other claim of any
third party.
(j) Stock Options. With respect to the stock options (the “Stock Options”) granted pursuant
to the stock-based compensation plans of the Company and its subsidiaries (the “Company Stock
Plans”), (i) each Stock Option intended to qualify as an “incentive stock option” under Section 422
of the Code so qualifies, (ii) each grant of a Stock Option was duly authorized no later than the
date on which the grant of such Stock Option was by its terms to be effective (the “Grant Date”) by
all necessary corporate action, including, as applicable, approval by the board of directors of the
Company (or a duly constituted and authorized committee thereof) and any required stockholder
approval by the necessary number of votes or written consents, and the award agreement governing
such grant (if any) was duly executed and delivered by each party thereto, (iii) each such grant
was made in accordance with the terms of the Company Stock Plans, the Exchange Act and all other
applicable laws and regulatory rules or requirements, including the rules of the New York Stock
Exchange and any other exchange on which Company securities are traded, and (iv) each such grant
was properly accounted for in accordance with GAAP in the financial statements (including the
related notes) of the Company and disclosed in the Company’s filings with the Commission in
accordance with the Exchange Act and all other applicable laws. The Company has not knowingly
granted, and there is no and has been no policy or practice of the Company of granting, Stock
Options prior to, or otherwise coordinating the grant of Stock Options with, the release or other
public announcement of material information regarding the Company or its subsidiaries or their
results of operations or prospects.
(k) Due Authorization. The Company has full right, power and authority to execute and deliver
this Agreement and to perform its obligations hereunder; and all action required to be taken for
the due and proper authorization, execution and delivery by it of this Agreement and the
consummation by it of the transactions contemplated hereby has been duly and validly taken.
(l) Underwriting Agreement. This Agreement has been duly authorized, executed and delivered
by the Company.
(m) The Securities. The Securities have been duly authorized by the Company and, when duly
executed, authenticated, issued and delivered as provided in the Purchase Contract Agreement
against payment therefor in accordance with the terms of this Agreement and the Securities
Agreements, will be duly and validly issued and outstanding and will constitute valid and binding
obligations of the Company, enforceable against the Company in accordance with their terms, except
as limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or similar
laws relating to or affecting enforcement of creditors’ rights generally or by general equitable
principles (whether considered in a proceeding at law or in equity) (collectively, the
“Enforceability Exceptions”). The Securities will be entitled to the benefits of the Securities
Agreements; the Securities will conform in all material respects to the descriptions thereof in the
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Registration Statement, the Pricing Disclosure Package, and the Prospectus; and the issuance
of the Securities is not subject to preemptive or similar rights.
(n) The Amortizing Notes. The Amortizing Notes have been duly authorized by the Company and,
when duly executed, authenticated, issued and delivered as provided in the Indenture and in
accordance with the terms of this Agreement, will be duly and validly issued and outstanding and
will constitute valid and binding obligations of the Company, enforceable against the Company in
accordance with their terms, except as limited by the Enforceability Exceptions. The Amortizing
Notes will be in the form contemplated by, and will be entitled to the benefits of the Indenture;
and the Amortizing Notes will conform in all material respects to the descriptions thereof in the
Registration Statement, the Pricing Disclosure Package, and the Prospectus.
(o) The Purchase Contracts. The Purchase Contracts have been duly authorized by the Company
and, when duly executed, authenticated, issued and delivered as provided in the Purchase Contract
Agreement and in accordance with the terms of this Agreement, will be duly and validly issued and
outstanding and will constitute valid and binding obligations of the Company, enforceable against
the Company in accordance with their terms, except as limited by the Enforceability Exceptions.
The Purchase Contracts will be in the form contemplated by, and will be entitled to the benefits of
the Purchase Contract Agreement; the Purchase Contracts will conform in all material respects to
the descriptions thereof in the Registration Statement, the Pricing Disclosure Package, and the
Prospectus; and the issuance of the Purchase Contracts is not subject to preemptive or similar
rights.
(p) The Securities Agreements. The Securities Agreements have been duly authorized by the
Company and, when duly executed and delivered by the Company in accordance with the terms of this
Agreement will be duly executed and delivered by the Company and will constitute valid and binding
agreements of the Company, enforceable against the Company in accordance with their terms, except
as limited by the Enforceability Exceptions. The Securities Agreements will conform in all
material respects to the descriptions thereof in the Registration Statement, the Pricing Disclosure
Package, and the Prospectus and will be in substantially the form filed or incorporated by
reference, as the case may be, as exhibits to the Registration Statement. The Indenture has been
duly qualified under the Trust Indenture Act and complies in all material respects with the
applicable requirements of the Trust Indenture Act.
(q) The Issuable Common Stock. The Issuable Common Stock has been duly authorized and, when
issued upon settlement of the Purchase Contracts in accordance with the terms thereof, will be duly
and validly issued, will be fully paid and nonassessable and will conform to the descriptions
thereof in the Registration Statement, the Pricing Disclosure Package and the Prospectus; and the
issuance of the Securities and the issuance of the Issuable Common Stock are not subject to any
preemptive or similar rights.
(r) No Violation or Default. Neither the Company nor any of its Significant Subsidiaries is
(i) in violation of its charter or by-laws or similar organizational documents; (ii) in default,
and no event has occurred that, with notice or lapse of time or both, would constitute such a
default, in the due performance or observance of any term, covenant or condition contained in any
indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the
Company or any of its subsidiaries is a party or by which the Company
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or any of its subsidiaries is bound or to which any of the property or assets of the Company
or any of its subsidiaries is subject; or (iii) in violation of any law or statute or any judgment,
order, rule or regulation of any court or arbitrator or governmental or regulatory authority,
except, in the case of clauses (ii) and (iii) above, for any such default or violation that would
not, individually or in the aggregate, have a Material Adverse Effect.
(s) No Conflicts. The execution, delivery and performance by the Company of this Agreement,
the Securities Agreements and the issuance and sale of the Securities and the Component Securities
and the consummation of the transactions contemplated by this Agreement will not (i) conflict with
or result in a breach or violation of any of the terms or provisions of, or constitute a default
under, or result in the creation or imposition of any lien, charge or encumbrance upon any property
or assets of the Company or any of its subsidiaries pursuant to, any indenture, mortgage, deed of
trust, loan agreement 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 is bound or to which any
of the property or assets of the Company or any of its subsidiaries is subject, (ii) result in any
violation of the provisions of the charter or by-laws or similar organizational documents of the
Company or any of its subsidiaries or (iii) result in the violation of any law or statute or any
judgment, order, rule or regulation of any court or arbitrator or governmental or regulatory
authority, except, in the case of clauses (i) and (iii) above, for any such conflict, breach,
violation or default that would not, individually or in the aggregate, have a Material Adverse
Effect.
(t) No Consents Required. No consent, approval, authorization, order, license, registration
or qualification of or with any court or arbitrator or governmental or regulatory authority is
required for the execution, delivery and performance by the Company of this Agreement, the
Securities Agreements, the issuance and sale of the Securities and the Component Securities and the
consummation of the transactions contemplated by this Agreement, except as required by the New York
Stock Exchange, for the registration of the Securities under the Securities Act and such consents,
approvals, authorizations, orders and registrations or qualifications as may be required by the
Financial Industry Regulatory Authority, Inc. (“FINRA”) and under applicable state securities laws
in connection with the purchase and distribution of the Securities by the Underwriters.
(u) Legal Proceedings. Except as described in the Registration Statement, the Pricing
Disclosure Package and the Prospectus, there are no legal, governmental or regulatory
investigations, actions, suits or proceedings pending to which the Company or any of its
subsidiaries is or may be a party or to which any property of the Company or any of its
subsidiaries is or may be the subject that, individually or in the aggregate, if determined
adversely to the Company or any of its subsidiaries, could reasonably be expected to have a
Material Adverse Effect; to the knowledge of the Company, no such investigations, actions, suits or
proceedings are threatened or contemplated by any governmental or regulatory authority or
threatened by others; and (i) there are no current or pending legal, governmental or regulatory
actions, suits or proceedings that are required under the Securities Act to be described in the
Registration Statement, the Pricing Disclosure Package or the Prospectus that are not so described
in the Registration Statement, the Pricing Disclosure Package and the Prospectus and (ii) there are
no statutes, regulations or contracts or other documents that are required under the Securities Act
to be filed as exhibits to the Registration Statement or described in the
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Registration Statement, the Pricing Disclosure Package or the Prospectus that are not so filed
as exhibits to the Registration Statement or described in the Registration Statement, the Pricing
Disclosure Package and the Prospectus.
(v) Independent Accountants. KPMG LLP, who have certified certain financial statements of the
Company and its subsidiaries, is an independent registered public accounting firm with respect to
the Company and its subsidiaries within the applicable rules and regulations adopted by the
Commission and the Public Company Accounting Oversight Board (United States) and as required by the
Securities Act.
(w) Title to Real and Personal Property. The Company and its subsidiaries have good and
marketable title in fee simple (in the case of real property) to, or have valid and marketable
rights to lease or otherwise use, all items of real and personal property and assets that are
material to the respective businesses of the Company and its subsidiaries, in each case free and
clear of all liens, encumbrances, claims and defects and imperfections of title except those that
(i) do not materially interfere with the use made and proposed to be made of such property by the
Company and its subsidiaries or (ii) could not reasonably be expected, individually or in the
aggregate, to have a Material Adverse Effect.
(x) Title to Intellectual Property. The Company and its subsidiaries own or possess adequate
rights to use all material patents, patent applications, trademarks, service marks, trade names,
trademark registrations, service xxxx registrations, copyrights, licenses and know-how (including
trade secrets and other unpatented and/or unpatentable proprietary or confidential information,
systems or procedures) necessary for the conduct of their respective businesses as currently
conducted, and the conduct of their respective businesses will not conflict in any material respect
with any such rights of others. The Company and its subsidiaries have not received any notice of
any claim of infringement, misappropriation or conflict with any such rights of others in
connection with its patents, patent rights, licenses, inventions, trademarks, service marks, trade
names, copyrights and know-how, which could reasonably be expected to result in a Material Adverse
Effect.
(y) No Undisclosed Relationships. No relationship, direct or indirect, exists between or
among the Company or any of its subsidiaries, on the one hand, and the directors, officers,
stockholders, customers or suppliers of the Company or any of its subsidiaries, on the other, that
is required by the Securities Act to be described in the Registration Statement and the Prospectus
and that is not so described in such documents and in the Pricing Disclosure Package.
(z) Investment Company Act. The Company is not and, after giving effect to the offering and
sale of the Securities and the application of the proceeds thereof as described in the Registration
Statement, the Pricing Disclosure Package and the Prospectus, the Company will not be required to
register as an “investment company” or an entity “controlled” by an “investment company” within the
meaning of the Investment Company Act of 1940, as amended, and the rules and regulations of the
Commission thereunder (collectively, the “Investment Company Act”).
(aa) Taxes. The Company and its subsidiaries have paid all federal, state, local and foreign
taxes and filed all tax returns required to be paid or filed through the date hereof except
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with respect to any taxes that are currently being contested in good faith or as would not
have, individually or in the aggregate, a Material Adverse Effect; and except as otherwise
disclosed in the Registration Statement, the Pricing Disclosure Package and the Prospectus, there
is no tax deficiency that has been, or could reasonably be expected to be, asserted against the
Company or any of its subsidiaries or any of their respective properties or assets, except for tax
deficiencies that would not, individually or in the aggregate, have a Material Adverse Effect.
(bb) Licenses and Permits. The Company and its subsidiaries possess all licenses,
certificates, permits and other authorizations issued by, and have made all declarations and
filings with, the appropriate federal, state, local or foreign governmental or regulatory
authorities that are necessary for the ownership or lease of their respective properties or the
conduct of their respective businesses as described in the Registration Statement, the Pricing
Disclosure Package and the Prospectus, except where the failure to possess or make the same would
not, individually or in the aggregate, have a Material Adverse Effect; and except as described in
the Registration Statement, the Pricing Disclosure Package and the Prospectus, neither the Company
nor any of its subsidiaries has received notice of any revocation or modification of any such
license, certificate, permit or authorization or has any reason to believe that any such license,
certificate, permit or authorization will not be renewed in the ordinary course, except where the
failure to renew would not, individually or in the aggregate, have a Material Adverse Effect.
(cc) No Labor Disputes. No labor disturbance by or dispute with employees of the Company or
any of its subsidiaries exists or, to the knowledge of the Company, is contemplated or threatened,
and the Company is not aware of any existing or imminent labor disturbance by, or dispute with, the
employees of any of its or its subsidiaries’ principal suppliers, contractors or customers, except
as would not have a Material Adverse Effect.
(dd) Compliance with and Liability under Environmental Laws. (i) The Company and its
subsidiaries (a) are, and at all prior times were, in compliance with any and all applicable
federal, state, local and foreign laws, rules, regulations, requirements, decisions, judgments,
decrees, orders and the common law relating to pollution or the protection of the environment,
natural resources or human health or safety, including those relating to the generation, storage,
treatment, use, handling, transportation, Release or threat of Release of Hazardous Materials
(collectively, “Environmental Laws”), (b) have received and are in compliance with all permits,
licenses, certificates or other authorizations or approvals required of them under applicable
Environmental Laws to conduct their respective businesses, (c) have not received notice of any
actual or potential liability under or relating to, or actual or potential violation of, any
Environmental Laws, including for the investigation or remediation of any Release or threat of
Release of Hazardous Materials, and have no knowledge of any event or condition that would
reasonably be expected to result in any such notice, (d) are not conducting or paying for, in whole
or in part, any investigation, remediation or other corrective action pursuant to any Environmental
Law at any location, and (e) are not a party to any order, decree or agreement that imposes any
obligation or liability under any Environmental Law, and (ii) there are no costs or liabilities
associated with Environmental Laws of or relating to the Company or its subsidiaries, except in the
case of each of (i) and (ii) above, for any such matter, as would not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect; and (iii) except as described
in the Registration Statement, the Pricing Disclosure Package and the Prospectus, (a) there are no
proceedings that are pending, or that are known to be contemplated, against the
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Company or any of its subsidiaries under any Environmental Laws in which a governmental entity
is also a party, other than such proceedings regarding which it is reasonably believed no monetary
sanctions of $100,000 or more will be imposed, (b) the Company and its subsidiaries are not aware
of any facts or issues regarding compliance with Environmental Laws, or liabilities or other
obligations under Environmental Laws, including the Release or threat of Release of Hazardous
Materials, that could reasonably be expected to have a material effect on the capital expenditures,
earnings or competitive position of the Company and its subsidiaries, and (c) none of the Company
and its subsidiaries anticipates material capital expenditures relating to any Environmental Laws.
(ee) Hazardous Materials. There has been no storage, generation, transportation, use,
handling, treatment, Release or threat of Release of Hazardous Materials by, relating to or caused
by the Company or any of its subsidiaries (or, to the knowledge of the Company and its
subsidiaries, any other entity (including any predecessor) for whose acts or omissions the Company
or any of its subsidiaries is or could reasonably be expected to be liable) at, on, under or from
any property or facility now or previously owned, operated or leased by the Company or any of its
subsidiaries, or at, on, under or from any other property or facility, in violation of any
Environmental Laws or in a manner or amount or to a location that could reasonably be expected to
result in any liability under any Environmental Law, except for any violation or liability which
would not, individually or in the aggregate, reasonably be expected to have a Material Adverse
Effect. “Hazardous Materials” means any material, chemical, substance, waste, pollutant,
contaminant, compound, mixture, or constituent thereof, in any form or amount, including petroleum
(including crude oil or any fraction thereof) and petroleum products, natural gas liquids, asbestos
and asbestos containing materials, naturally occurring radioactive materials, brine, and drilling
mud, regulated or which can give rise to liability under any Environmental Law. “Release” means
any spilling, leaking, seepage, pumping, pouring, emitting, emptying, discharging, injecting,
escaping, leaching, dumping, disposing, depositing, dispersing, or migrating in, into or through
the environment, or in, into from or through any building or structure.
(ff) Compliance with ERISA. (i) Each employee benefit plan, within the meaning of Section
3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), for which the
Company or any member of its “Controlled Group” (defined as any organization which is a member of a
controlled group of corporations within the meaning of Section 414 of the Internal Revenue Code of
1986, as amended (the “Code”)) would have any liability (each, a “Plan”) has been maintained in
compliance with its terms and the requirements of any applicable statutes, orders, rules and
regulations, including but not limited to ERISA and the Code, except for noncompliance that could
not reasonably be expected to result in material liability to the Company or its subsidiaries; (ii)
no prohibited transaction, within the meaning of Section 406 of ERISA or Section 4975 of the Code,
has occurred with respect to any Plan excluding transactions effected pursuant to a statutory or
administrative exemption that could reasonably be expected to result in a material liability to the
Company or its subsidiaries; (iii) for each Plan that is subject to the funding rules of Section
412 of the Code or Section 302 of ERISA, the minimum funding standard of Section 412 of the Code or
Section 302 of ERISA, as applicable, has been satisfied (without taking into account any waiver
thereof or extension of any amortization period) and is reasonably expected to be satisfied in the
future (without taking into account any waiver thereof or extension of any amortization period);
(iv) the fair market value of the assets of
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each Plan subject to Section 401(a) of the Code exceeds the present value of all benefits
accrued under such Plan (determined based on those assumptions used to fund such Plan); (v) no
“reportable event” (within the meaning of Section 4043(c) of ERISA) has occurred or is reasonably
expected to occur that either has resulted, or could reasonably be expected to result, in material
liability to the Company or its subsidiaries; (vi) neither the Company nor any member of the
Controlled Group has incurred, nor reasonably expects to incur, any liability under Title IV of
ERISA (other than contributions to the Plan or premiums to the PBGC, in the ordinary course and
without default) in respect of a Plan (including a “multiemployer plan,” within the meaning of
Section 4001(a)(3) of ERISA); and (vii) there is no pending audit or investigation by the Internal
Revenue Service, the U.S. Department of Labor, the Pension Benefit Guaranty Corporation or any
other governmental agency or any foreign regulatory agency with respect to any Plan that could
reasonably be expected to result in material liability to the Company or its subsidiaries. None of
the following events has occurred or is reasonably likely to occur: (x) a material increase in the
aggregate amount of contributions required to be made to all Plans by the Company or its
subsidiaries in the current fiscal year of the Company and its subsidiaries compared to the amount
of such contributions made in the Company and its subsidiaries’ most recently completed fiscal
year; or (y) a material increase in the Company and its subsidiaries’ “accumulated post-retirement
benefit obligations” (within the meaning of Statement of Financial Accounting Standards 106)
compared to the amount of such obligations in the Company and its subsidiaries’ most recently
completed fiscal year.
(gg) Disclosure Controls. The Company and its subsidiaries maintain an effective system of
“disclosure controls and procedures” (as defined in Rule 13a-15(e) of the Exchange Act) that
complies with the requirements of the Exchange Act and that has been designed to ensure that
information required to be disclosed by the Company in reports that it files or submits under the
Exchange Act is recorded, processed, summarized and reported within the time periods specified in
the Commission’s rules and forms, including controls and procedures designed to ensure that such
information is accumulated and communicated to the Company’s management as appropriate to allow
timely decisions regarding required disclosure. The Company and its subsidiaries have carried out
evaluations of the effectiveness of their disclosure controls and procedures as required by Rule
13a-15 of the Exchange Act.
(hh) Accounting Controls. The Company and its subsidiaries maintain systems of “internal
control over financial reporting” (as defined in Rule 13a-15(f) of the Exchange Act) that comply
with the requirements of the Exchange Act and have been designed by, or under the supervision of,
their respective principal executive and principal financial officers, or persons performing
similar functions, to provide reasonable assurance regarding the reliability of financial reporting
and the preparation of financial statements for external purposes in accordance with GAAP,
including, but not limited to, internal accounting controls sufficient to provide reasonable
assurance that (i) transactions are executed in accordance with management’s general or specific
authorizations; (ii) transactions are recorded as necessary to permit preparation of financial
statements in conformity with GAAP and to maintain asset accountability; (iii) access to assets is
permitted only in accordance with management’s general or specific authorization; and (iv) the
recorded accountability for assets is compared with the existing assets at reasonable intervals and
appropriate action is taken with respect to any differences. There are no material weaknesses in
the Company’s internal controls. The Company’s auditors and the Audit Committee of the Board of
Directors of the Company have
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been advised of: (i) all significant deficiencies and material weaknesses in the design or
operation of internal controls over financial reporting which have adversely affected or are
reasonably likely to adversely affect the Company’s ability to record, process, summarize and
report financial information; and (ii) any fraud, whether or not material, that involves management
or other employees who have a significant role in the Company’s internal controls over financial
reporting.
(ii) Insurance. The Company and its subsidiaries have insurance covering their respective
properties, operations, personnel and businesses, including business interruption insurance, which
insurance is in amounts and insures against such losses and risks as are adequate, in the
reasonable belief of the Company, to protect the Company and its subsidiaries and their respective
businesses; neither the Company nor any of its subsidiaries has received notice from any insurer or
agent of such insurer that capital improvements or other material expenditures are required or
necessary to be made in order to continue such insurance; and except as disclosed in the
Registration Statement, the Pricing Disclosure Package and the Prospectus, the Company reasonably
believes that it will be able to renew its existing insurance coverage as and when such coverage
expires or obtain similar coverage at reasonable cost from similar insurers as may be necessary to
continue its business.
(jj) No Unlawful Payments. Neither the Company nor any of its subsidiaries nor, to the
knowledge of the Company, any director, officer, agent, employee or other person associated with or
acting on behalf of the Company or any of its subsidiaries has (i) used any corporate funds for any
unlawful contribution, gift, entertainment or other unlawful expense relating to political
activity; (ii) made any direct or indirect unlawful payment to any foreign or domestic government
official or employee from corporate funds; (iii) violated or is in violation of any provision of
the Foreign Corrupt Practices Act of 1977; or (iv) made any bribe, rebate, payoff, influence
payment, kickback or other unlawful payment.
(kk) Compliance with Money Laundering Laws. The operations of the Company and its
subsidiaries are and have been conducted at all times in compliance with applicable financial
recordkeeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of
1970, as amended, the money laundering statutes of all jurisdictions, the rules and regulations
thereunder and any related or similar rules, regulations or guidelines, issued, administered or
enforced by any governmental agency (collectively, the “Money Laundering Laws”) and no action, suit
or proceeding by or before any court or governmental agency, authority or body or any arbitrator
involving the Company or any of its subsidiaries with respect to the Money Laundering Laws is
pending or, to the knowledge of the Company, threatened.
(ll) Compliance with OFAC. None of the Company, any of its subsidiaries or, to the knowledge
of the Company, any director, officer, agent, employee or affiliate of the Company or any of its
subsidiaries is currently subject to any U.S. sanctions administered by the Office of Foreign
Assets Control of the U.S. Department of the Treasury (“OFAC”); and the Company will not, directly
or indirectly, use the proceeds of the offering of the Securities hereunder, or lend, contribute or
otherwise make available such proceeds to any subsidiary, joint venture partner or other person or
entity, for the purpose of financing the activities of any person currently subject to any U.S.
sanctions administered by OFAC.
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(mm) No Restrictions on Subsidiaries. Except in each case as otherwise disclosed in the
Registration Statement, the Pricing Disclosure Package and the Prospectus, no subsidiary of the
Company is currently prohibited, directly or indirectly, under any agreement or other instrument to
which it is a party or is subject, from paying any dividends to the Company, from making any other
distribution on such subsidiary’s capital stock, from repaying to the Company any loans or advances
to such subsidiary from the Company or from transferring any of such subsidiary’s properties or
assets to the Company or any other subsidiary of the Company.
(nn) No Broker’s Fees. Neither the Company nor any of its subsidiaries is a party to any
contract, agreement or understanding with any person (other than this Agreement) that would give
rise to a valid claim against the Company or any of its subsidiaries or any Underwriter for a
brokerage commission, finder’s fee or like payment in connection with the offering and sale of the
Securities.
(oo) No Registration Rights. Other than the U.S. Department of the Treasury, no person has
the right to require the Company or any of its subsidiaries to register any securities for sale
under the Securities Act by reason of the filing of the Registration Statement with the Commission
or the issuance and sale of the Securities.
(pp) No Stabilization. The Company has not taken, directly or indirectly, any action designed
to or that could reasonably be expected to cause or result in any stabilization or manipulation of
the price of the Securities.
(qq) Margin Rules. The application of the proceeds received by the Company from the issuance,
sale and delivery of the Securities as described in the Registration Statement, the Pricing
Disclosure Package and the Prospectus will not violate Regulation T, U or X of the Board of
Governors of the Federal Reserve System or any other regulation of such Board of Governors.
(rr) Forward-Looking Statements. No forward-looking statement (within the meaning of Section
27A of the Securities Act and Section 21E of the Exchange Act) contained in the Registration
Statement, the Pricing Disclosure Package or the Prospectus has been made or reaffirmed without a
reasonable basis or has been disclosed other than in good faith.
(ss) Statistical and Market Data. The statistical and market-related data included in the
Registration Statement, the Pricing Disclosure Package and the Prospectus are based on or derived
from sources that the Company reasonably believes are reliable and accurate in all material
respects.
(tt) Xxxxxxxx-Xxxxx Act. There is and has been no failure on the part of the Company or, to
the knowledge of the Company, any of the Company’s directors or officers, in their capacities as
such, to comply with any provision of the Xxxxxxxx-Xxxxx Act of 2002 and the rules and regulations
promulgated in connection therewith, including Section 402 related to loans and Sections 302 and
906 related to certifications.
(uu) Status under the Securities Act. At the time of filing the Registration Statement and
any post-effective amendment thereto, at the earliest time thereafter that the Company or any
offering participant made a bona fide offer (within the meaning of Rule 164(h)(2) under the
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Securities Act) of the Securities and at the date hereof, the Company was not and is not an
“ineligible issuer,” and is a well-known seasoned issuer, in each case as defined in Rule 405 under
the Securities Act. The Company has paid the registration fee for this offering pursuant to Rule
456(b)(1) under the Securities Act or will pay such fee within the time period required by such
rule (without giving effect to the proviso therein) and in any event prior to the Closing Date.
(vv) Bank Regulatory Authorities. Each of the Company and its subsidiaries are in compliance
with all applicable laws administered by, and all rules and regulations of, the Board of Governors
of the Federal Reserve System (the “Federal Reserve Board”), the Federal Deposit Insurance
Corporation (the “FDIC”), the Office of the Comptroller of the Currency (the “OCC”), the Georgia
Department of Banking and Finance, the Alabama Banking Department, the Florida Department of
Financial Services, the Tennessee Department of Financial Institutions, and any other federal or
state bank regulatory authorities with jurisdiction over the Company or its subsidiaries
(collectively, the “Bank Regulatory Authorities”), except as disclosed in the Registration
Statement, the Pricing Disclosure Package and the Prospectus or where such noncompliance would not,
individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. The
deposit accounts of the Company and its subsidiaries are insured up to applicable limits by the
FDIC and no proceedings for the termination or revocation of such insurance are pending or, to the
knowledge of the Company, threatened. Except as disclosed in the Registration Statement, the
Pricing Disclosure Package and the Prospectus, neither the Company nor any of its subsidiaries is a
party to any written agreement or memorandum of understanding with, or a party to any commitment
letter or similar undertaking to, or is subject to any order or directive by, or is a recipient of
any extraordinary supervisory letter from, or has adopted any board of director resolutions at the
request of, any Bank Regulatory Authority which currently restricts the conduct of its business, or
relates to its capital adequacy, its credit policies or its management, in each case that are
applicable to the Company or its subsidiaries specifically rather than to banks and bank holding
companies generally.
4. Further Agreements of the Company. The Company covenants and agrees with each
Underwriter that:
(a) Required Filings. The Company will file the final Prospectus with the Commission within
the time periods specified by Rule 424(b) and Rule 430A, 430B or 430C under the Securities Act,
will file any Issuer Free Writing Prospectus to the extent required by Rule 433 under the
Securities Act; will file promptly all reports and any definitive proxy or information statements
required to be filed by the Company with the Commission pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act subsequent to the date of the Prospectus and for so long as the delivery
of a prospectus is required in connection with the offering or sale of the Securities; and will
furnish copies of the Prospectus and each Issuer Free Writing Prospectus (to the extent not
previously delivered) to the Underwriters in New York City prior to 10:00 A.M., New York City time,
on the business day next succeeding the date of this Agreement in such quantities as the
Representative may reasonably request. The Company will pay the registration fee for this offering
within the time period required by Rule 456(b)(1) under the Securities Act (without giving effect
to the proviso therein) and in any event prior to the Closing Date.
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(b) Delivery of Copies. The Company will deliver, without charge, (i) to the Representative,
two signed copies of the Registration Statement as originally filed and each amendment thereto, in
each case including all exhibits and consents filed therewith; and (ii) to each Underwriter (A) a
conformed electronic copy of the Registration Statement as originally filed and each amendment
thereto (without exhibits) and (B) during the Prospectus Delivery Period (as defined below), as
many copies of the Prospectus (including all amendments and supplements thereto and documents
incorporated by reference therein and each Issuer Free Writing Prospectus) as the Representative
may reasonably request. As used herein, the term “Prospectus Delivery Period” means such period of
time after the first date of the public offering of the Securities as in the opinion of counsel for
the Underwriters a prospectus relating to the Securities is required by law to be delivered (or
required to be delivered but for Rule 172 under the Securities Act) in connection with sales of the
Securities by any Underwriter or dealer.
(c) Amendments or Supplements, Issuer Free Writing Prospectuses. Before preparing, using,
authorizing, approving, referring to or filing any Issuer Free Writing Prospectus, and before
filing any amendment or supplement to the Registration Statement or the Prospectus, the Company
will furnish to the Representative and counsel for the Underwriters a copy of the proposed Issuer
Free Writing Prospectus, amendment or supplement for review and will not prepare, use, authorize,
approve, refer to or file any such Issuer Free Writing Prospectus or file any such proposed
amendment or supplement to which the Representative reasonably objects.
(d) Notice to the Representative. The Company will advise the Representative promptly, and
confirm such advice in writing, (i) when any amendment to the Registration Statement has been filed
or becomes effective; (ii) when any supplement to the Prospectus or any Issuer Free Writing
Prospectus or any amendment to the Prospectus has been filed; (iii) of any request by the
Commission for any amendment to the Registration Statement or any amendment or supplement to the
Prospectus or the receipt of any comments from the Commission relating to the Registration
Statement or any other request by the Commission for any additional information; (iv) of the
issuance by the Commission of any order suspending the effectiveness of the Registration Statement
or preventing or suspending the use of any Preliminary Prospectus, any of the Pricing Disclosure
Package or the Prospectus or the initiation or threatening of any proceeding for that purpose or
pursuant to Section 8A of the Securities Act; (v) of the occurrence of any event within the
Prospectus Delivery Period as a result of which the Prospectus, the Pricing Disclosure Package or
any Issuer Free Writing Prospectus as then amended or supplemented would include any untrue
statement of a material fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances existing when the Prospectus, the Pricing
Disclosure Package or any such Issuer Free Writing Prospectus is delivered to a purchaser, not
misleading; (vi) of the receipt by the Company of any notice of objection of the Commission to the
use of the Registration Statement or any post-effective amendment thereto pursuant to Rule
401(g)(2) under the Securities Act; and (vii) of the receipt by the Company of any notice with
respect to any suspension of the qualification of the Securities for offer and sale in any
jurisdiction or the initiation or threatening of any proceeding for such purpose; and the Company
will use its commercially reasonable efforts to prevent the issuance of any such order suspending
the effectiveness of the Registration Statement, preventing or suspending the use of any
Preliminary Prospectus, any of the Pricing Disclosure
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Package or the Prospectus or suspending any such qualification of the Securities and, if any
such order is issued, will obtain as soon as possible the withdrawal thereof.
(e) Ongoing Compliance. (1) If during the Prospectus Delivery Period (i) any event shall
occur or condition shall exist as a result of which the Prospectus as then amended or supplemented
would include any untrue statement of a material fact or omit to state any material fact necessary
in order to make the statements therein, in the light of the circumstances existing when the
Prospectus is delivered to a purchaser, not misleading or (ii) it is necessary to amend or
supplement the Prospectus to comply with law, the Company will immediately notify the Underwriters
thereof and forthwith prepare and, subject to paragraph (c) above, file with the Commission and
furnish to the Underwriters and to such dealers as the Representative may designate such amendments
or supplements to the Prospectus as may be necessary so that the statements in the Prospectus as so
amended or supplemented will not, in the light of the circumstances existing when the Prospectus is
delivered to a purchaser, be misleading or so that the Prospectus will comply with law and (2) if
at any time prior to the Closing Date (i) any event shall occur or condition shall exist as a
result of which the Pricing Disclosure Package as then amended or supplemented would include any
untrue statement of a material fact or omit to state any material fact necessary in order to make
the statements therein, in the light of the circumstances existing when the Pricing Disclosure
Package is delivered to a purchaser, not misleading or (ii) it is necessary to amend or supplement
the Pricing Disclosure Package to comply with law, the Company will immediately notify the
Underwriters thereof and forthwith prepare and, subject to paragraph (c) above, file with the
Commission (to the extent required) and furnish to the Underwriters and to such dealers as the
Representative may designate such amendments or supplements to the Pricing Disclosure Package as
may be necessary so that the statements in the Pricing Disclosure Package as so amended or
supplemented will not, in the light of the circumstances existing when the Pricing Disclosure
Package is delivered to a purchaser, be misleading or so that the Pricing Disclosure Package will
comply with law.
(f) Blue Sky Compliance. The Company will qualify the Securities for offer and sale under the
securities or Blue Sky laws of such jurisdictions as the Representative shall reasonably request
and will continue such qualifications in effect so long as required for distribution of the
Securities; provided that the Company shall not be required to (i) qualify as a foreign
corporation or other entity or as a dealer in securities in any such jurisdiction where it would
not otherwise be required to so qualify, (ii) file any general consent to service of process in any
such jurisdiction or (iii) subject itself to taxation in any such jurisdiction if it is not
otherwise so subject.
(g) Earning Statement. The Company will make generally available to its security holders and
the Representative as soon as practicable an earning statement that satisfies the provisions of
Section 11(a) of the Securities Act and Rule 158 of the Commission promulgated thereunder covering
a period of at least twelve months beginning with the first fiscal quarter of the Company occurring
after the “effective date” (as defined in Rule 158) of the Registration Statement.
(h) Clear Market. For a period of 90 days after the date of the Prospectus, the Company will
not (i) offer, pledge, announce the intention to sell, sell, contract to sell, sell any option or
contract to purchase, purchase any option or contract to sell, grant any option, right or warrant
to purchase or otherwise transfer or dispose of, directly or indirectly, or file with the
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Securities and Exchange Commission a registration statement under the Securities Act relating
to, any shares of Common Stock or any securities convertible into or exercisable or exchangeable
for Common Stock, or publicly disclose the intention to make any offer, sale, pledge, disposition
or filing, or (ii) enter into any swap or other agreement that transfers, in whole or in part, any
of the economic consequences of ownership of the Common Stock or any such other securities, whether
any such transaction described in clause (i) or (ii) above is to be settled by delivery of Common
Stock or such other securities, in cash or otherwise, without the prior written consent of the
Representative, other than the Securities to be sold hereunder, any shares of Common Stock of the
Company issued upon the exercise of options granted under Company Stock Plans existing as of the
date hereof, any Common Stock issued pursuant to that certain Underwriting Agreement of even date
herewith between the Company and the Representative (the “Common Stock Offering”) and any shares of
Common Stock issued pursuant to that certain Offer to Exchange dated April 26, 2010 and related
letter of transmittal (the “Offer to Exchange”).
(i) Use of Proceeds. The Company will apply the net proceeds from the sale of the Securities
as described in the Registration Statement, the Pricing Disclosure Package and the Prospectus under
the heading “Use of proceeds.”
(j) No Stabilization. The Company will not take, directly or indirectly, any action designed
to or that could reasonably be expected to cause or result in any stabilization or manipulation of
the price of the Common Stock, it being understood that the issuance of the Common Stock in
accordance with the Common Stock Offering and the exchange of shares of Common Stock in accordance
with the Offer to Exchange shall not constitute activity that would result in the stabilization or
manipulation of the price of Common Stock.
(k) Exchange Listing. The Company will have made application to list the Securities on the
New York Stock Exchange (the “Exchange”). The maximum number of shares of Issuable Common Stock
issuable by the Company upon settlement of the Purchase Contracts shall have been approved for
listing on the Exchange, subject to official notice of issuance.
(l) Reports. So long as the Securities are outstanding, the Company will make available to
the Representative, promptly after they are available, copies of all reports or other
communications (financial or other) furnished to holders of the Securities, and copies of any
reports and financial statements furnished to or filed with the Commission or any national
securities exchange or automatic quotation system; provided the Company will be deemed to
have furnished such reports and financial statements to the Representative to the extent they are
filed on the Commission’s Electronic Data Gathering, Analysis, and Retrieval system.
(m) Record Retention. The Company will, pursuant to reasonable procedures developed in good
faith, retain copies of each Issuer Free Writing Prospectus that is not filed with the Commission
in accordance with Rule 433 under the Securities Act.
(n) Reserve. The Company will reserve and keep available at all times, free of preemptive
rights, the maximum number of shares of Issuable Common Stock issuable under the Purchase
Contracts.
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5. Certain Agreements of the Underwriters. Each Underwriter hereby represents and
agrees that:
(a) It has not used, authorized use of, referred to or participated in the planning for use
of, and will not use, authorize use of, refer to or participate in the planning for use of, any
“free writing prospectus,” as defined in Rule 405 under the Securities Act (which term includes use
of any written information furnished to the Commission by the Company and not incorporated by
reference into the Registration Statement and any press release issued by the Company) other than
(i) a free writing prospectus that contains no “issuer information” (as defined in Rule 433(h)(2)
under the Securities Act) that was not included (including through incorporation by reference) in
the Preliminary Prospectus or a previously filed Issuer Free Writing Prospectus, (ii) any Issuer
Free Writing Prospectus listed on Annex A or prepared pursuant to Section 3(c) or Section 4(c)
above (including any electronic road show), or (iii) any free writing prospectus prepared by such
underwriter and approved by the Company in advance in writing (each such free writing prospectus
referred to in clauses (i) or (iii), an “Underwriter Free Writing Prospectus”).
(b) It has not and will not, without the prior written consent of the Company, use any free
writing prospectus that contains the final terms of the Securities unless such terms have
previously been included in a free writing prospectus filed with the Commission.
(c) It is not subject to any pending proceeding under Section 8A of the Securities Act with
respect to the offering (and will promptly notify the Company if any such proceeding against it is
initiated during the Prospectus Delivery Period).
6. Conditions of Underwriters’ Obligations. The obligation of each Underwriter to
purchase the Underwritten Securities on the Closing Date or the Option Securities on the Additional
Closing Date, as the case may be, as provided herein is subject to the performance by the Company
of its covenants and other obligations hereunder and to the following additional conditions:
(a) Registration Compliance; No Stop Order. No order suspending the effectiveness of the
Registration Statement shall be in effect, and no proceeding for such purpose, pursuant to Rule
401(g)(2) or pursuant to Section 8A under the Securities Act shall be pending before or threatened
by the Commission; the Prospectus and each Issuer Free Writing Prospectus shall have been timely
filed with the Commission under the Securities Act (in the case of an Issuer Free Writing
Prospectus, to the extent required by Rule 433 under the Securities Act) and in accordance with
Section 4(a) hereof; and all requests by the Commission for additional information shall have been
complied with to the reasonable satisfaction of the Representative.
(b) Representations and Warranties. The representations and warranties of the Company
contained herein shall be true and correct on the date hereof and on and as of the Closing Date or
the Additional Closing Date, as the case may be; and the statements of the Company and its officers
made in any certificates delivered pursuant to this Agreement shall be true and correct on and as
of the Closing Date or the Additional Closing Date, as the case may be.
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(c) No Downgrade. Subsequent to the earlier of (A) the Applicable Time and (B) the execution
and delivery of this Agreement, if there are any debt securities or preferred stock of, or
guaranteed by, the Company or any of its subsidiaries that are rated by a “nationally recognized
statistical rating organization,” as such term is defined by the Commission for purposes of Rule
436(g)(2) under the Securities Act, (i) no downgrading shall have occurred in the rating accorded
any such debt securities or preferred stock and (ii) no such organization shall have publicly
announced that it has under surveillance or review, or has changed its outlook with respect to, its
rating of any such debt securities or preferred stock (other than an announcement with positive
implications of a possible upgrading).
(d) No Material Adverse Change. No event or condition of a type described in Section 3(g)
hereof shall have occurred or shall exist, which event or condition is not described in the Pricing
Disclosure Package (excluding any amendment or supplement thereto) and the Prospectus (excluding
any amendment or supplement thereto) and the effect of which in the judgment of the Representative
makes it impracticable or inadvisable to proceed with the offering, sale or delivery of the
Securities on the Closing Date or the Additional Closing Date, as the case may be, on the terms and
in the manner contemplated by this Agreement, the Pricing Disclosure Package and the Prospectus.
(e) Officers’ Certificate. The Representative shall have received on and as of the Closing
Date or the Additional Closing Date, as the case may be, a certificate of the chief financial
officer or chief accounting officer of the Company and one additional senior executive officer of
the Company who is satisfactory to the Representative (i) confirming that such officers have
carefully reviewed the Registration Statement, the Pricing Disclosure Package and the Prospectus
and, to the knowledge of such officers, the representations set forth in Sections 3(b) and 3(d)
hereof are true and correct, (ii) confirming that the other representations and warranties of the
Company in this Agreement are true and correct and that the Company has complied with all
agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or
prior to the Closing Date or the Additional Closing Date, as the case may be, and (iii) to the
effect set forth in paragraphs (a), (c) and (d) above.
(f) Comfort Letters. On the date of this Agreement and on the Closing Date or the Additional
Closing Date, as the case may be, KPMG LLP shall have furnished to the Representative, at the
request of the Company, letters, dated the respective dates of delivery thereof and addressed to
the Underwriters, in form and substance reasonably satisfactory to the Representative, containing
statements and information of the type customarily included in accountants’ “comfort letters” to
underwriters with respect to the financial statements and certain financial information contained
or incorporated by reference in the Registration Statement, the Pricing Disclosure Package and the
Prospectus; provided, that the letter delivered on the Closing Date or the Additional
Closing Date, as the case may be, shall use a “cut-off” date no more than three business days prior
to such Closing Date or such Additional Closing Date, as the case may be.
(g) CFO Certificate. The Representative shall have received on and as of the date of this
Agreement and on the Closing Date or the Additional Closing Date, as the case may be, a certificate
of the chief financial officer of the Company, in the form set forth in Annex E hereto.
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(h) Opinion and 10b-5 Statement. Xxxxx Xxxx & Xxxxxxxx LLP, special counsel for the Company,
Xxxxxx & Bird LLP, special counsel for the Company, and Xxxxx X. Xxxxxxx, Deputy General Counsel of
the Company, shall have furnished to the Representative, at the request of the Company, a written
opinion and, in the case of Xxxxx Xxxx & Xxxxxxxx LLP, a 10b-5 statement, dated the Closing Date or
the Additional Closing Date, as the case may be, and addressed to the Underwriters, in form and
substance reasonably satisfactory to the Representative, to the effect set forth in Annex C-1,
Annex C-2 and Annex C-3, respectively, hereto.
(i) Opinion of Trustee Counsel. Xxxxx Xxxx LLP, counsel for the Trustee and the Purchase
Contract Agent, shall have furnished to the Representative, at the request of the Company, a
written opinion, dated the Closing Date or the Additional Closing Date, as the case may be, and
addressed to the Underwriters, in form and substance reasonably satisfactory to the Representative,
to the effect set forth in Annex C-4.
(j) Opinion and 10b-5 Statement of Counsel for the Underwriters. The Representative shall
have received on and as of the Closing Date or the Additional Closing Date, as the case may be, an
opinion and 10b-5 statement of Wachtell, Lipton, Xxxxx & Xxxx, counsel for the Underwriters, with
respect to such matters as the Representative may reasonably request, and such counsel shall have
received such documents and information as they may reasonably request to enable them to pass upon
such matters.
(k) No Legal Impediment to Issuance. No action shall have been taken and no statute, rule,
regulation or order shall have been enacted, adopted or issued by any federal, state or foreign
governmental or regulatory authority that would, as of the Closing Date or the Additional Closing
Date, as the case may be, prevent the issuance or sale of the Securities; and no injunction or
order of any federal, state or foreign court shall have been issued that would, as of the Closing
Date or the Additional Closing Date, as the case may be, prevent the issuance or sale of the
Securities.
(l) Good Standing. The Representative shall have received on and as of the Closing Date or
the Additional Closing Date, as the case may be, satisfactory evidence of the good standing of the
Company and its Significant Subsidiaries in their respective jurisdictions of organization and
their good standing as foreign entities in such other jurisdictions as the Representative may
reasonably request, in each case in writing or any standard form of telecommunication from the
appropriate governmental authorities of such jurisdictions.
(m) Exchange Listing. The Company shall have made application to list the Securities on the
Exchange. The maximum number of shares of Issuable Common Stock issuable by the Company upon
settlement of the Purchase Contracts shall have been approved for listing on the Exchange, subject
to official notice of issuance.
(n) Lock-up Agreements. The “lock-up” agreements, each substantially in the form of Exhibit A
hereto, from certain officers and directors of the Company relating to sales and certain other
dispositions of shares of Common Stock or certain other securities, delivered to you on or before
the date hereof, shall be in full force and effect on the Closing Date or Additional Closing Date,
as the case may be.
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(o) Additional Documents. On or prior to the Closing Date or the Additional Closing Date, as
the case may be, the Company shall have furnished to the Representative such further certificates
and documents as the Representative may reasonably request.
All opinions, letters, certificates and evidence mentioned above or elsewhere in this
Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form
and substance reasonably satisfactory to counsel for the Underwriters.
7. Indemnification and Contribution.
(a) Indemnification of the Underwriters. The Company agrees to indemnify and hold harmless
each Underwriter, its affiliates, directors and officers and each person, if any, who controls such
Underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange
Act, from and against any and all losses, claims, damages and liabilities (including, without
limitation, legal fees and other expenses incurred in connection with any suit, action or
proceeding or any claim asserted, as such fees and expenses are incurred), joint or several, that
arise out of, or are based upon, (i) any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement or caused by any omission or alleged omission to state
therein a material fact required to be stated therein or necessary in order to make the statements
therein, not misleading, (ii) any untrue statement or alleged untrue statement of a material fact
contained in the Prospectus (or any amendment or supplement thereto), any Issuer Free Writing
Prospectus, any “issuer information” filed or required to be filed pursuant to Rule 433(d) under
the Securities Act or any Pricing Disclosure Package (including any Pricing Disclosure Package that
has subsequently been amended), or caused by any omission or alleged omission to state therein a
material fact necessary in order to make the statements therein, in light of the circumstances
under which they were made, not misleading, or (iii) any untrue statement or alleged untrue
statement of a material fact contained in the Prospectus (or any amendment or supplement thereto)
or the omission or alleged omission therefrom of a material fact necessary to make the statements
therein, when considered in conjunction with the Prospectus or the Pricing Disclosure Package, not
misleading, in each case except insofar as such losses, claims, damages or liabilities arise out
of, or are based upon, any untrue statement or omission or alleged untrue statement or omission
made in reliance upon and in conformity with any information relating to any Underwriter furnished
to the Company in writing by such Underwriter through the Representative expressly for use therein,
it being understood and agreed that the only such information furnished by any Underwriter consists
of the information described as such in subsection (b) below.
(b) Indemnification of the Company. Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless the Company, its directors, its officers who signed the Registration
Statement and each person, if any, who controls the Company within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act to the same extent as the indemnity set forth in
paragraph (a) above, but only with respect to any losses, claims, damages or liabilities that arise
out of, or are based upon, any untrue statement or omission or alleged untrue statement or omission
made in reliance upon and in conformity with any information relating to such Underwriter furnished
to the Company in writing by such Underwriter through the Representative expressly for use in the
Registration Statement, the Prospectus (or any amendment or supplement thereto), any Issuer Free
Writing Prospectus or any Pricing Disclosure
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Package, it being understood and agreed upon that the only such information furnished by any
Underwriter consists of the following information in the Prospectus furnished on behalf of each
Underwriter: the concession figures appearing in the third paragraph under the caption
“Underwriting” and the information contained in the paragraph beginning with the phrase “In
connection with this offering, the underwriter may engage in stabilizing transactions . . .” and
each subsequent paragraph through and including the paragraph beginning with the phrase “In
addition, in connection with this offering certain of the underwriters (and selling group members)
may engage in passive market making transactions . . .” under the caption “Underwriting.”
(c) Notice and Procedures. If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or asserted against any person in
respect of which indemnification may be sought pursuant to either paragraph (a) or (b) above, such
person (the “Indemnified Person”) shall promptly notify the person against whom such
indemnification may be sought (the “Indemnifying Person”) in writing; provided that the
failure to notify the Indemnifying Person shall not relieve it from any liability that it may have
under paragraph (a) or (b) above except to the extent that it has been materially prejudiced
(through the forfeiture of substantive rights or defenses) by such failure; and provided,
further, that the failure to notify the Indemnifying Person shall not relieve it from any
liability that it may have to an Indemnified Person otherwise than under paragraph (a) or (b)
above. If any such proceeding shall be brought or asserted against an Indemnified Person and it
shall have notified the Indemnifying Person thereof, the Indemnifying Person shall retain counsel
reasonably satisfactory to the Indemnified Person (who shall not, without the consent of the
Indemnified Person, be counsel to the Indemnifying Person) to represent the Indemnified Person in
such proceeding and shall pay the fees and expenses of such counsel related to such proceeding, as
incurred. In any such proceeding, any Indemnified Person shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense of such Indemnified
Person unless (i) the Indemnifying Person and the Indemnified Person shall have mutually agreed to
the contrary; (ii) the Indemnifying Person has failed within a reasonable time to retain counsel
reasonably satisfactory to the Indemnified Person; (iii) the Indemnified Person shall have
reasonably concluded that there may be legal defenses available to it that are different from or in
addition to those available to the Indemnifying Person; or (iv) the named parties in any such
proceeding (including any impleaded parties) include both the Indemnifying Person and the
Indemnified Person and representation of both parties by the same counsel would be inappropriate
due to actual or potential differing interest between them. It is understood and agreed that the
Indemnifying Person shall not, in connection with any proceeding or related proceedings in the same
jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition to
any local counsel) for all Indemnified Persons, and that all such fees and expenses shall be paid
or reimbursed as they are incurred. Any such separate firm for any Underwriter, its affiliates,
directors and officers and any control persons of such Underwriter shall be designated in writing
by X.X. Xxxxxx Securities Inc. and any such separate firm for the Company, its directors, its
officers who signed the Registration Statement and any control persons of the Company shall be
designated in writing by the Company. The Indemnifying Person shall not be liable for any
settlement of any proceeding effected without its written consent, but if settled with such consent
or if there be a final judgment for the plaintiff, the Indemnifying Person agrees to indemnify each
Indemnified Person from and against any loss or liability by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time an Indemnified Person shall have requested
that an Indemnifying Person reimburse the
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Indemnified Person for fees and expenses of counsel as contemplated by this paragraph, the
Indemnifying Person shall be liable for any settlement of any proceeding effected without its
written consent if (i) such settlement is entered into more than 30 days after receipt by the
Indemnifying Person of such request and (ii) the Indemnifying Person shall not have reimbursed the
Indemnified Person in accordance with such request prior to the date of such settlement. No
Indemnifying Person shall, without the written consent of the Indemnified Person, effect any
settlement of any pending or threatened proceeding in respect of which any Indemnified Person is or
could have been a party and indemnification could have been sought hereunder by such Indemnified
Person, unless such settlement (x) includes an unconditional release of such Indemnified Person, in
form and substance reasonably satisfactory to such Indemnified Person, from all liability on claims
that are the subject matter of such proceeding and (y) does not include any statement as to or any
admission of fault, culpability or a failure to act by or on behalf of any Indemnified Person.
(d) Contribution. If the indemnification provided for in paragraphs (a) and (b) above is
unavailable to an Indemnified Person or insufficient in respect of any losses, claims, damages or
liabilities referred to therein, then each Indemnifying Person under such paragraph, in lieu of
indemnifying such Indemnified Person thereunder, shall contribute to the amount paid or payable by
such Indemnified Person as a result of such losses, claims, damages or liabilities (i) in such
proportion as is appropriate to reflect the relative benefits received by the Company, on the one
hand, and the Underwriters on the other, from the offering of the Securities or (ii) if the
allocation provided by clause (i) is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i) but also the
relative fault of the Company, on the one hand, and the Underwriters on the other, in connection
with the statements or omissions that resulted in such losses, claims, damages or liabilities, as
well as any other relevant equitable considerations. The relative benefits received by the
Company, on the one hand, and the Underwriters on the other, shall be deemed to be in the same
respective proportions as the net proceeds (before deducting expenses) received by the Company from
the sale of the Securities and the total underwriting discounts and commissions received by the
Underwriters in connection therewith, in each case as set forth in the table on the cover of the
Prospectus, bear to the aggregate offering price of the Securities. The relative fault of the
Company, on the one hand, and the Underwriters on the other, 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 Underwriters and the parties’ relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission.
(e) Limitation on Liability. The Company and the Underwriters agree that it would not be just
and equitable if contribution pursuant to this Section 7 were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such purpose) or by any other
method of allocation that does not take account of the equitable considerations referred to in
paragraph (d) above. The amount paid or payable by an Indemnified Person as a result of the
losses, claims, damages and liabilities referred to in paragraph (d) above shall be deemed to
include, subject to the limitations set forth above, any legal or other expenses incurred by such
Indemnified Person in connection with any such action or claim. Notwithstanding the provisions of
this Section 7, in no event shall an Underwriter be required to contribute any amount in excess of
the amount by which the total underwriting discounts and commissions received by such
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Underwriter with respect to the offering of the Securities exceeds the amount of any damages
that such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The Underwriters’ obligations
to contribute pursuant to this Section 7 are several in proportion to their respective purchase
obligations hereunder and not joint.
(f) Non-Exclusive Remedies. The remedies provided for in this Section 7 are not exclusive and
shall not limit any rights or remedies which may otherwise be available to any Indemnified Person
at law or in equity.
8. Effectiveness of Agreement. This Agreement shall become effective upon the
execution and delivery hereof by the parties hereto.
9. Termination. This Agreement may be terminated in the absolute discretion of the
Representative, by notice to the Company, if after the execution and delivery of this Agreement and
prior to the Closing Date or, in the case of the Option Securities, prior to the Additional Closing
Date (i) trading generally shall have been suspended or materially limited on or by any of the New
York Stock Exchange, the American Stock Exchange, the Nasdaq Stock Market, the Chicago Board
Options Exchange, the Chicago Mercantile Exchange or the Chicago Board of Trade; (ii) trading of
any securities issued or guaranteed by the Company shall have been suspended on any exchange or in
any over-the-counter market; (iii) a general moratorium on commercial banking activities shall have
been declared by federal or New York State authorities; or (iv) there shall have occurred any
outbreak or escalation of hostilities or any change in financial markets or any calamity or crisis,
either within or outside the United States, that, in the judgment of the Representative, is
material and adverse and makes it impracticable or inadvisable to proceed with the offering, sale
or delivery of the Securities on the Closing Date or the Additional Closing Date, as the case may
be, on the terms and in the manner contemplated by this Agreement, the Pricing Disclosure Package
and the Prospectus.
10. Defaulting Underwriter.
(a) If, on the Closing Date or the Additional Closing Date, as the case may be, any
Underwriter defaults on its obligation to purchase the Securities that it has agreed to purchase
hereunder on such date, the non-defaulting Underwriters may in their discretion arrange for the
purchase of such Securities by other persons satisfactory to the Company on the terms contained in
this Agreement. If, within 24 hours after any such default by any Underwriter, the non-defaulting
Underwriters do not arrange for the purchase of such Securities, then the Company shall be entitled
to a further period of 24 hours within which to procure other persons satisfactory to the
non-defaulting Underwriters to purchase such Securities on such terms. If other persons become
obligated or agree to purchase the Securities of a defaulting Underwriter, either the
non-defaulting Underwriters or the Company may postpone the Closing Date or the Additional Closing
Date, as the case may be, for up to five full business days in order to effect any changes that in
the opinion of counsel for the Company or counsel for the Underwriters may be necessary in the
Registration Statement and the Prospectus or in any other document or arrangement, and the Company
agrees to promptly prepare any amendment or supplement to the Registration
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Statement and the Prospectus that effects any such changes. As used in this Agreement, the
term “Underwriter” includes, for all purposes of this Agreement unless the context otherwise
requires, any person not listed in Schedule 1 hereto that, pursuant to this Section 10, purchases
Securities that a defaulting Underwriter agreed but failed to purchase.
(b) If, after giving effect to any arrangements for the purchase of the Securities of a
defaulting Underwriter or Underwriters by the non-defaulting Underwriters and the Company as
provided in paragraph (a) above, the aggregate number of Securities that remain unpurchased on the
Closing Date or the Additional Closing Date, as the case may be, does not exceed one-tenth of the
aggregate number of Securities to be purchased on such date, then the Company shall have the right
to require each non-defaulting Underwriter to purchase the number of Securities that such
Underwriter agreed to purchase hereunder on such date plus such Underwriter’s pro rata share (based
on the number of Securities that such Underwriter agreed to purchase on such date) of the
Securities of such defaulting Underwriter or Underwriters for which such arrangements have not been
made.
(c) If, after giving effect to any arrangements for the purchase of the Securities of a
defaulting Underwriter or Underwriters by the non-defaulting Underwriters and the Company as
provided in paragraph (a) above, the aggregate number of Securities that remain unpurchased on the
Closing Date or the Additional Closing Date, as the case may be, exceeds one-tenth of the aggregate
amount of Securities to be purchased on such date, or if the Company shall not exercise the right
described in paragraph (b) above, then this Agreement or, with respect to any Additional Closing
Date, the obligation of the Underwriters to purchase Securities on the Additional Closing Date
shall terminate without liability on the part of the non-defaulting Underwriters. Any termination
of this Agreement pursuant to this Section 10 shall be without liability on the part of the
Company, except that the Company will continue to be liable for the payment of expenses as set
forth in Section 11 hereof and except that the provisions of Section 7 hereof shall not terminate
and shall remain in effect.
(d) Nothing contained herein shall relieve a defaulting Underwriter of any liability it may
have to the Company or any non-defaulting Underwriter for damages caused by its default.
11. Payment of Expenses.
(a) Whether or not the transactions contemplated by this Agreement are consummated or this
Agreement is terminated, the Company will pay or cause to be paid all costs and expenses incident
to the performance of its obligations hereunder, including without limitation, (i) the costs
incident to the authorization, issuance, sale, preparation and delivery of the Securities and any
taxes payable in that connection; (ii) the costs incident to the preparation, printing and filing
under the Securities Act of the Registration Statement, the Preliminary Prospectus, any Issuer Free
Writing Prospectus, any Pricing Disclosure Package and the Prospectus (including all exhibits,
amendments and supplements thereto) and the distribution thereof; (iii) the fees and expenses of
the Company’s counsel and independent accountants; (iv) the fees and expenses incurred in
connection with the registration or qualification of the Securities under the state or foreign
securities or blue sky laws of such jurisdictions as the Representative may reasonably designate,
the preparation, printing and distribution of a Blue Sky Memorandum (including the related fees and
expenses of counsel for the Underwriters); (v) the
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cost of preparing stock certificates; (vi) the costs and charges of any transfer agent and any
registrar; (vii) all expenses and application fees incurred in connection with any filing with, and
clearance of the offering by, FINRA; (viii) all expenses incurred by the Company in connection with
any “road show” presentation to potential investors; (ix) all expenses and application fees related
to the listing of the Securities on the Exchange;(x) the fees and expenses of the Purchase Contract
Agent in connection with the Purchase Contracts, the Purchase Contract Agreement and the
Securities; and (xi) the fees and expenses of the Trustee in connection with the Amortizing Notes,
the Indenture and the Securities.
(b) If (i) this Agreement is terminated pursuant to Section 9, (ii) the Company for any reason
fails to tender the Securities for delivery to the Underwriters or (iii) the Underwriters decline
to purchase the Securities for any reason permitted under this Agreement, the Company agrees to
reimburse the Underwriters for all out-of-pocket costs and expenses (including the reasonable fees
and expenses of their counsel) reasonably incurred by the Underwriters in connection with this
Agreement and the offering contemplated hereby.
12. Persons Entitled to Benefit of Agreement. This Agreement shall inure to the
benefit of and be binding upon the parties hereto and their respective successors and the officers
and directors and any controlling persons referred to in Section 7 hereof. Nothing in this
Agreement is intended or shall be construed to give any other person any legal or equitable right,
remedy or claim under or in respect of this Agreement or any provision contained herein. No
purchaser of Securities from any Underwriter shall be deemed to be a successor merely by reason of
such purchase.
13. Survival. The respective indemnities, rights of contribution, representations,
warranties and agreements of the Company and the Underwriters contained in this Agreement or made
by or on behalf of the Company or the Underwriters pursuant to this Agreement or any certificate
delivered pursuant hereto shall survive the delivery of and payment for the Securities and shall
remain in full force and effect, regardless of any termination of this Agreement or any
investigation made by or on behalf of the Company or the Underwriters.
14. Certain Defined Terms. For purposes of this Agreement, (a) except where otherwise
expressly provided, the term “affiliate” has the meaning set forth in Rule 405 under the Securities
Act; (b) the term “business day” means any day other than a day on which banks are permitted or
required to be closed in New York City; and (c) the term “subsidiary” has the meaning set forth in
Rule 405 under the Securities Act.
15. Miscellaneous.
(a) Authority of X.X. Xxxxxx Securities Inc. Any action by the Underwriters hereunder may be
taken by X.X. Xxxxxx Securities Inc. on behalf of the Underwriters, and any such action taken by
X.X. Xxxxxx Securities Inc. shall be binding upon the Underwriters.
(b) Notices. All notices and other communications hereunder shall be in writing and shall be
deemed to have been duly given if mailed or transmitted and confirmed by any standard form of
telecommunication. Notices to the Underwriters shall be given to the Representative c/o X.X.
Xxxxxx Securities Inc., 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (fax:
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(000) 000-0000); Attention: Equity Syndicate Desk. Notices to the Company shall be given to
it at 0000 Xxx Xxxxxx, Xxxxx 000, Xxxxxxxx, Xxxxxxx 00000 (fax: (000) 000-0000; Attention: Chief
Financial Officer (with a copy to General Counsel).
(c) Governing Law. This Agreement shall be governed by and construed in accordance with the
laws of the State of New York applicable to agreements made and to be performed in such state.
(d) Counterparts. This Agreement may be signed in counterparts (which may include
counterparts delivered by any standard form of telecommunication), each of which shall be an
original and all of which together shall constitute one and the same instrument.
(e) Amendments or Waivers. No amendment or waiver of any provision of this Agreement, nor any
consent or approval to any departure therefrom, shall in any event be effective unless the same
shall be in writing and signed by the parties hereto.
(f) Headings. The headings herein are included for convenience of reference only and are not
intended to be part of, or to affect the meaning or interpretation of, this Agreement.
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If the foregoing is in accordance with your understanding, please indicate your acceptance of
this Agreement by signing in the space provided below.
Very truly yours, SYNOVUS FINANCIAL CORP. |
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By: | /s/Xxxxxx X. Xxxxxxxx | |||
Name: | Xxxxxx X. Xxxxxxxx | |||
Title: | Executive Vice President and Chief Financial Officer |
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Accepted: April 28, 2010
X.X. XXXXXX SECURITIES INC. |
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By: | /s/ Xxxxxxx Xxxxxxxxxxx | |||
Authorized Signatory | ||||
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