CITIZENS REPUBLIC BANCORP, INC. CONTINGENT CONVERTIBLE PERPETUAL NON-CUMULATIVE PREFERRED STOCK, SERIES A, NO PAR VALUE UNDERWRITING AGREEMENT
Exhibit 1.1
Execution Version
CONTINGENT CONVERTIBLE PERPETUAL NON-CUMULATIVE
PREFERRED STOCK, SERIES A, NO PAR VALUE
PREFERRED STOCK, SERIES A, NO PAR VALUE
June 5, 2008
To the Managers named in Schedule I hereto
for the Underwriters named in Schedule II hereto
for the Underwriters named in Schedule II hereto
Ladies and Gentlemen:
Citizens Republic Bancorp, Inc., a Michigan corporation (the “Company”), proposes to issue and
sell to the several underwriters named in Schedule II hereto (the “Underwriters”), for whom you are
acting as managers (the “Managers”), the number of shares of its Contingent Convertible Perpetual
Non-Cumulative Preferred Stock, Series A, no par value (the “Preferred Stock”), convertible into
shares of its common stock, no par value (the “Common Stock”) set forth in Schedule I hereto (the
“Firm Shares”). The Company also proposes to issue and sell to the several Underwriters not more
than the number of additional shares of its Preferred Stock, no par value, set forth in Schedule I
hereto (the “Additional Shares”) if and to the extent that you, as Managers of the offering, shall
have determined to exercise, on behalf of the Underwriters, the right to purchase such shares of
Preferred Stock granted to the Underwriters in Section 2 hereof. The Firm Shares and the Additional
Shares are hereinafter collectively referred to as the “Shares.” If the firms listed in Schedule
II hereto include only the Managers listed in Schedule I hereto, then the terms “Underwriters” and
“Managers” as used herein shall each be deemed to refer to such firms.
Concurrently with the offering of the Shares, the Company is offering 19,904,450 shares of its
Common Stock (or 22,890,114 shares if the underwriters exercise their overallotment option in full)
(the “Concurrent Offering”), in a registered offering pursuant to a separate prospectus and
underwriting agreement.
As part of the offering contemplated by this Agreement, each Underwriter has agreed to reserve
out of the Shares set forth Opposite its name on Schedule I hereto, up to 42,400 shares, for sale
to the Company’s employees, officers, and directors and other parties associated with the Company
(collectively, “Participants”), as set forth in the Prospectus under the caption “Underwriting”
(the “Directed Share Program”). The Shares to be sold by each Underwriter
pursuant to the Directed Share Program (the “Directed Shares”) will be sold by such
Underwriter pursuant to this Agreement at the public offering price. Any Directed Shares not
orally confirmed for purchase by any Participants by 8:00 a.m. New York City time on the business
day following the date on which this Agreement is executed will be offered to the public by each
Underwriter as set forth in the Prospectus.
The Company has filed with the Securities and Exchange Commission (the “Commission”) a
registration statement, including a prospectus, (the file number of which is set forth in Schedule
I hereto) on Form S-3, relating to the securities (the “Shelf Securities”), including the Shares,
to be issued from time to time by the Company. The registration statement as amended to the date
of this Agreement, including the information (if any) deemed to be part of the registration
statement at the time of effectiveness pursuant to Rule 430A or Rule 430B under the Securities Act
of 1933, as amended (the “Securities Act”), is hereinafter referred to as the “Registration
Statement,” and the related prospectus covering the Shelf Securities dated September 21, 2006 in
the form first used to confirm sales of the Shares (or in the form first made available to the
Underwriters by the Company to meet requests of purchasers pursuant to Rule 173 under the
Securities Act) is hereinafter referred to as the “Basic Prospectus.” The Basic Prospectus, as
supplemented by the prospectus supplement specifically relating to the Shares in the form first
used to confirm sales of the Shares (or in the form first made available to the Underwriters by the
Company to meet requests of purchasers pursuant to Rule 173 under the Securities Act) is
hereinafter referred to as the “Prospectus,” and the term “preliminary prospectus” means any
preliminary form of the Prospectus. For purposes of this Agreement, “free writing prospectus” has
the meaning set forth in Rule 405 under the Securities Act, “Time of Sale Prospectus” means the
preliminary prospectus together with the free writing prospectuses, if any, each identified in
Schedule I hereto, and “broadly available road show” means a “bona fide electronic road show” as
defined in Rule 433(h)(5) under the Securities Act that has been made available without restriction
to any person. As used herein, the terms “Registration Statement,” “Basic Prospectus,”
“preliminary prospectus,” “Time of Sale Prospectus” and “Prospectus” shall include the documents,
if any, incorporated by reference therein. The terms “supplement,” “amendment,” and “amend” as
used herein with respect to the Registration Statement, the Basic Prospectus, the Time of Sale
Prospectus, any preliminary prospectus or free writing prospectus shall include all documents
subsequently filed by the Company with the Commission pursuant to the Securities Exchange Act of
1934, as amended (the “Exchange Act”), that are deemed to be incorporated by reference therein.
1. Representations and Warranties. The Company represents and warrants to and agrees with
each of the Underwriters that:
(a) The Registration Statement has become effective; no stop order suspending the
effectiveness of the Registration Statement is in effect, and no proceedings for such purpose are
pending before or threatened by the Commission. If the Registration Statement is an automatic
shelf registration statement as defined in Rule 405 under the Securities Act, the Company is a
well-known seasoned issuer (as defined in Rule 405 under the Securities Act) eligible to use the
Registration Statement as an automatic shelf registration statement and the Company has not
received notice that the Commission objects to the use of the Registration Statement as an
automatic shelf registration statement.
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(b) (i) Each document, if any, filed or to be filed pursuant to the Exchange Act and
incorporated by reference in the Time of Sale Prospectus or the Prospectus complied or will comply
when so filed in all material respects with the Exchange Act and the applicable rules and
regulations of the Commission thereunder, (ii) each part of the Registration Statement, when such
part became effective, did not contain, and each such part, as amended or supplemented, if
applicable, will not contain any untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein not misleading,
(iii) the Registration Statement as of the date hereof does not contain any untrue statement of a
material fact or omit to state a material fact required to be stated therein or necessary to make
the statements therein not misleading, (iv) the Registration Statement and the Prospectus comply,
and as amended or supplemented, if applicable, will comply in all material respects with the
Securities Act and the applicable rules and regulations of the Commission thereunder, (v) the Time
of Sale Prospectus does not, and at the time of each sale of the Shares in connection with the
offering when the Prospectus is not yet available to prospective purchasers and at the Closing Date
(as defined in Section 4), the Time of Sale Prospectus, as then amended or supplemented by the
Company, if applicable, 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, (vi) each broadly available road show, if any, when
considered together with the Time of Sale Prospectus, does 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 and (vii) the Prospectus does
not contain and, as amended or supplemented, if applicable, 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, except that the
representations and warranties set forth in this paragraph do not apply to statements or omissions
in the Registration Statement, the Time of Sale Prospectus or the Prospectus based upon information
relating to any Underwriter furnished to the Company in writing by such Underwriter through the
Managers expressly for use therein.
(c) The Company is not an “ineligible issuer” in connection with the offering pursuant to
Rules 164, 405 and 433 under the Securities Act. Any free writing prospectus that the Company is
required to file pursuant to Rule 433(d) under the Securities Act has been, or will be, filed with
the Commission in accordance with the requirements of the Securities Act and the applicable rules
and regulations of the Commission thereunder. Each free writing prospectus that the Company has
filed, or is required to file, pursuant to Rule 433(d) under the Securities Act or that was
prepared by or behalf of or used or referred to by the Company complies or will comply in all
material respects with the requirements of the Securities Act and the applicable rules and
regulations of the Commission thereunder. Except for the free writing prospectuses, if any,
identified in Schedule I hereto forming part of the Time of Sale Prospectus, and electronic road
shows, if any, each furnished to you before first use, the Company has not prepared, used or
referred to, and will not, without your prior consent, prepare, use or refer to, any free writing
prospectus.
(d) The Company has been duly incorporated, is validly existing as a corporation in good
standing under the laws of the jurisdiction of its incorporation, has the corporate power and
authority to own its property and to conduct its business as described in the
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Time of Sale Prospectus and is duly qualified to transact business and is in good standing in
each jurisdiction in which the conduct of its business or its ownership or leasing of property
requires such qualification, except to the extent that the failure to be so qualified or be in good
standing would not have a material adverse effect on the Company and its subsidiaries, taken as a
whole.
(e) Each subsidiary of the Company has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the jurisdiction of its incorporation, has the
corporate power and authority to own its property and to conduct its business as described in the
Time of Sale Prospectus and is duly qualified to transact business and is in good standing in each
jurisdiction in which the conduct of its business or its ownership or leasing of property requires
such qualification, except to the extent that the failure to be so qualified or be in good standing
would not have a material adverse effect on the Company and its subsidiaries, taken as a whole; all
of the issued shares of capital stock of each subsidiary of the Company have been duly and validly
authorized and issued, are fully paid and non-assessable and are owned directly by the Company,
free and clear of all liens, encumbrances, equities or claims.
(f) This Agreement has been duly authorized, executed and delivered by the Company.
(g) The authorized capital stock of the Company conforms as to legal matters to the
description thereof contained in each of the Time of Sale Prospectus and the Prospectus.
(h) The shares of Common Stock outstanding prior to the issuance of the Shares have been duly
authorized and are validly issued, fully paid and non-assessable.
(i) The Shares have been duly authorized and, when issued and delivered in accordance with the
terms of this Agreement, will be validly issued, fully paid and non-assessable, and the issuance of
such Shares will not be subject to any preemptive or similar rights.
(j) The execution and delivery by the Company of, and the performance by the Company of its
obligations under, this Agreement will not contravene any provision of (x) the certificate of
incorporation or by-laws of the Company, (y) any agreement or other instrument binding upon the
Company or any of its subsidiaries, or (z) applicable law or any judgment, order or decree of any
governmental body, agency or court having jurisdiction over the Company or any subsidiary, in each
of (y) or (z), except as would not have a material adverse effect on the Company and its
subsidiaries, taken as a whole, and no consent, approval, authorization or order of, or
qualification with, any governmental body or agency is required for the performance by the Company
of its obligations under this Agreement, except such as may be required by the securities or Blue
Sky laws of the various states in connection with the offer and sale of the Shares.
(k) There has not occurred any material adverse change, or any development involving a
prospective material adverse change, in the general affairs, financial condition, earnings,
business, or operations of the Company and its subsidiaries, taken as a whole, from that set forth
in the Time of Sale Prospectus.
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(l) There are no legal or governmental proceedings pending or, to the knowledge of the
Company, threatened to which the Company or any of its subsidiaries is a party or to which any of
the properties of the Company or any of its subsidiaries is subject (i) other than proceedings
accurately described in all material respects in the Time of Sale Prospectus and proceedings that
would not have a material adverse effect on the Company and its subsidiaries, taken as a whole, or
on the power or ability of the Company to perform its obligations under this Agreement or to
consummate the transactions contemplated by the Time of Sale Prospectus or (ii) that are required
to be described in the Registration Statement or the Prospectus and are not so described; and there
are no statutes, regulations, contracts or other documents that are required to be described in the
Registration Statement or the Prospectus or to be filed as exhibits to the Registration Statement
that are not described or filed as required.
(m) Each preliminary prospectus filed as part of the registration statement as originally
filed or as part of any amendment thereto, or filed pursuant to Rule 424 under the Securities Act,
complied when so filed in all material respects with the Securities Act and the applicable rules
and regulations of the Commission thereunder.
(n) The Company and each of Citizens Bank, F&M Bank — Iowa and Citizens Bank Wealth
Management, N.A. are in compliance in all material respects with all laws administered by and
regulations of the Board of Governors of the Federal Reserve System, the Federal Deposit Insurance
Corporation, the Office of the Comptroller of the Currency and any other federal or state bank
regulatory authority with jurisdiction over the Company or any of its subsidiaries (the “Bank
Regulatory Authorities”), other than where such failures to comply would not have a material
adverse effect on the Company and its subsidiaries, taken as a whole.
(o) The Company and its subsidiaries possess all certificates, licenses, authorizations and
permits issued by the appropriate federal, state or foreign regulatory authorities necessary to
conduct their respective businesses, and neither the Company nor any of its subsidiaries has
received any notice of proceedings relating to the revocation or modification of any such
certificate, license, authorization or permit which, singly or in the aggregate, if the subject of
an unfavorable decision, ruling or finding, would have a material adverse effect on the Company and
its subsidiaries, taken as a whole.
(p) There are no written agreements or other written statements as described under 12 U.S.C.
1818(u) between any federal banking agency and the Company or any of its subsidiaries (whether or
not such federal banking agency has determined that publication would be contrary to the public
interest) and except as disclosed to the Underwriters, there are no material agreements, memoranda
of understanding, cease and desist orders, orders of prohibition or suspension or consent decrees
between any federal or state regulatory authority and the Company or any of its subsidiaries.
(q) Except as disclosed in the Time of Sale Prospectus and except for such failure that would
not individually or in the aggregate have a material adverse effect on the Company and its
subsidiaries, taken as a whole, the Company and its subsidiaries have good and marketable title to
all real properties and all other properties and assets owned by them, in each case free from
liens, encumbrances and defects that would affect the value thereof or interfere
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with the use made or to be made thereof by them; and except as disclosed in the Time of Sale
Prospectus and except for such failure that would not individually or in the aggregate have a
material adverse effect on the Company and its subsidiaries, taken as a whole, the Company and its
subsidiaries hold all leased real or personal property under valid and enforceable leases with no
exceptions that would interfere with the use made or to be made thereof by them.
(r) 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 Prospectus will not be, required to
register as an “investment company” as such term is defined in the Investment Company Act of 1940,
as amended.
(s) Ernst & Young LLP are independent public accountants with respect to the Company as
required by the Securities Act.
(t) The financial statements of the Company (including the related notes and supporting
schedules) included or incorporated by reference in the Time of Sale Prospectus comply with the
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 shown and their
results of operations and cash flows for the periods shown in such financial statements, and,
except as otherwise disclosed in the Time of Sale Prospectus, such financial statements have been
prepared in conformity with generally accepted accounting principles in the United States applied
on a consistent basis.
(u) The Company maintains (i) effective internal control over financial reporting as defined
in Rule 13a-15 under the Exchange Act, and (ii) a system of internal accounting controls sufficient
to provide reasonable assurance that (A) transactions are executed in accordance with management’s
general or specific authorizations; (B) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally accepted accounting principles and
to maintain asset accountability; (C) access to assets is permitted only in accordance with
management’s general or specific authorization; and (D) the
recorded accountability for assets
is compared with the existing assets at reasonable intervals and appropriate action is taken with
respect to any differences.
(v) Based on its most recent evaluation of its internal control over financial reporting
undertaken pursuant to the requirements of the Securities Act, the Company is not aware of (i) any
significant deficiency or material weakness in the design or operation of internal control over
financial reporting which are reasonably likely to adversely affect the Company’s ability to
record, process, summarize and report financial information; or (ii) any fraud, whether or not
material, that involves management or other employees who have a significant role in the Company’s
internal control over financial reporting.
(w) Prior to the date hereof, neither the Company nor any of its affiliates has taken any
action which is designed to or which has constituted or which could reasonably be expected to cause
or result in stabilization or manipulation of the price of any security of the Company in
connection with the offering of the Shares.
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(x) The Company and its subsidiaries (i) are in compliance with any and all applicable
foreign, federal, state and local laws and regulations relating to the protection of human health
and safety, the environment or hazardous or toxic substances or wastes, pollutants or contaminants
(“Environmental Laws”), (ii) have received all permits, licenses or other approvals required of
them under applicable Environmental Laws to conduct their respective businesses and (iii) are in
compliance with all terms and conditions of any such permit, license or approval, except where such
noncompliance with Environmental Laws, failure to receive required permits, licenses or other
approvals or failure to comply with the terms and conditions of such permits, licenses or approvals
would not, singly or in the aggregate, have a material adverse effect on the Company and its
subsidiaries, taken as a whole.
(y) There are no costs or liabilities associated with Environmental Laws (including, without
limitation, any capital or operating expenditures required for clean-up, closure of properties or
compliance with Environmental Laws or any permit, license or approval, any related constraints on
operating activities and any potential liabilities to third parties) which would, singly or in the
aggregate, have a material adverse effect on the Company and its subsidiaries, taken as a whole.
(z) There are no contracts, agreements or understandings between the Company and any person
granting such person the right to require the Company to file a registration statement under the
Securities Act with respect to any securities of the Company or to require the Company to include
such securities with the Shares registered pursuant to the Registration Statement.
(aa) Neither the Company nor any of its subsidiaries or affiliates, nor any director, officer,
or employee, nor, to the Company’s knowledge, any agent or representative of the Company or of any
of its subsidiaries or affiliates, has taken or will take any action in furtherance of an offer,
payment, promise to pay, or authorization or approval of the payment or giving of money, property,
gifts or anything else of value, directly or indirectly, to any “government official” (including
any officer or employee of a government or government-owned or controlled entity or of a public
international organization, or any person acting in an official capacity for or on behalf of any of
the foregoing, or any political party or party official or candidate for political office) to
influence official action or secure an improper advantage; and the Company and its subsidiaries and
affiliates have conducted their businesses in compliance with applicable anti-corruption laws and
have instituted and maintain and will continue to maintain policies and procedures designed to
promote and achieve compliance with such laws and with the representation and warranty contained
herein.
(bb) The operations of the Company and its subsidiaries are and have been conducted at all
times in material compliance with all applicable financial recordkeeping and reporting
requirements, including those of the Bank Secrecy Act, as amended by Title III of the Uniting and
Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism
Act of 2001 (USA PATRIOT Act), and the applicable anti-money laundering statutes of jurisdictions
where the Company and its subsidiaries conduct business, the rules and regulations thereunder and
any related or similar rules, regulations or guidelines, issued, administered or enforced by any
governmental agency (collectively, the “Anti-Money
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Laundering Laws”), and no action, suit or proceeding by or before any court or governmental
agency, authority or body or any arbitrator involving the Company or any of its subsidiaries with
respect to the Anti-Money Laundering Laws is pending or, to the knowledge of the Company,
threatened.
(cc) (i) The Company represents that neither the Company nor any of its subsidiaries
(collectively, the “Entity”) or, to the knowledge of the Entity, any director, officer, employee,
agent, affiliate or representative of the Entity, is an individual or entity (“Person”) that is, or
is owned or controlled by a Person that is:
(A) the subject of any sanctions administered or enforced by the U.S.
Department of Treasury’s Office of Foreign Assets Control (“OFAC”) or other relevant
sanctions authority (collectively, “Sanctions”), nor
(B) located, organized or resident in a country or territory that is the
subject of Sanctions (including, without limitation, Burma/Myanmar, Cuba, Iran,
North Korea, Sudan and Syria).
(ii) The Entity represents and covenants that it will not, directly or indirectly, use the
proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any
subsidiary, joint venture partner or other Person:
(A) to fund or facilitate any activities or business of or with any Person or
in any country or territory that, at the time of such funding or facilitation, is
the subject of Sanctions; or
(B) in any other manner that will result in a violation of Sanctions by any
Person (including any Person participating in the offering, whether as underwriter,
advisor, investor or otherwise).
(iii) The Entity represents and covenants that it has not knowingly engaged in, is not now
knowingly engaged in, and will not engage in, any dealings or transactions with any Person, or in
any country or territory, that at the time of the dealing or transaction is or was the subject of
Sanctions.
The Company has not offered, or caused the Underwriters to offer, Shares to any person
pursuant to the Directed Share Program with the specific intent to unlawfully influence (i) a
customer or supplier of the Company to alter the customer’s or supplier’s level or type of business
with the Company, or (ii) a trade journalist or publication to write or publish favorable
information about the Company or its products.
2. Agreements to Sell and Purchase. On the basis of the representations and warranties herein
contained, but subject to the conditions hereinafter stated, the Company hereby agrees to sell to
the several Underwriters, and each Underwriter agrees, severally and not jointly, to purchase from
the Company, the respective numbers of Firm Shares set forth in Schedule II hereto opposite its
name at the purchase price set forth in Schedule I hereto (the “Purchase Price”).
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On the basis of the representations and warranties contained in this Agreement, and subject to
its terms and conditions, the Company agrees to sell to the Underwriters the Additional Shares, and
the Underwriters shall have the right to purchase, severally and not jointly, up to the number of
Additional Shares set forth in Schedule I hereto at the Purchase Price. You may exercise this
right on behalf of the Underwriters in whole or from time to time in part by giving written notice
not later than 30 days after the date of the Prospectus. Any exercise notice shall specify the
number of Additional Shares to be purchased by the Underwriters and the date on which such shares
are to be purchased. Each purchase date must be at least one business day after the written notice
is given and may not be earlier than the closing date for the Firm Shares nor later than ten
business days after the date of such notice. Additional Shares may be purchased as provided in
Section 4 hereof solely for the purpose of covering over-allotments made in connection with the
offering of the Firm Shares. On each day, if any, that Additional Shares are to be purchased (an
“Option Closing Date”), each Underwriter agrees, severally and not jointly, to purchase the number
of Additional Shares (subject to such adjustments to eliminate fractional shares as you may
determine) that bears the same proportion to the total number of Additional Shares to be purchased
on such Option Closing Date as the number of Firm Shares set forth in Schedule II hereto opposite
the name of such Underwriter bears to the total number of Firm Shares.
3. Public Offering. The Company is advised by you that the Underwriters propose to make a
public offering of their respective portions of the Shares as soon after the Registration Statement
and this Agreement have become effective as in your judgment is advisable. The Company is further
advised by you that the Shares are to be offered to the public upon the terms set forth in the
Prospectus.
4. Payment and Delivery. Payment for the Firm Shares shall be made to the Company in Federal
or other funds immediately available in New York City on the closing date and time set forth in
Schedule I hereto, or at such other time on the same or such other date, not later than the fifth
business day thereafter, as may be designated in writing by you. The time and date of such payment
are hereinafter referred to as the “Closing Date.”
Payment for any Additional Shares shall be made to the Company in Federal or other funds
immediately available in New York City on the date specified in the corresponding notice described
in Section 2 or at such other time on the same or on such other date, in any event not later than
the tenth business day thereafter, as may be designated in writing by you.
The Firm Shares and the Additional Shares shall be registered in such names and in such
denominations as you shall request in writing not later than one full business day prior to the
Closing Date or the applicable Option Closing Date, as the case may be, for the respective accounts
of the several Underwriters, with any transfer taxes payable in connection with the transfer of the
Shares to the Underwriters duly paid, against payment of the Purchase Price therefor.
5. Conditions to the Underwriters’ Obligations. The several obligations of the Underwriters
are subject to the following conditions:
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(a) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given
of any intended or potential downgrading or of any review for a possible change that does
not indicate the direction of the possible change, in the rating accorded any of the
securities of the Company or any of its subsidiaries by any “nationally recognized
statistical rating organization,” as such term is defined for purposes of Rule 436(g)(2)
under the Securities Act; and
(ii) there shall not have occurred any change, or any development involving a
prospective change, in the general affairs, financial condition, earnings, business or
operations of the Company and its subsidiaries, taken as a whole, from that set forth in the
Time of Sale Prospectus as of the date of this Agreement that, in your judgment, is material
and adverse and that makes it, in your judgment, impracticable to market the Shares on the
terms and in the manner contemplated in the Time of Sale Prospectus.
(b) The Underwriters shall have received on the Closing Date a certificate, dated the Closing
Date and signed by an executive officer of the Company, to the effect set forth in Section 5(a)(i)
above and to the effect that the representations and warranties of the Company contained in this
Agreement are true and correct as of the Closing Date and that the Company has complied in all
material respects with all of the agreements and satisfied all of the conditions on its part to be
performed or satisfied hereunder on or before the Closing Date.
The officer signing and delivering such certificate may rely upon the best of his or her
knowledge as to proceedings threatened.
(c) The Underwriters shall have received on the Closing Date an opinion of Xxx Xxxxxxxxx,
General Counsel of the Company, dated the Closing Date, to the effect that:
(i) the Company has been duly incorporated, is validly existing as a corporation in
good standing under the laws of the jurisdiction of its incorporation, has the corporate
power and authority to own its property and to conduct its business as described in the Time
of Sale Prospectus and is duly qualified to transact business and is in good standing in
each jurisdiction in which the conduct of its business or its ownership or leasing of
property requires such qualification, except to the extent that the failure to be so
qualified or be in good standing would not have a material adverse effect on the Company and
its subsidiaries, taken as a whole;
(ii) each subsidiary of the Company has been duly incorporated, is validly existing as
a corporation in good standing under the laws of the jurisdiction of its incorporation, has
the corporate power and authority to own its property and to conduct its business as
described in the Time of Sale Prospectus and is duly qualified to transact business and is
in good standing in each jurisdiction in which the conduct of its business or its ownership
or leasing of property requires such qualification, except to the extent that the failure to
be so qualified or be in good standing would not have a material adverse effect on the
Company and its subsidiaries, taken as a whole;
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(iii) the authorized capital stock of the Company conforms as to legal matters to the
description thereof contained in each of the Time of Sale Prospectus and the Prospectus;
(iv) the shares of Common Stock outstanding prior to the issuance of the Shares have
been duly authorized and are validly issued, fully paid and non-assessable;
(v) all of the issued shares of capital stock of each subsidiary of the Company have
been duly and validly authorized and issued, are fully paid and non-assessable and are owned
directly by the Company, free and clear of all liens, encumbrances, equities or claims;
(vi) the Shares have been duly authorized and, when issued and delivered in accordance
with the terms of this Agreement, will be validly issued, fully paid and non-assessable, and
the issuance of such Shares will not be subject to any preemptive or similar rights;
(vii) this Agreement has been duly authorized, executed and delivered by the Company;
(viii) the execution and delivery by the Company of, and the performance by the Company
of its obligations under, this Agreement will not contravene any provision (x) the
certificate of incorporation or by-laws of the Company, (y) to such counsel’s knowledge, any
agreement or other instrument binding upon the Company or any of its subsidiaries, or (z)
applicable law or, to such counsel’s knowledge, any judgment, order or decree of any
governmental body, agency or court having jurisdiction over the Company or any subsidiary,
in each of (y) or (z), except as would not have a material adverse effect on the Company and
its subsidiaries, taken as a whole, and no consent, approval, authorization or order of, or
qualification with, any governmental body or agency is required for the performance by the
Company of its obligations under this Agreement, except such as may be required by the
securities or Blue Sky laws of the various states in connection with the offer and sale of
the Shares;
(ix) the statements relating to legal matters, documents or proceedings included in (A)
the Time of Sale Prospectus and the Prospectus under the captions “Description of Capital
Stock” and “Description of Preferred Stock,” (B) the Prospectus under the caption
“Regulatory Considerations,” (C) the Registration Statement in Item 15 and (D) the Company’s
annual report on Form 10-K, filed with the Commission on February 29, 2008, under the
caption “Item 1. Business — Supervision and Regulation,” in each case fairly summarize in
all material respects such matters, documents or proceedings;
(x) such counsel does not know of any legal or governmental proceedings pending or
threatened to which the Company or any of its subsidiaries is a party or to which any of the
properties of the Company or any of its subsidiaries is subject that are required to be
described in the Registration Statement or the Prospectus and are not so described or of any
statutes, regulations, contracts or other documents that are required to
11
be described in the Registration Statement or the Prospectus or to be filed as exhibits
to the Registration Statement that are not described or filed as required; and
(xi) in the opinion of such counsel (1) each document filed pursuant to the Exchange
Act and incorporated by reference in the Time of Sale Prospectus or the Prospectus (except
for the financial statements and financial schedules and other financial information and
data included therein or omitted therefrom, as to which such counsel need not express any
opinion) appeared on its face to be appropriately responsive as of its filing date in all
material respects to the requirements of the Exchange Act and the applicable rules and
regulations of the Commission thereunder, and (2) the Registration Statement and the
Prospectus (except for the financial statements and financial schedules and other financial
information and data included therein or omitted therefrom as to which such counsel need not
express any opinion) appear on their face to be appropriately responsive in all material
respects to the requirements of the Securities Act and the applicable rules and regulations
of the Commission thereunder.
The foregoing opinion will include a statement to the effect that nothing has come to the
attention of such counsel that causes such counsel to believe that (1) any part of the Registration
Statement, when such part became effective, (except for the financial statements and financial
schedules and other financial information and data included therein or omitted therefrom as to
which such counsel need not express any belief) contained any untrue statement of a material fact
or omitted to state a material fact required to be stated therein or necessary to make the
statements therein not misleading, (2) the Registration Statement or the Prospectus (except for the
financial statements and financial schedules and other financial information and data included
therein or omitted therefrom as to which such counsel need not express any belief) on the date of
this Agreement contained any untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements therein not misleading, (3)
the Time of Sale Prospectus (except for the financial statements and financial schedules and other
financial information and data included therein or omitted therefrom, as to which such counsel need
not express any belief) as of the date of this Agreement or as amended or supplemented, if
applicable, as of the Closing Date contained or contains any untrue statement of a material fact or
omitted or omits 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 or (4) the Prospectus (except
for the financial statements and financial schedules and other financial information and data
included therein or omitted therefrom, as to which such counsel need not express any belief) as
amended or supplemented, if applicable, as of the Closing Date contains any untrue statement of a
material fact or omits to state a material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made not misleading.
(d) The Underwriters shall have received on the Closing Date an opinion of Wachtell, Lipton,
Xxxxx & Xxxx, special outside counsel for the Company in connection with the transactions
contemplated hereby, dated the Closing Date, to the effect that:
(i) this Agreement has been duly executed and delivered by the Company;
12
(ii) the execution and delivery by the Company of, and the performance by the Company
of its obligations under, this Agreement will not contravene any provision of applicable
United States federal or New York State law or published rule or regulation that in such
counsel’s experience normally would be applicable to bank holding companies with respect to
such execution, delivery or performance and no consent, approval, authorization or order of,
or qualification with, any governmental body or agency of the United States or the State of
New York is required for the performance by the Company of its obligations under this
Agreement, except such as have been obtained or effected under the Securities Act or as may
be required by the securities or Blue Sky laws of the various states or securities
regulations of foreign jurisdictions in connection with the offer and sale of the Shares;
(iii) the statements relating to legal matters, documents or proceedings included in
the Prospectus under the captions “Description of Preferred Stock We May Offer” and
“Description of Common Stock We May Offer” and “Description of Preferred Stock,” insofar as
these statements purport to constitute summaries of legal matters or the provisions of the
documents referred to therein, fairly summarize in all material respects such matters,
documents or proceedings;
(iv) [reserved];
(v) 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 Prospectus will not be,
required to register as an “investment company” as such term is defined in the Investment
Company Act of 1940, as amended; and
(vi) in the opinion of such counsel, (1) each document filed pursuant to the Exchange
Act and incorporated by reference in the Time of Sale Prospectus or the Prospectus (except
for the financial statements and financial schedules and other financial information and
data included therein or omitted therefrom as to which such counsel need not express any
opinion) appeared on its face to comply as to form in all material respects with the
requirements of the Exchange Act and the applicable rules and regulations of the Commission
thereunder, and (2) the Registration Statement and the Prospectus (except for the financial
statements and financial schedules and other financial information and data included therein
or omitted therefrom as to which such counsel need not express any opinion) appear on their
face to comply as to form in all material respects with the requirements of the Securities
Act and the applicable rules and regulations of the Commission thereunder.
Such counsel shall also state that it has participated in conferences with officers and other
representatives of the Company and representatives of the Underwriters at which the contents of the
Registration Statement, the Prospectus and the Time of Sale Prospectus were discussed and, although
such counsel has not independently checked or verified, and is not passing upon and assumes no
responsibility for, the accuracy, completeness or fairness of the statements contained in
Registration Statement, Prospectus or Time of Sale Prospectus (except as and to the extent stated
in subparagraph (iii) above), on the basis of the foregoing, such counsel shall state that
13
nothing has come to the attention of such counsel that causes such counsel to believe that (I)
the Registration Statement, as of its most recent effective date, contained any untrue statement of
a material fact or omitted to state a material fact required to be stated therein or necessary to
make the statements therein not misleading, (II) the Prospectus, on the date of this Agreement,
contained any untrue statement of a material fact or omitted to state a material fact required to
be stated therein or necessary to make the statements therein not misleading, (III) the Time of
Sale Prospectus as of the date of this Agreement or as amended or supplemented, if applicable, as
of the Closing Date contained or contains any untrue statement of a material fact or omitted or
omits 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 or (IV) the Prospectus as amended or
supplemented, if applicable, as of the Closing Date contains any untrue statement of a material
fact or omits to state a material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made not misleading (it being understood, with
respect to (I) through (IV) above, that such counsel need express no such view with respect to the
financial statements and financial schedules and other financial information and data included in
such documents or omitted therefrom).
(e) The Underwriters shall have received on the Closing Date an opinion of Xxxxxx Xxxxxxxx
Xxxxx & Xxxxxxxx LLP, counsel for the Underwriters, dated the Closing Date, covering the matters
referred to in Sections 5(d)(i) and clauses 5(d)(vi)(2), 5(d)(II), 5(d)(III) and 5(d)(IV) above.
With respect to clauses 5(d)(vi)(2), 5(d)(II), 5(d)(III) and 5(d)(IV) above, Xxxxxx Xxxxxxxx
Xxxxx & Xxxxxxxx LLP may state that their opinions and beliefs are based upon their participation
in the preparation of the Time of Sale Prospectus, the Prospectus, the free writing prospectuses
identified as part of the Time of Sale Prospectus in Schedule I hereto and any amendments or
supplements thereto (other than the documents incorporated by reference) and upon review and
discussion of the contents of the Registration Statement, the Time of Sale Prospectus and the
Prospectus (including documents incorporated by reference), but are without independent check or
verification, except as specified.
The opinion of counsel for the Company described in Section 5(d) above shall be rendered to
the Underwriters at the request of the Company and shall so state therein.
(f) The Underwriters shall have received, on each of the date hereof and the Closing Date, a
letter dated the date hereof or the Closing Date, as the case may be, in form and substance
reasonably satisfactory to the Underwriters, from Ernst & Young LLP, independent public
accountants, containing statements and information of the type ordinarily included in accountants’
“comfort letters” to underwriters with respect to the financial statements and certain financial
information contained in the Registration Statement, the Time of Sale Prospectus and the
Prospectus; provided that the letter delivered on the Closing Date shall use a “cut-off date” not
earlier than the date hereof.
(g) The “lock-up” agreements, each substantially in the form of Exhibit A hereto, between you
and certain shareholders, officers and directors of the Company relating to sales and certain other
dispositions of shares of Common Stock, Preferred Stock or certain other securities,
14
delivered to you on or before the date hereof, shall be in full force and effect on the
Closing Date.
The several obligations of the Underwriters to purchase Additional Shares hereunder are
subject to the delivery to you on the applicable Option Closing Date of such documents as you may
reasonably request with respect to the good standing of the Company, the due authorization and
issuance of the Additional Shares to be sold on such Option Closing Date and other customary
matters related to the issuance of such Additional Shares.
6. Covenants of the Company. The Company covenants with each Underwriter as follows:
(a) To furnish to you, without charge, a signed copy of the Registration Statement (including
exhibits thereto and documents incorporated by reference therein) and to deliver to each of the
Underwriters during the period mentioned in Section 6(e) or 6(f) below, as many copies of the Time
of Sale Prospectus, the Prospectus, any documents incorporated by reference therein and any
supplements and amendments thereto or to the Registration Statement as you may reasonably request.
(b) Before amending or supplementing (other than through incorporation by reference of
periodic reports of the Company) the Registration Statement, the Time of Sale Prospectus or the
Prospectus, to furnish to you a copy of each such proposed amendment or supplement and not to file
any such proposed amendment or supplement to which you reasonably object in a timely manner, except
as required by applicable law or regulation.
(c) To furnish to you a copy of each proposed free writing prospectus to be prepared by or on
behalf of, used by, or referred to by the Company and not to use or refer to any proposed free
writing prospectus to which you reasonably object.
(d) Not to take any action that would result in an Underwriter or the Company being required
to file with the Commission pursuant to Rule 433(d) under the Securities Act a free writing
prospectus, prepared by or on behalf of the Underwriter that the Underwriter otherwise would not
have been required to file thereunder.
(e) If the Time of Sale Prospectus is being used to solicit offers to buy the Shares at a time
when the Prospectus is not yet available to prospective purchasers and any event shall occur or
condition exist as a result of which it is necessary to amend or supplement the Time of Sale
Prospectus in order to make the statements therein, in the light of the circumstances, not
misleading, or if any event shall occur or condition exist as a result of which the Time of Sale
Prospectus conflicts with the information contained in the Registration Statement then on file, or
if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Time
of Sale Prospectus to comply with applicable law, forthwith to prepare, file with the Commission
and furnish, at its own expense, to the Underwriters and to any dealer upon request, either
amendments or supplements to the Time of Sale Prospectus so that the statements in the Time of Sale
Prospectus as so amended or supplemented will not, in the light of the circumstances when the Time
of Sale Prospectus is delivered to a prospective purchaser, be misleading or so that the Time of
Sale Prospectus, as amended or supplemented, will no longer
15
conflict with the Registration Statement, or so that the Time of Sale Prospectus, as amended
or supplemented, will comply with applicable law.
(f) If, during such period after the first date of the public offering of the Shares as in the
opinion of counsel for the Underwriters the Prospectus (or in lieu thereof the notice referred to
in Rule 173(a) of the Securities Act) is required by law to be delivered in connection with sales
by an Underwriter or dealer, any event shall occur or condition exist as a result of which it is
necessary to amend or supplement the Prospectus in order to make the statements therein, in the
light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule
173(a) of the Securities Act) is delivered to a purchaser, not misleading, or if, in the opinion of
counsel for the Underwriters, it is necessary to amend or supplement the Prospectus to comply with
applicable law, forthwith to prepare, file with the Commission and furnish, at its own expense, to
the Underwriters and to the dealers (whose names and addresses you will furnish to the Company) to
which Shares may have been sold by you on behalf of the Underwriters and to any other dealers upon
request, either amendments or supplements to the Prospectus so that the statements in the
Prospectus as so amended or supplemented will not, in the light of the circumstances when the
Prospectus (or in lieu thereof the notice referred to in Rule 173(a) of the Securities Act) is
delivered to a purchaser, be misleading or so that the Prospectus, as amended or supplemented, will
comply with applicable law.
(g) To file promptly all reports and documents and any preliminary or definitive proxy or
information statement required to be filed by the Company with the Commission in order to comply
with the Exchange Act for so long as the prospectus is required by law to be delivered (or in lieu
thereof the notice referred to in Rule 173(a) of the Securities Act) in connection with any sales
by an underwriter or dealer.
(h) To advise you promptly, confirming such advice in writing, of any request by the
Commission for amendments or supplements to the Registration Statement, any preliminary prospectus,
the Prospectus or any free writing prospectus or for additional information with respect thereto,
or of notice of institution of proceedings for, or the entry of a stop order, suspending the
effectiveness of the Registration Statement and, if the Commission should enter a stop order
suspending the effectiveness of the Registration Statement, to use the Company’s reasonable best
efforts to obtain the lifting or removal of such order as soon as possible.
(i) To endeavor to qualify the Shares for offer and sale under the securities or Blue Sky laws
of such jurisdictions as you shall reasonably request (provided that in connection therewith the
Company shall not be required to qualify as a foreign corporation or to file a general consent to
service of process in any jurisdiction or to become subject to taxation in any jurisdiction in
which it is not otherwise subject).
(j) To make generally available to the Company’s security holders and to you as soon as
practicable an earning statement (which need not be audited) covering a period of at least twelve
months beginning with the first fiscal quarter of the Company occurring after the date of this
Agreement which shall satisfy the provisions of Section 11(a) of the Securities Act and the rules
and regulations of the Commission thereunder.
16
(k) Whether or not the transactions contemplated in this Agreement are consummated or this
Agreement is terminated, to pay or cause to be paid all expenses incident to the performance of its
obligations under this Agreement, including: (i) the fees, disbursements and expenses of the
Company’s counsel and the Company’s accountants in connection with the registration and delivery of
the Shares under the Securities Act and all other fees or expenses in connection with the
preparation and filing of the Registration Statement, any preliminary prospectus, the Time of Sale
Prospectus, the Prospectus, any free writing prospectus prepared by or on behalf of, used by, or
referred to by the Company and amendments and supplements to any of the foregoing, including the
filing fees payable to the Commission relating to the Shares (within the time required by Rule 456
(b)(1), if applicable), all printing costs associated therewith, and the mailing and delivering of
copies thereof to the Underwriters and dealers, in the quantities hereinabove specified, (ii) all
costs and expenses related to the transfer and delivery of the Shares to the Underwriters,
including any transfer or other taxes payable thereon, (iii) the cost of printing or producing any
Blue Sky or Legal Investment memorandum in connection with the offer and sale of the Shares under
state securities laws and all expenses in connection with the qualification of the Shares for offer
and sale under state securities laws as provided in Section 6(h) hereof, including filing fees and
the reasonable fees and disbursements of counsel for the Underwriters in connection with such
qualification and in connection with the Blue Sky or Legal Investment memorandum, (iv) all filing
fees and the reasonable fees and disbursements of counsel to the Underwriters incurred in
connection with the review and qualification of the offering of the Shares by the Financial
Industry Regulatory Authority, Inc. (provided, however, that the aggregate fees and disbursements
of counsel to be paid by the Company in connection with the preceding clause (iii) and this clause
(iv) shall not exceed $75,000 without the prior written consent of the Company, which consent shall
not be unreasonably withheld), (v) all costs and expenses incident to listing the Shares on the New
York Stock Exchange (“NYSE”), (vi) the cost of printing certificates representing the Shares, (vii)
the costs and charges of any transfer agent, registrar or depositary, (viii) the costs and expenses
of the Company relating to investor presentations on any “road show” undertaken in connection with
the marketing of the offering of the Shares, including, without limitation, expenses associated
with the preparation or dissemination of any electronic road show, expenses associated with the
production of road show slides and graphics, fees and expenses of any consultants engaged in
connection with the road show presentations with the prior approval of the Company, travel and
lodging expenses of the representatives and officers of the Company and any such consultants, and
the cost of any aircraft chartered in connection with the road show, (ix) the document production
charges and expenses associated with printing this Agreement and (x) all other costs and expenses
incident to the performance of the obligations of the Company hereunder for which provision is not
otherwise made in this Section. It is understood, however, that except as provided in this
Section, Section 8 entitled “Indemnity and Contribution” and the last paragraph of Section 10
below, the Underwriters will pay all of their costs and expenses, including fees and disbursements
of their counsel, stock transfer taxes payable on resale of any of the Shares by them and any
advertising expenses connected with any offers they may make.
(l) If the third anniversary of the initial effective date of the Registration Statement
occurs before all the Shares have been sold by the Underwriters, prior to the third anniversary to
file a new shelf registration statement and to take any other action necessary to permit the public
17
offering of the Shares to continue without interruption; references herein to the Registration
Statement shall include the new registration statement declared effective by the Commission;
(m) To prepare a final term sheet (the “Final Term Sheet”) relating to the offering of the
Shares, containing only information that describes the final terms of the offering in a form
consented to by the Managers, and to file such final term sheet within the period required by Rule
433(d)(5)(ii) under the Securities Act following the date the final terms have been established for
the offering of the Shares.
(n) Not to, and to cause the each of its direct and indirect subsidiaries not to, take,
directly or indirectly, any action designed, or which will constitute, or has constituted, or might
reasonably be expected to cause or result in the stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of the Shares.
(o) To use its reasonable best efforts to cause the Shares to be listed on NYSE and to
maintain the listing of the Shares on NYSE.
(p) The Company agrees to pay (1) all fees and disbursements of counsel incurred by the
Underwriters in connection with the Directed Share Program, (2) all costs and expenses incurred by
the Underwriters in connection with the printing (or reproduction) and delivery (including postage,
air freight charges and charges for counting and packaging) of copies of the Directed Share Program
material and (3) all stamp duties, similar taxes or duties or other taxes, if any, incurred by the
Underwriters in connection with the Directed Share Program.
(q) To use commercially reasonable efforts to obtain the approval by the holders of the Common
Stock of an amendment to the Company’s Articles of Incorporation to increase the number of
authorized shares of Common Stock to permit the full conversion of the Preferred Stock into Common
Stock (“Shareholder Approval”).
(r) Until Shareholder Approval is obtained, to first reserve any additional shares of Common
Stock authorized after the issuance of the Shares to satisfy the Company’s obligations to deliver
Common Stock pursuant to any conversion of the Shares.
Furthermore, the Company covenants with each Underwriter that, without the prior written
consent of the Manager identified in Schedule I with the authorization to release this lock-up on
behalf of the Underwriters, it will not, during the restricted period set forth in Schedule I
hereto, (1) 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, lend, or
otherwise transfer or dispose of, directly or indirectly, any shares of Common Stock or Preferred
Stock or any securities convertible into or exercisable or exchangeable for Common Stock or
Preferred Stock or (2) enter into any swap or other arrangement that transfers to another, in whole
or in part, any of the economic consequences of ownership of the Common Stock, whether any such
transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or
such other securities, in cash or otherwise or (3) file any registration statement with the
Commission relating to the offering of any shares of Common Stock or Preferred Stock or any
securities convertible into or exercisable or exchangeable for Common Stock or Preferred Stock.
The foregoing sentence shall not apply to (a) the Shares to be sold hereunder, (b) the sale
18
of the Common Stock offered in the Concurrent Offering, (c) the issuance by the Company of
shares of Common Stock or Preferred Stock upon the exercise of an option or warrant, settlement of,
or lapse of restrictions on, any other equity awards or the conversion of a security outstanding on
the date hereof or pursuant to the Preferred Stock or the grant of stock options, restricted stock,
restricted stock units or other equity awards pursuant to Company employee benefit arrangements, or
(d) the establishment of a trading plan pursuant to Rule 10b5-1 under the Exchange Act for the
transfer of shares of Common Stock or Preferred Stock, provided that such plan does not provide for
the transfer of Common Stock or Preferred Stock during the 90-day restricted period. For the
avoidance of doubt, the foregoing restrictions in this Section 6 shall not apply to the Company or
any of its subsidiaries acting on behalf of third parties in their respective various fiduciary,
broker, agency, management or comparable capacities in respect of securities not beneficially owned
by the Company, including, without limitation, sales of Company Stock by the Company’s 401(k) and
personal trusts.
7. Free-Writing Prospectuses. (i) The Company agrees that, unless it has obtained or obtains,
as the case may be, the prior written consent of the Representatives, and (ii) each Underwriter
severally covenants with the Company that, unless it has obtained or obtains, as the case may be,
the prior written consent of the Company, it has not made and will not make any offer relating to
the Shares that would constitute an issuer free writing prospectus or that would otherwise
constitute a “free writing prospectus” (as defined in Rule 405) required to be filed by the
Company, other than the Final Term Sheet, provided that the prior written consent of the parties
hereto shall be deemed to have been given in respect of the Free Writing Prospectuses, if any,
designated on Schedule I hereto. Any such free writing prospectus consented to by the
Representatives or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.”
The Company agrees that (x) it has treated and will treat, as the case may be, each Permitted Free
Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as
the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free
Writing Prospectus, including in respect of timely filing with the Commission, legending and record
keeping.
8. Indemnity and Contribution. (a) The Company agrees to indemnify and hold harmless each
Underwriter, each person, if any, who controls any Underwriter within the meaning of either 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 (“Underwriter Entities”) from and against
any and all losses, claims, damages and liabilities to which they may become subject under the Act,
the Exchange Act or other Federal or state statutory law or regulation, at common law or otherwise
(including, without limitation, any legal or other expenses reasonably incurred in connection with
defending or investigating any such action or claim) (i) caused by any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement or any amendment
thereof, any preliminary prospectus, the Time of Sale Prospectus, any issuer free writing
prospectus as defined in Rule 433(h) under the Securities Act, any Company information that the
Company has filed, or is required to file, pursuant to Rule 433(d) under the Securities Act, or the
Prospectus or any amendment or supplement thereto, or caused by any omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make the statements
therein not misleading, except insofar as such losses, claims, damages or liabilities are caused by
any such untrue statement or
19
omission or alleged untrue statement or omission based upon information relating to any
Underwriter furnished to the Company in writing by such Underwriter through you expressly for use
therein; (ii) that arise out of or are based upon any untrue statement or alleged untrue statement
of a material fact contained in the prospectus wrapper material prepared by or with the consent of
the Company for distribution in foreign jurisdictions in connection with the Directed Share Program
attached to the Registration Statement, any preliminary prospectus, the Time of Sale Prospectus,
the Prospectus or any issuer free writing prospectus, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be stated therein or
necessary to make the statement therein, when considered in conjunction with the Time of Sale
Prospectus, the Prospectus or any applicable preliminary prospectus, not misleading; (iii) caused
by the failure of any Participant to pay for and accept delivery of the securities which
immediately following the Effective Date of the Registration Statement, were subject to a properly
confirmed agreement to purchase; or (iv) related to, arising out of, or in connection with the
Directed Share Program, except that this clause (iv) shall not apply to the extent that such loss,
claim, damage or liability is finally judicially determined to have resulted primarily from the
gross negligence or willful misconduct of the Underwriter Entities.
(b) Each Underwriter agrees, severally and not jointly, to indemnify and hold harmless the
Company, its directors, its officers who sign the Registration Statement and each person, if any,
who controls the Company within the meaning of either Section 15 of the Securities Act or Section
20 of the Exchange Act to the same extent as the foregoing indemnity from the Company to such
Underwriter, but only with reference to information relating to such Underwriter furnished to the
Company in writing by such Underwriter through you expressly for use in the Registration Statement,
any preliminary prospectus, the Time of Sale Prospectus, any issuer free writing prospectus or the
Prospectus or any amendment or supplement thereto.
(c) In case any proceeding (including any governmental investigation) shall be instituted
involving any person in respect of which indemnity may be sought pursuant to Section 8(a) or 8(b),
such person (the “indemnified party”) shall promptly notify the person against whom such indemnity
may be sought (the “indemnifying party”) in writing and the indemnifying party, upon request of the
indemnified party, shall retain counsel reasonably satisfactory to the indemnified party to
represent the indemnified party and any others the indemnifying party may designate in such
proceeding and shall pay the reasonably incurred fees and disbursements of such counsel related to
such proceeding. In any such proceeding, any indemnified party shall have the right to retain its
own counsel, but the reasonably incurred fees and expenses of such counsel shall be at the expense
of such indemnified party unless (i) the indemnifying party and the indemnified party shall have
mutually agreed to the retention of such counsel or (ii) the named parties to any such proceeding
(including any impleaded parties) include both the indemnifying party and the indemnified party and
representation of both parties by the same counsel would be inappropriate due to actual or
potential differing interests between them. It is understood that the indemnifying party shall
not, in respect of the legal expenses of any indemnified party in connection with any proceeding or
related proceedings in the same jurisdiction, be liable for the reasonably incurred fees and
expenses of more than one separate firm (in addition to any local counsel) for all such indemnified
parties and that all such fees and expenses shall be reimbursed as they are incurred. Such firm
shall be designated in writing by the Manager authorized to appoint counsel under this Section set
forth in Schedule I hereto, in
20
the case of parties indemnified pursuant to Section 8(a), and by the Company, in the case of
parties indemnified pursuant to Section 8(b). The indemnifying party 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 party agrees to indemnify the
indemnified party from and against any loss or liability by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses of counsel as
contemplated by the second and third sentences of this paragraph, the indemnifying party agrees
that it 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 such indemnifying party
of the aforesaid request and (ii) such indemnifying party shall not have reimbursed the indemnified
party in accordance with such request prior to the date of such settlement. No indemnifying party
shall, without the prior written consent of the indemnified party, effect any settlement of any
pending or threatened proceeding in respect of which any indemnified party is or could have been a
party and indemnity could have been sought hereunder by such indemnified party, unless such
settlement includes an unconditional release of such indemnified party from all liability on claims
that are the subject matter of such proceeding.
(d) To the extent the indemnification provided for in Section 8(a) or 8(b) is unavailable to
an indemnified party or insufficient in respect of any losses, claims, damages or liabilities
referred to therein, then each indemnifying party under such paragraph, in lieu of indemnifying
such indemnified party thereunder, shall contribute to the amount paid or payable by such
indemnified party 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 hand from the offering of the Shares or (ii) if the allocation provided
by clause 8(d)(i) above is not permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause 8(d)(i) above but also the relative
fault of the Company on the one hand and of the Underwriters on the other hand 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 hand in connection with the offering of the Shares
shall be deemed to be in the same respective proportions as the net proceeds from the offering of
the Shares (before deducting expenses) received by the Company and the total underwriting discounts
and commissions received by the Underwriters bear to the aggregate initial public offering price of
the Shares set forth in the Prospectus. The relative fault of the Company on the one hand and the
Underwriters on the other hand 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. The Underwriters’ respective obligations to contribute pursuant to
this Section 8 are several in proportion to the respective number of Shares they have purchased
hereunder, and not joint.
(e) The Company and the Underwriters agree that it would not be just or equitable if
contribution pursuant to this Section 8 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
21
that does not take account of the equitable considerations referred to in Section 8(d). The
amount paid or payable by an indemnified party as a result of the losses, claims, damages and
liabilities referred to in Section 8(d) shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 8, no Underwriter shall be required to contribute any amount in excess
of the amount by which the total price at which the Shares underwritten by it and distributed to
the public were offered to the public 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 remedies provided for in this Section 8 are not
exclusive and shall not limit any rights or remedies which may otherwise be available to any
indemnified party at law or in equity.
(f) The indemnity and contribution provisions contained in this Section 8 and the
representations, warranties and other statements of the Company contained in this Agreement shall
remain operative and in full force and effect regardless of (i) any termination of this Agreement,
(ii) any investigation made by or on behalf of any Underwriter, any person controlling any
Underwriter or any affiliate of any Underwriter or by or on behalf of the Company, its officers or
directors or any person controlling the Company and (iii) acceptance of and payment for any of the
Shares.
Notwithstanding anything contained herein to the contrary, if indemnity may be sought pursuant
to Sections 8(b)(ii) through 8(b)(iv) hereof in respect of such action or proceeding, then in
addition to such separate firm for the indemnified parties, the indemnifying party shall be liable
for the reasonable fees and expenses of not more than one separate firm (in addition to any local
counsel) for the Underwriters, the directors, officers, employees and agents of any Underwriter,
and all persons, if any, who control any Underwriter within the meaning of either the Act or the
Exchange Act for the defense of any losses, claims, damages and liabilities arising out of the
Directed Share Program.
9. Termination. The Underwriters may terminate this Agreement by notice given by you to the
Company, if after the execution and delivery of this Agreement and prior to the Closing Date (i)
trading generally shall have been suspended or materially limited on, or by, as the case may be,
any of the New York Stock Exchange or the American Stock Exchange or NASDAQ, (ii) trading of any
securities of the Company shall have been suspended on any exchange or in any over-the-counter
market, (iii) a material disruption in securities settlement, payment or clearance services in the
United States shall have occurred, (iv) any moratorium on commercial banking activities shall have
been declared by Federal or New York State authorities or (v) there shall have occurred any
outbreak or escalation of hostilities, or any change in financial markets or any calamity or crisis
that, in your judgment, is material and adverse and which, singly or together with any other event
specified in this clause (v), makes it, in your judgment, impracticable or inadvisable to proceed
with the offer, sale or delivery of the Shares on the terms and in the manner contemplated in the
Time of Sale Prospectus or the Prospectus.
22
10. Effectiveness; Defaulting Underwriters. This Agreement shall become effective upon the
execution and delivery hereof by the parties hereto.
If, on the Closing Date or an Option Closing Date, as the case may be, any one or more of the
Underwriters shall fail or refuse to purchase Shares that it has or they have agreed to purchase
hereunder on such date, and the aggregate number of Shares which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase is not more than one-tenth of the aggregate
number of the Shares to be purchased on such date, the other Underwriters shall be obligated
severally in the proportions that the number of Firm Shares set forth opposite their respective
names in Schedule II bears to the aggregate number of Firm Shares set forth opposite the names of
all such non-defaulting Underwriters, or in such other proportions as you may specify, to purchase
the Shares which such defaulting Underwriter or Underwriters agreed but failed or refused to
purchase on such date; provided that in no event shall the number of Shares that any Underwriter
has agreed to purchase pursuant to this Agreement be increased pursuant to this Section 10 by an
amount in excess of one-ninth of such number of Shares without the written consent of such
Underwriter. If, on the Closing Date, any Underwriter or Underwriters shall fail or refuse to
purchase Firm Shares and the aggregate number of Firm Shares with respect to which such default
occurs is more than one-tenth of the aggregate number of Firm Shares to be purchased on such date,
and arrangements satisfactory to you and the Company for the purchase of such Firm Shares are not
made within 36 hours after such default, this Agreement shall terminate without liability on the
part of any non-defaulting Underwriter or the Company. In any such case either you or the Company
shall have the right to postpone the Closing Date, but in no event for longer than seven days, in
order that the required changes, if any, in the Registration Statement, in the Time of Sale
Prospectus, in the Prospectus or in any other documents or arrangements may be effected. If, on an
Option Closing Date, any Underwriter or Underwriters shall fail or refuse to purchase Additional
Shares and the aggregate number of Additional Shares with respect to which such default occurs is
more than one-tenth of the aggregate number of Additional Shares to be purchased on such Option
Closing Date, the non-defaulting Underwriters shall have the option to (i) terminate their
obligation hereunder to purchase the Additional Shares to be sold on such Option Closing Date or
(ii) purchase not less than the number of Additional Shares that such non-defaulting Underwriters
would have been obligated to purchase in the absence of such default. Any action taken under this
paragraph shall not relieve any defaulting Underwriter from liability in respect of any default of
such Underwriter under this Agreement.
If this Agreement shall be terminated by the Underwriters, or any of them, because of any
failure or refusal on the part of the Company to comply with the terms or to fulfill any of the
conditions of this Agreement, or if for any reason the Company shall be unable to perform its
obligations under this Agreement, the Company will reimburse the Underwriters or such Underwriters
as have so terminated this Agreement with respect to themselves, severally, for all out-of-pocket
expenses (including the fees and disbursements of their counsel) reasonably incurred by such
Underwriters in connection with this Agreement or the offering contemplated hereunder.
11. Entire Agreement. (a) This Agreement, together with any contemporaneous written
agreements and any prior written agreements (to the extent not superseded by this Agreement)
23
that relate to the offering of the Shares, represents the entire agreement between the Company
and the Underwriters with respect to the preparation of any preliminary prospectus, the Time of
Sale Prospectus, the Prospectus, the conduct of the offering, and the purchase and sale of the
Shares.
(b) The Company acknowledges that in connection with the offering of the Shares: (i) the
Underwriters have acted at arms length, are not agents of, and owe no fiduciary duties to, the
Company or any other person, (ii) the Underwriters owe the Company only those duties and
obligations set forth in this Agreement and prior written agreements (to the extent not superseded
by this Agreement), if any, and (iii) the Underwriters may have interests that differ from those of
the Company. The Company waives to the full extent permitted by applicable law any claims it may
have against the Underwriters arising from an alleged breach of fiduciary duty in connection with
the offering of the Shares.
12. Counterparts. This Agreement may be signed in two or more counterparts, each of which
shall be an original, with the same effect as if the signatures thereto and hereto were upon the
same instrument.
13. Applicable Law. This Agreement shall be governed by and construed in accordance with the
internal laws of the State of New York.
14. Headings. The headings of the sections of this Agreement have been inserted for
convenience of reference only and shall not be deemed a part of this Agreement.
15. Notices. All communications hereunder shall be in writing and effective only upon receipt
and if to the Underwriters shall be delivered, mailed or sent to you at the address set forth in
Schedule I hereto; and if to the Company shall be delivered, mailed or sent to the address set
forth in Schedule I hereto.
24
| Very truly yours, CITIZENS REPUBLIC BANCORP, INC. |
||||
| By: | /s/ Xxxxxxx X. Xxxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxxx | |||
| Title: | Executive Vice President & Chief Financial Officer |
|||
| Accepted as of the date hereof | ||||
| Xxxxxx Xxxxxxx & Co. Incorporated | ||||
| Citigroup Global Markets Inc. | ||||
| Acting severally on behalf of themselves | ||||
| and the several Underwriters named | ||||
| in Schedule II hereto. | ||||
By:
|
Xxxxxx Xxxxxxx & Co. Incorporated | |||
By:
|
/s/ Xxxx Xxxxx | |||
| Name: Xxxx Xxxxx | ||||
| Title: Managing Director | ||||
By:
|
Citigroup Global Markets Inc. | |||
By:
|
/s/ Xxxxxx Xxxxx | |||
| Name: Xxxxxx Xxxxx | ||||
| Title: Managing Director | ||||
UA –
Preferred
SCHEDULE I
Managers: |
Xxxxxx Xxxxxxx & Co. Incorporated | |
| Citigroup Global Markets Inc. | ||
Manager authorized to release |
Xxxxxx Xxxxxxx & Co. Incorporated | |
lock-up under Section 6: |
Citigroup Global Markets Inc. | |
Manager authorized to appoint |
Xxxxxx Xxxxxxx & Co. Incorporated | |
counsel under Section 8(c): |
Citigroup Global Markets Inc. | |
Registration Statement File No.: |
333-137490 | |
Time of Sale Prospectus |
1. Prospectus dated September 21, 2006 | |
| 2. Preliminary prospectus supplement dated June 5, 2008 relating to the Shares | ||
| 3. Final Term Sheet dated June 5, 2008 relating to the Shares | ||
Lock-up Restricted Period: |
90 days | |
Title of Shares to be purchased: |
Contingent Convertible Perpetual Non-Cumulative Preferred Stock, Series A, no par value | |
Number of Firm Shares: |
2,407,644 shares | |
Number of Additional Shares |
361,147 shares | |
Purchase Price: |
$47.50 a share | |
Initial Public Offering Price |
$50.00 a share | |
Selling Concession: |
$1.50 a share | |
Closing Date and Time: |
June 11, 2008 9:30 a.m. | |
Closing Location: |
Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx LLP | |
| Xxx Xxxxxxx Xxxxx | ||
| Xxx Xxxx, Xxx Xxxx 00000 | ||
Address for Notices to Underwriters: |
Xxxxxx Xxxxxxx & Co. Incorporated |
I-1
| Citigroup Global Markets Inc. | ||
| c/o Morgan Xxxxxxx & Co. Incorporated | ||
| 0000 Xxxxxxxx | ||
| Xxx Xxxx, XX 00000 | ||
Address for Notices to the Company: |
Citizens Republic Bancorp, Inc. | |
| 000 X. Xxxxxxx Xxxxxx | ||
| Xxxxx, Xxxxxxxx 00000 |
I-2
SCHEDULE II
| Number of Firm Shares To | ||||
| Underwriter | Be Purchased | |||
Xxxxxx Xxxxxxx & Co. Incorporated |
1,023,249 | |||
Citigroup Global Markets Inc. |
1,023,249 | |||
Credit Suisse Securities (USA) LLC |
120,382 | |||
Xxxxx Xxxxxxxx & Xxxxx, Inc. |
120,382 | |||
Xxxxxxxxxxx & Co., Inc. |
60,191 | |||
Sandler X’Xxxxx & Partners, L.P. |
60,191 | |||
Total |
2,407,644 | |||
II-1
