WHITNEY HOLDING CORPORATION 25,000,000 Shares of Common Stock, no par value Underwriting Agreement
Exhibit 1.1
EXECUTION VERSION
WHITNEY HOLDING CORPORATION
25,000,000 Shares of Common Stock, no par value
October 21, 2009
X.X. Xxxxxx Securities Inc.
SunTrust Xxxxxxxx Xxxxxxxx, Inc.
As Representatives of the
SunTrust Xxxxxxxx Xxxxxxxx, Inc.
As Representatives of the
several Underwriters listed
in Schedule 1 hereto
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:
Whitney Holding Corporation, a Louisiana 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 “Representatives”), an aggregate of 25,000,000 shares of common
stock, no par value, of the Company (the “Underwritten Shares”) and, at the option of the
Underwriters, up to an additional 3,750,000 shares of common stock, no par value, of the Company
(the “Option Shares”). The Underwritten Shares and the Option Shares are herein referred to as the
“Shares.” The shares of common stock of the Company to be outstanding after giving effect to the
sale of the Shares are referred to herein as the “Stock.”
As part of the offering contemplated by this Agreement, and subject to the terms of this
Agreement, the applicable rules, regulations and interpretations of the Financial Industry
Regulatory Authority, Inc. (“FINRA”) and all other applicable laws, rules and regulations, SunTrust
Xxxxxxxx Xxxxxxxx, Inc. (the “Designated Underwriter”) has agreed at our request to reserve out of
the Underwritten Shares purchased by it under this Agreement, up to $5,000,000 of common stock, no
par value, for sale to certain of the Company’s directors and officers and other persons designated
by the Company (collectively, “Directed Share Purchasers”) as set forth in the Prospectus (as
defined herein) under the heading “Underwriting” (the “Directed Share Program”). Any Directed
Shares not orally confirmed for purchase by any Directed Share Purchaser by 9:00 a.m., New York
City time, on the first trading day after the date on which this Agreement is executed will be
offered to the public by the Underwriters as set forth in the Prospectus.
The Company hereby confirms its agreement with the several Underwriters concerning the
purchase and sale of the Shares, 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. 333-156792), including a prospectus, relating to the Shares. 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 and
preliminary prospectus supplement 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
and prospectus supplement 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
Shares. 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 B, the “Pricing
Disclosure Package”): a Preliminary Prospectus dated October 19, 2009 and each “free-writing
prospectus” (as defined pursuant to Rule 405 under the Securities Act) listed on Annex B hereto.
“Applicable Time” means 5:00 p.m., New York City time, on October 21, 2009.
2. Purchase of the Shares by the Underwriters.
(a) The Company agrees to issue and sell the Underwritten Shares 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
Shares set forth opposite such Underwriter’s name in Schedule 1 hereto at a price per share (the
“Purchase Price”) of $7.60.
In addition, the Company agrees to issue and sell the Option Shares 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
Shares at the Purchase Price less an amount per share equal to any dividends or distributions
declared by the Company and payable on the Underwritten Shares but not payable on the Option
Shares.
If any Option Shares are to be purchased, the number of Option Shares to be purchased by each
Underwriter shall be the number of Option Shares which bears the same ratio to the aggregate number
of Option Shares being purchased as the number of Underwritten Shares 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 Shares being purchased from the Company by the several
Underwriters, subject, however, to such adjustments to eliminate any fractional Shares as the
Representatives in their sole discretion shall make.
The Underwriters may exercise the option to purchase Option Shares at any time in whole, or
from time to time in part, on or before the thirtieth day following the date of the Prospectus, by
written notice from the Representatives to the Company. Such notice shall set forth the aggregate
number of Option Shares as to which the option is being exercised and the date and time when the
Option Shares 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.
The Company understands that the Underwriters intend to make a public offering of the Shares
as soon after the effectiveness of this Agreement as in the judgment of the Representatives is
advisable, and to offer the Shares on the terms set forth in the Prospectus. The Company
acknowledges and agrees that the Underwriters may offer and sell Shares to or through any affiliate
of an Underwriter.
(b) Payment for the Shares shall be made at the closing by wire transfer in immediately
available funds to the account specified by the Company to the Representatives. The closing of the
issuance, payment of the purchase price for, and delivery of the Underwritten Shares shall be made
at the offices of Xxxxx Xxxx & Xxxxxxxx LLP, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, at
10:00 A.M., New York City time, on October 27, 2009, or at such other time or place on the same or
such other date, not later than the fifth business day thereafter, as the Representatives and the
Company may agree upon in writing. In the case of the Option Shares, the closing shall occur on
the date and at the time and place specified by the Representatives in the written notice of the
Underwriters’ election to purchase such Option Shares. The time and date of such payment for the
Underwritten Shares is referred to herein as the “Closing Date,” and the time and date for such
payment for the Option Shares, if other than the Closing Date, is herein referred to as the
“Additional Closing Date.”
Payment for the Shares to be purchased on the Closing Date or the Additional Closing Date, as
the case may be, shall be made against delivery to the Representatives for the respective accounts
of the several Underwriters of the Shares to be purchased on such date in such names and in such
denominations as the Representatives 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 Shares duly paid by the Company. Delivery of the
Shares shall be made through the facilities of The Depository Trust Company (“DTC”) unless the
Representatives shall otherwise instruct.
(c) 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
Shares 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 of the Representatives 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 Representatives 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 or 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 Representatives 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 Shares (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 B hereto, each
electronic road show and any other written communications approved in writing in advance by
the Representatives. 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 and 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 Representatives 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
Shares 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 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
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 Representatives 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 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 (except as described in
the Registration Statement, the Pricing Disclosure Package and the Prospectus), or any
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 is incorporated in and is validly
existing and in good standing under the laws of Louisiana and, in the case of Whitney
National Bank (the “Bank”), is validly chartered as a national bank. The Company and the
Bank 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, 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, whether or not arising out of the ordinary course of business (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 meets the applicable requirements
for qualification as such. The subsidiaries listed in Schedule 2 to this Agreement are the
only significant subsidiaries (as such term is defined in Rule 1-02(w) of Regulation S-X) of
the Company (each a “Significant Subsidiary and, collectively, the “Significant
Subsidiaries”).
(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 (including, without limitation, the
description of shares of common stock reserved for issuance upon exercise of the warrant
issued to the U.S. Department of Treasury in connection with the Company’s participation in
the Capital Purchase Program), 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 (except pursuant to the Company Stock Plans, as defined below, and
awards currently in effect as of the date of this Agreement); the capital stock of the
Company conforms in all material respects to the description thereof contained in the
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 Nasdaq Global Select Market
(the “Nasdaq Market”) 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 Shares. The Shares to be issued and sold by the Company hereunder have been
duly authorized and, when issued and delivered and paid for as provided herein, 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 Shares is not subject to any preemptive or similar
rights.
(n) 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 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.
(o) No Conflicts. The execution, delivery and performance by the Company of this
Agreement, the issuance and sale of the Shares 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.
(p) 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 issuance and sale of the Shares and the consummation of the
transactions contemplated by this Agreement, except as required by the Nasdaq Market, for
the registration of the Shares under the Securities Act and such consents, approvals,
authorizations, orders and registrations or qualifications as may be required by FINRA and
under applicable state securities laws in connection with the purchase and distribution of
the Shares by the Underwriters.
(q) 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; no such investigations, actions, suits or proceedings are, to the
knowledge of the Company, threatened or contemplated by any governmental or regulatory
authority or threatened by others; and, except as described in the Registration Statement,
the Pricing Disclosure Package and the Prospectus, (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 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.
(r) Independent Accountants. PricewaterhouseCoopers 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.
(s) 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.
(t) 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.
(u) 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.
(v) Investment Company Act. The Company is not and, after giving effect to the
offering and sale of the Shares and the application of the proceeds thereof as described in
the Registration Statement, the Pricing Disclosure Package and the Prospectus, 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”).
(w) 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 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.
(x) 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 such license,
certificate, permit or authorization would not, individually or in the aggregate, have a
Material Adverse Effect.
(y) 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.
(z) 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 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.
(aa) 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 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.
(bb) 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 material 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 each Plan
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.
(cc) 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.
(dd) 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 generally accepted accounting principles, 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 generally accepted accounting principles 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. Except as disclosed in the Registration Statement,
the Pricing Disclosure Package and the Prospectus, 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 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.
(ee) 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; and 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 to obtain
similar coverage at reasonable cost from similar insurers as may be necessary to continue
its business.
(ff) 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.
(gg) 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”), except for such noncompliance that would not, individually or in
the aggregate, have a Material Adverse Effect, 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.
(hh) 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 Shares
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.
(ii) No Restrictions on Subsidiaries. Except 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.
(jj) 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 Shares.
(kk) 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 Shares.
(ll) 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 Shares.
(mm) Margin Rules. The application of the proceeds received by the Company from the
issuance, sale and delivery of the Shares 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.
(nn) 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.
(oo) Statistical and Market Data. Nothing has come to the attention of the Company
that has caused the Company to believe that the statistical and market-related data included
in the Registration Statement, the Pricing Disclosure Package and the Prospectus is not
based on or derived from sources that are reliable and accurate in all material respects.
(pp) 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 in all material respects 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.
(qq) 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 Securities Act) of the Shares 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.
(rr) Bank Regulatory Authorities. Each of the Company and the Bank are in compliance
in all respects 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”) and any other federal or state bank regulatory authorities with
jurisdiction over the Company or the Bank (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 Bank
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 summarized in the Registration Statement, the Pricing Disclosure Package and the
Prospectus, neither the Company nor the Bank is a party to any written agreement or
memorandum of understanding with, or a party to any commitment letter or similar agreement
or 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, nor have any of them been advised by any Bank
Regulatory Authority that it is contemplating issuing or requesting (or is considering the appropriateness of issuing or requesting) any such
order, decree, agreement, memorandum of understanding, extraordinary supervisory letter,
commitment letter or similar submission, or any such board of directors resolutions, in each
case that are applicable to the Company or the Bank 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 Shares; 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 Representatives 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.
(b) Delivery of Copies. The Company will deliver, without charge, (i) to the
Representatives, 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 Representatives 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 Shares as in the opinion of counsel for the Underwriters a
prospectus relating to the Shares 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 Shares
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 Representatives 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 Representatives
reasonably object.
(d) Notice to the Representatives. The Company will advise the Representatives
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 Shares 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 Package or the Prospectus or suspending any such qualification
of the Shares 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 Representatives 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 Representatives 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 use its commercially reasonable efforts, in
cooperation with the Representatives, to qualify the Shares for offer and sale under the
securities or Blue Sky laws of such jurisdictions as the Representatives shall reasonably
request and will continue such qualifications in effect so long as required for distribution
of the Shares; 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 Representatives 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, 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
Commission a registration statement under the Securities Act relating to, any shares of
Stock or any securities convertible into or exercisable or exchangeable for 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 Stock or any such other securities, whether any
such transaction described in clause (i) or (ii) above is to be settled by delivery of Stock
or such other securities, in cash or otherwise, without the prior written consent of X.X.
Xxxxxx Securities Inc., other than the Shares to be sold hereunder and any shares of Stock
of the Company issued upon the exercise of options or the vesting of restricted common stock
granted under Company Stock Plans existing as of the date of this Agreement. Notwithstanding
the foregoing, if (1) during the last 17 days of the 90-day restricted period, the Company
issues an earnings release or material news or a material event relating to the Company
occurs; or (2) prior to the expiration of the 90-day restricted period, the Company
announces that it will release earnings results during the 16-day period beginning on the
last day of the 90-day period, the restrictions imposed by this Agreement shall continue to
apply until the expiration of the 18-day period beginning on the issuance of the earnings
release or the occurrence of the material news or material event.
(i) Use of Proceeds. The Company will apply the net proceeds from the sale of the
Shares 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 Stock.
(k) Exchange Listing. The Company will use its commercially reasonable efforts to
list, subject to notice of issuance, the Shares on the Nasdaq Market.
(l) Reports. So long as the Shares are outstanding, the Company will make available to
the Representatives, promptly after they are available, copies of all reports or other
communications (financial or other) furnished to holders of the Shares, 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 Representatives 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.
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 B 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 Shares unless such terms have
previously been included in a free writing prospectus filed with the Commission; provided
that Underwriters may use a term sheet substantially in the form of Annex C hereto without
the consent of the Company; provided further that any Underwriter using such term sheet
shall notify the Company, and provide a copy of such term sheet to the Company, prior to, or
substantially concurrently with, the first use of such term sheet.
(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 Shares on the Closing Date or the Option Shares 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
Representatives.
(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.
(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 Fitch
Ratings Ltd., Standard & Poor’s Financial Services LLC and Xxxxx’x Investor Service, (i) no
downgrading to a rating below BB, BB- and Baa3 by each of Fitch Ratings Ltd., Standard &
Poor’s Financial
Services LLC and Xxxxx’x Investor Service, respectively, shall have occurred in the
rating accorded the subordinated notes due 2017 of Whitney National Bank, N.A. 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 (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 Representatives makes it impracticable or inadvisable to proceed with the
offering, sale or delivery of the Shares 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 Representatives 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 Representatives (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, PricewaterhouseCoopers LLP shall have furnished
to the Representatives, 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 Representatives, 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) Opinion and 10b-5 Statement of Counsel for the Company. Xxxxxx & Bird LLP, counsel
for the Company, shall have furnished to the Representatives, at the request of the Company,
their written opinion and 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 Representatives, to the effect set forth in Annex A-1 hereto.
(h) Opinion of the General Counsel of the Company. Xxxxxx X. Xxxxxxxx, Xx., General
Counsel for the Company, shall have furnished to the Representatives, at the request of the
Company, his 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 Representatives, to the effect set forth in Annex A-2 hereto.
(i) Opinion and 10b-5 Statement of Counsel for the Underwriters. The Representatives
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 Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the
Underwriters, with respect to such matters as the Representatives 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.
(j) 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 Shares; 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 Shares.
(k) Good Standing. The Representatives 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 Representatives may reasonably request, in each case in writing or any standard form of
telecommunication from the appropriate governmental authorities of such jurisdictions.
(l) Exchange Listing. The Shares to be delivered on the Closing Date or Additional
Closing Date, as the case may be, shall have been approved for listing on the Nasdaq
Market, subject to official notice of issuance.
(m) Lock-up Agreements. The “lock-up” agreements, each substantially in the form of
Exhibit A hereto, from Section 16 reporting executive officers and directors of the Company
and from any Directed Share Participant specified by the Representatives who is not a
Section 16 reporting executive officer or director of the Company, relating to sales and
certain other dispositions of shares of Stock or certain other securities, delivered to you
on or before the date hereof, shall be full force and effect on the Closing Date or
Additional Closing Date, as the case may be.
(n) 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 Representatives such
further certificates and documents as the Representatives 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, partners, 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, reasonable 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 prospectus wrapper
material distributed in connection with the reservation and sale of the Directed Shares 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 Representatives 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 Representatives expressly for use in the
Registration Statement, the Prospectus (or any amendment or supplement thereto), any Issuer Free
Writing Prospectus or any Pricing Disclosure 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 and reallowance figures
appearing in the fourth paragraph under the caption “Underwriting” and the information contained in
the seventeenth paragraph (the first sentence of which begins: “In connection with this offering,
the Underwriters may engage in stabilizing transactions”) and the eighteenth through twentieth
paragraphs 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, partners, 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 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 Shares 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 Shares 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 Shares. 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) Sale of Directed Shares. In connection with the offer and sale of Directed Shares, the
Company agrees promptly upon written notice, to indemnify and hold harmless each Underwriter and
each person, if any, who controls any Underwriter within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act, and each affiliate of any Underwriter within the
meaning of Rule 405 under the Securities Act from and against any and all losses, liabilities,
claims, damages and expenses incurred by them as a result of, arising out of or based upon (i) the
violation of any applicable laws or regulations of any foreign jurisdictions where Directed Shares
have been offered or (ii) the failure of any Directed Share Purchaser, who has agreed to purchase
Directed Shares, to pay for and accept delivery of the Directed Shares. Under no circumstances
will any Underwriter be liable to the Company or to any Directed Share Purchaser for any action
taken or omitted to be taken in connection with the Directed Shares or any transaction effected
with any Directed Share Purchaser, except to the extent found in a final judgment by a court of
competent jurisdiction (not subject to further appeal) to have resulted primarily and directly from
the gross negligence or willful misconduct of such Underwriter.
(f) 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
Underwriter with respect to the offering of the Shares 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.
(g) 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
Representatives, 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 Shares, 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 the Nasdaq 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
Representatives, is material and adverse and makes it impracticable or inadvisable to proceed
with the offering, sale or delivery of the Shares 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 Shares that it has agreed to purchase
hereunder on such date, the non-defaulting Underwriters may in their discretion arrange for the
purchase of such Shares by other persons satisfactory to the Company on the terms contained in this
Agreement. If, within 36 hours after any such default by any Underwriter, the non-defaulting
Underwriters do not arrange for the purchase of such Shares, then the Company shall be entitled to
a further period of 36 hours within which to procure other persons satisfactory to the
non-defaulting Underwriters to purchase such Shares on such terms. If other persons become
obligated or agree to purchase the Shares 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 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 Shares that a defaulting Underwriter agreed
but failed to purchase.
(b) If, after giving effect to any arrangements for the purchase of the Shares of a defaulting
Underwriter or Underwriters by the non-defaulting Underwriters and the Company as provided in
paragraph (a) above, the aggregate number of Shares that remain unpurchased on the Closing Date or
the Additional Closing Date, as the case may be, does not exceed one-eleventh of the aggregate
number of Shares to be purchased on such date, then the Company shall have the right to require
each non-defaulting Underwriter to purchase the number of Shares that such Underwriter agreed to
purchase hereunder on such date plus such Underwriter’s pro rata share (based on the number of
Shares that such Underwriter agreed to purchase on such date) of the Shares 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 Shares of a defaulting
Underwriter or Underwriters by the non-defaulting Underwriters and the Company as provided in
paragraph (a) above, the aggregate number of Shares that remain unpurchased on the Closing Date or
the Additional Closing Date, as the case may be, exceeds one-eleventh of the aggregate amount of
Shares 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 Shares 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 Shares 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 Shares under the state or foreign
securities or blue sky laws of such jurisdictions as the Representatives may designate and the
preparation, printing and distribution of a Blue Sky Memorandum and any offering of Directed Shares
outside of the United States (including the related fees and expenses of counsel for the
Underwriters); (v) the 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 Shares on the Nasdaq Market and (x) all expenses
related to the offering of Directed Shares.
(b) If (i) this Agreement is terminated pursuant to Section 9, (ii) the Company for any reason
fails to tender the Shares for delivery to the Underwriters or (iii) the Underwriters decline to
purchase the Underwritten Shares for any reason permitted under this Agreement, the Company shall
reimburse the Underwriters for such out-of-pocket costs and expenses (including the fees and
expenses of their counsel) as reasonably incurred by the Underwriters in connection with this
Agreement and the offering contemplated hereby, provided, however, that the Company shall not be
obligated to reimburse any Underwriter if the Representatives or the Underwriters rely on any of
Sections 6(i), 9(i), 9(iii) or 9(iv) to terminate this Agreement or to not satisfy their
obligations hereunder and purchase the Underwritten Shares. Furthermore, notwithstanding anything
to the contrary herein, if this Agreement is terminated pursuant to Section 10 hereof by reason of
the default of one or more of the Underwriters, the Company shall not be obligated to reimburse any
defaulting Underwriter for such expenses.
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 partners,
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 Shares 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 Shares 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; (c) the term “subsidiary” has the meaning set forth in Rule
405 under the
Securities Act; and (d) the term “significant subsidiary” has the meaning set forth in Rule
1-02 of Regulation S-X under the Exchange Act.
15. Miscellaneous.
(a) Authority of X.X. Xxxxxx Securities Inc. and SunTrust Xxxxxxxx Xxxxxxxx, Inc. Any action
by the Underwriters hereunder may be taken by X.X. Xxxxxx Securities Inc. and SunTrust Xxxxxxxx
Xxxxxxxx, Inc. on behalf of the Underwriters, and any such action taken by X.X. Xxxxxx Securities
Inc. and SunTrust Xxxxxxxx Xxxxxxxx, 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 Representatives c/o X.X.
Xxxxxx Securities Inc., 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (fax: (000) 000-0000),
Attention: Equity Syndicate Desk and c/o SunTrust Xxxxxxxx Xxxxxxxx, Inc., 0000 Xxxxxxxxx Xxxx XX,
Xxxxxxx, XX 00000, Attention: Xxxx Xxxxxxxx, Equity Syndicate (fax: (000) 000-0000). Notices to
the Company shall be given to it at 000 Xx. Xxxxxxx Xxxxxx, Xxx Xxxxxxx, Xxxxxxxxx 00000 (fax:
(000) 000-0000), Attention: Chief Financial Officer (with a copy to General Counsel).
(c) Governing Law. This Agreement and any claim, controversy or dispute arising under or
related to 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.
[Signatures on following page]
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, WHITNEY HOLDING CORPORATION |
||||
| By: | /s/ Xxxxxx X. Xxxxxxxxx, Xx. | |||
| Name: | Xxxxxx X. Xxxxxxxxx, Xx. | |||
| Title: | Senior Executive Vice President and Chief Financial Officer |
|||
Accepted:
October 27, 2009
X.X. XXXXXX SECURITIES INC.
SUNTRUST XXXXXXXX XXXXXXXX, INC.
For themselves and on behalf of the
several Underwriters listed
in Schedule 1 hereto.
several Underwriters listed
in Schedule 1 hereto.
X.X. XXXXXX SECURITIES INC.
By: |
/s/ Xxxxx Xxxxx | |||
| Xxxxx Xxxxx | ||||
| Executive Director | ||||
| SUNTRUST XXXXXXXX XXXXXXXX, INC. | ||||
By: |
/s/ Xxxxx X. Xxxxxx | |||
| Xxxxx X. Xxxxxx | ||||
| Managing Director | ||||
Schedule 1
| Underwriter | Number of Shares | |||
X.X. Xxxxxx Securities Inc. |
13,750,000 | |||
SunTrust Xxxxxxxx Xxxxxxxx, Inc. |
7,500,000 | |||
Xxxxx, Xxxxxxxx & Xxxxx, Inc. |
1,875,000 | |||
Sandler X’Xxxxx + Partners, L.P. |
1,875,000 | |||
Total |
25,000,000 | |||
Schedule 2
Significant Subsidiaries
Whitney National Bank, N.A.
