Trustmark Corporation 5,405,406 Shares Common Stock (no par value per Share) Underwriting Agreement December 1, 2009
Exhibit 1.1
Trustmark
Corporation
5,405,406 Shares
Common Stock
(no par value per Share)
(no par value per Share)
December 1, 2009
December 1, 2009
UBS Securities LLC
X.X. Xxxxxx Securities Inc.
Xxxxx, Xxxxxxxx & Xxxxx, Inc.
Xxxxxxx X’Xxxxx & Partners, L.P.
X.X. Xxxxxx Securities Inc.
Xxxxx, Xxxxxxxx & Xxxxx, Inc.
Xxxxxxx X’Xxxxx & Partners, L.P.
c/o UBS Securities LLC
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
c/o X.X. Xxxxxx Securities Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Ladies and Gentlemen:
Trustmark Corporation, a Mississippi business corporation (the “Company”), proposes to
issue and sell to the underwriters named in Schedule A annexed hereto (the
“Underwriters”), for whom you are acting as representative, an aggregate of 5,405,406 shares (the
“Firm Shares”) of common stock, with no par value per share (the “Common Stock”),
of the Company. In addition, solely for the purpose of covering over-allotments, the Company
proposes to grant to the Underwriters the option to purchase from the Company up to an additional
810,810 shares of Common Stock (the “Additional Shares”) The Firm Shares and the Additional
Shares are hereinafter collectively sometimes referred to as the “Shares.” The Shares are
described in the Prospectus which is referred to below.
The Company has prepared and filed, in accordance with the provisions of the Securities Act of
1933, as amended, and the rules and regulations thereunder (collectively, the “Act”), with
the Securities and Exchange Commission (the “Commission”) a registration statement on Form
S-3 (File No. 333-163403) under the Act (the “registration statement”), including a
prospectus, which registration statement incorporates by reference documents which the Company has
filed, or will file, in accordance with the provisions of the Securities Exchange Act of 1934, as
amended, and the rules and regulations thereunder (collectively, the “Exchange Act”). Such
registration statement has become effective under the Act.
Except where the context otherwise requires, “Registration Statement,” as used herein,
means the registration statement, as amended at the time of such registration statement’s
effectiveness for purposes of Section 11 of the Act, as such section applies to the respective
Underwriters (the “Effective Time”), including (i) all documents filed as a part thereof or
incorporated or deemed to be incorporated by reference therein, (ii) any information contained or
incorporated by reference in a prospectus filed with the Commission pursuant to Rule 424(b) under
the Act, to the extent such information is deemed, pursuant to Rule 430A, Rule 430B or Rule 430C
under the Act, to be part of the registration statement at the Effective Time, and (iii) any
registration statement filed to register the offer and sale of Shares pursuant to Rule 462(b)
under the Act.
The Company has furnished to you, for use by the Underwriters and by dealers in connection
with the offering of the Shares, copies of one or more preliminary prospectus supplements, and the
documents incorporated by reference therein, relating to the Shares. Except where the context
otherwise requires, “Pre-Pricing Prospectus,” as used herein, means each such preliminary
prospectus supplement, in the form so furnished, including any basic prospectus (whether or not in
preliminary form) furnished to you by the Company and attached to or used with such preliminary
prospectus supplement. Except where the context otherwise requires, “Basic Prospectus,” as
used herein, means any such basic prospectus and any basic prospectus furnished to you by the
Company and attached to or used with the Prospectus Supplement (as defined below).
Except where the context otherwise requires, “Prospectus Supplement,” as used herein,
means the final prospectus supplement, relating to the Shares, filed by the Company with the
Commission pursuant to Rule 424(b) under the Act on or before the second business day after the
date hereof (or such earlier time as may be required under the Act), in the form furnished by the
Company to you for use by the Underwriters and by dealers in connection with the offering of the
Shares.
Except where the context otherwise requires, “Prospectus,” as used herein, means the
Prospectus Supplement together with the Basic Prospectus attached to or used with the Prospectus
Supplement.
“Permitted Free Writing Prospectuses,” as used herein, means the documents listed on
Schedule B attached hereto and each “road show” (as defined in Rule 433 under the Act), if
any, related to the offering of the Shares contemplated hereby that is a “written communication”
(as defined in Rule 405 under the Act). The Underwriters have not offered or sold and will not
offer or sell, without the Company’s consent, any Shares by means of any “free writing prospectus”
(as defined in Rule 405 under the Act) that is required to be filed by the Underwriters with the
Commission pursuant to Rule 433 under the Act, other than a Permitted Free Writing Prospectus.
“Covered Free Writing Prospectuses,” as used herein, means (i) each “issuer free
writing prospectus” (as defined in Rule 433(h)(1) under the Act), if any, relating to the Shares,
which is not a Permitted Free Writing Prospectus and (ii) each Permitted Free Writing Prospectus.
“Disclosure Package,” as used herein, means any Pre-Pricing Prospectus or Basic
Prospectus, in either case together with any combination of one or more of the Permitted Free
Writing Prospectuses, if any.
Any reference herein to the registration statement, the Registration Statement, any Basic
Prospectus, any Pre-Pricing Prospectus, the Prospectus Supplement, the Prospectus or any Permitted
Free Writing Prospectus shall be deemed to refer to and include the documents, if any, incorporated
by reference, or deemed to be incorporated by reference, therein (the “Incorporated
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Documents”), including, unless the context otherwise requires, the documents, if any, filed
as exhibits to such Incorporated Documents. Any reference herein to the terms “amend,”
“amendment” or “supplement” with respect to the Registration Statement, any Basic
Prospectus, any Pre-Pricing Prospectus, the Prospectus Supplement, the Prospectus or any Permitted
Free Writing Prospectus shall be deemed to refer to and include the filing of any document under
the Exchange Act on or after the initial effective date of the Registration Statement, or the date
of such Basic Prospectus, such Pre-Pricing Prospectus, the Prospectus Supplement, the Prospectus or
such Permitted Free Writing Prospectus, as the case may be, and deemed to be incorporated therein
by reference.
As used in this Agreement, “business day” shall mean a day on which the New York Stock
Exchange (the “NYSE”) is open for trading. The terms “herein,” “hereof,” “hereto,”
“hereinafter” and similar terms, as used in this Agreement, shall in each case refer to this
Agreement as a whole and not to any particular section, paragraph, sentence or other subdivision of
this Agreement. The term “or,” as used herein, is not exclusive.
The Company and the Underwriters agree as follows:
1. Sale and Purchase. Upon the basis of the representations and warranties and
subject to the terms and conditions herein set forth, the Company agrees to issue and sell to the
respective Underwriters and each of the Underwriters, severally and not jointly, agrees to purchase
from the Company the number of Firm Shares set forth opposite the name of such Underwriter in
Schedule A attached hereto, subject to adjustment in accordance with Section 8 hereof, in
each case at a purchase price of $17.6675 per Share. The Company is advised by you that the
Underwriters intend (i) to make a public offering of their respective portions of the Firm Shares
as soon after the effectiveness of this Agreement as in your judgment is advisable and (ii)
initially to offer the Firm Shares upon the terms set forth in the Prospectus. You may from time
to time increase or decrease the public offering price after the initial public offering to such
extent as you may determine.
In addition, the Company hereby grants to the several Underwriters the option (the
“Over-Allotment Option”) to purchase, and upon the basis of the representations and
warranties and subject to the terms and conditions herein set forth, the Underwriters shall have
the right to purchase, severally and not jointly, from the Company, ratably in accordance with the
number of Firm Shares to be purchased by each of them, all or a portion of the Additional Shares as
may be necessary to cover over-allotments made in connection with the offering of the Firm Shares,
at the same purchase price per share to be paid by the Underwriters to the Company for the Firm
Shares. The Over-Allotment Option may be exercised by UBS Securities LLC (“UBS”) on behalf
of the several Underwriters at any time and from time to time on or before the thirtieth day
following the date of the Prospectus Supplement, by written notice to the Company. Such notice
shall set forth the aggregate number of Additional Shares as to which the Over-Allotment Option is
being exercised and the date and time when the Additional Shares are to be delivered (any such date
and time being herein referred to as an “additional time of purchase”); provided,
however, that no additional time of purchase shall be earlier than the “time of purchase”
(as defined below) nor earlier than the second business day after the date on which the
Over-Allotment Option shall have been exercised nor later than the tenth business day after the
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date on which the Over-Allotment Option shall have been exercised. The number of Additional Shares
to be sold to each Underwriter shall be the number which bears the same proportion to the aggregate
number of Additional Shares being purchased as the number of Firm Shares set forth opposite the
name of such Underwriter on Schedule A hereto bears to the total number of Firm Shares
(subject, in each case, to such adjustment as UBS may determine to eliminate fractional shares),
subject to adjustment in accordance with Section 8 hereof.
2. Payment and Delivery. Payment of the purchase price for the Firm Shares shall be
made to the Company by Federal Funds wire transfer against delivery of the certificates for the
Firm Shares to you through the facilities of The Depository Trust Company (“DTC”) for the
respective accounts of the Underwriters. Such payment and delivery shall be made at 10:00 A.M.,
New York City time, on December 7, 2009 (unless another time shall be agreed to by you and the
Company or unless postponed in accordance with the provisions of Section 8 hereof). The time at
which such payment and delivery are to be made is hereinafter sometimes called the “time of
purchase.” Electronic transfer of the Firm Shares shall be made to you at the time of purchase
in such names and in such denominations as you shall specify.
Payment of the purchase price for the Additional Shares shall be made at the additional time
of purchase in the same manner and at the same office and time of day as the payment for the Firm
Shares. Electronic transfer of the Additional Shares shall be made to you at the additional time
of purchase in such names and in such denominations as you shall specify.
Deliveries of the documents described in Section 6 hereof with respect to the purchase of the
Shares shall be made at the offices of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP at 000 Xxxxxxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, at 9:00 A.M., New York City time, on the date of the closing of the purchase
of the Firm Shares or the Additional Shares, as the case may be.
3. Representations and Warranties of the Company. The Company represents and warrants
to and agrees with each of the Underwriters that:
(a) the Registration Statement has heretofore become effective under the Act or, with
respect to any registration statement to be filed to register the offer and sale of Shares
pursuant to Rule 462(b) under the Act, will be filed with the Commission and become
effective under the Act no later than 10:00 P.M., New York City time, on the date of
determination of the public offering price for the Shares; no stop order of the Commission
preventing or suspending the use of any Basic Prospectus, any Pre-Pricing Prospectus, the
Prospectus Supplement, the Prospectus or any Permitted Free Writing Prospectus, or the
effectiveness of the Registration Statement, has been issued, and no proceedings for such
purpose have been instituted or, to the Company’s knowledge, are contemplated by the
Commission;
(b) the Registration Statement complied when it became effective, complies as of the
date hereof and, as amended or supplemented, at the time of purchase, each additional time
of purchase, if any, and at all times during which a prospectus is required by the Act to be
delivered (whether physically or through compliance with Rule 172 under the Act or any
similar rule) in connection with any sale of Shares, will comply, in
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all material respects, with the requirements of the Act; the conditions to the use of
Form S-3 in connection with the offering and sale of the Shares as contemplated hereby have
been satisfied; the Registration Statement constitutes an “automatic shelf registration
statement” (as defined in Rule 405 under the Act); the Company has not received, from the
Commission, a notice, pursuant to Rule 401(g)(2), of objection to the use of the automatic
shelf registration statement form; as of the determination date applicable to the
Registration Statement (and any amendment thereof) and the offering contemplated hereby, and
as of each time, if any, an “offer by or on behalf of” (within the meaning of Rule 163 under
the Act) the Company was made prior to the initial filing of the Registration Statement, the
Company is and was a “well-known seasoned issuer” as defined in Rule 405 under the Act; the
Registration Statement meets, and the offering and sale of the Shares as contemplated hereby
complies with, the requirements of Rule 415 under the Act (including, without limitation,
Rule 415(a)(5) under the Act); the Registration Statement did not, as of the Effective Time,
contain an untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not misleading; each
Pre-Pricing Prospectus complied, at the time it was filed with the Commission, and complies
as of the date hereof, in all material respects with the requirements of the Act; at no time
during the period that begins on the earlier of the date of such Pre-Pricing Prospectus and
the date such Pre-Pricing Prospectus was filed with the Commission and ends at the time of
purchase did or will any Pre-Pricing Prospectus, as then amended or supplemented, include an
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, and at no time during such period did or will any Pre-Pricing Prospectus, as
then amended or supplemented, together with any combination of one or more of the then
issued Permitted Free Writing Prospectuses, if any, include an 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; each
Basic Prospectus complied or will comply, as of its date and the date it was or will be
filed with the Commission, complies as of the date hereof (if filed with the Commission on
or prior to the date hereof) and, at the time of purchase, each additional time of purchase,
if any, and at all times during which a prospectus is required by the Act to be delivered
(whether physically or through compliance with Rule 172 under the Act or any similar rule)
in connection with any sale of Shares, will comply, in each instance in all material
respects, with the requirements of the Act; at no time during the period that begins on the
earlier of the date of such Basic Prospectus and the date such Basic Prospectus was filed
with the Commission and ends at the time of purchase did or will any Basic Prospectus, as
then amended or supplemented, include an 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, and at no time during such period
did or will any Basic Prospectus, as then amended or supplemented, together with any
combination of one or more of the then issued Permitted Free Writing Prospectuses, if any,
include an 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; each of the Prospectus Supplement and the Prospectus will comply,
as of the date that it is filed with the
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Commission, the date of the Prospectus Supplement, the time of purchase, each
additional time of purchase, if any, and at all times during which a prospectus is required
by the Act to be delivered (whether physically or through compliance with Rule 172 under the
Act or any similar rule) in connection with any sale of Shares, in all material respects,
with the requirements of the Act (in the case of the Prospectus, including, without
limitation, Section 10(a) of the Act); at no time during the period that begins on the
earlier of the date of the Prospectus Supplement and the date the Prospectus Supplement is
filed with the Commission and ends at the later of the time of purchase, the latest
additional time of purchase, if any, and the end of the period during which a prospectus is
required by the Act to be delivered (whether physically or through compliance with Rule 172
under the Act or any similar rule) in connection with any sale of Shares did or will any
Prospectus Supplement or the Prospectus, as then amended or supplemented, include an 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; at no time during the period that begins on the date of such Permitted Free
Writing Prospectus and ends at the time of purchase did or will any Permitted Free Writing
Prospectus include an 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, however, that the Company
makes no representation or warranty in this Section 3(b) with respect to any statement
contained in the Registration Statement, any Pre-Pricing Prospectus, the Prospectus or any
Permitted Free Writing Prospectus in reliance upon and in conformity with information
concerning an Underwriter and furnished in writing by or on behalf of such Underwriter
through you to the Company expressly for use in the Registration Statement, such Pre-Pricing
Prospectus, the Prospectus or such Permitted Free Writing Prospectus; each Incorporated
Document, at the time such document was filed, or will be filed, with the Commission or at
the time such document became or becomes effective, as applicable, complied or will comply,
in all material respects, with the requirements of the Exchange Act and did not or will not,
as applicable, include an 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;
(c) prior to the execution of this Agreement, the Company has not, directly or
indirectly, offered or sold any Shares by means of any “prospectus” (within the meaning of
the Act) or used any “prospectus” (within the meaning of the Act) in connection with the
offer or sale of the Shares, in each case other than the Pre-Pricing Prospectuses and the
Permitted Free Writing Prospectuses, if any; the Company has not, directly or indirectly,
prepared, used or referred to any Permitted Free Writing Prospectus except in compliance
with Rule 163 or with Rules 164 and 433 under the Act; assuming that such Permitted Free
Writing Prospectus is so sent or given after the Registration Statement was filed with the
Commission (and after such Permitted Free Writing Prospectus was, if required pursuant to
Rule 433(d) under the Act, filed with the Commission), the sending or giving, by any
Underwriter, of any Permitted Free Writing Prospectus will satisfy the provisions of Rule
164 and Rule 433 (without reliance on subsections (b), (c) and (d) of Rule 164); the
conditions set forth in one or more of subclauses (i) through (iv),
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inclusive, of Rule 433(b)(1) under the Act are satisfied, and the registration
statement relating to the offering of the Shares contemplated hereby, as initially filed
with the Commission, includes a prospectus that, other than by reason of Rule 433 or Rule
431 under the Act, satisfies the requirements of Section 10 of the Act; neither the Company
nor the Underwriters are disqualified, by reason of subsection (f) or (g) of Rule 164 under
the Act, from using, in connection with the offer and sale of the Shares, “free writing
prospectuses” (as defined in Rule 405 under the Act) pursuant to Rules 164 and 433 under the
Act; the Company is not an “ineligible issuer” (as defined in Rule 405 under the Act) as of
the eligibility determination date for purposes of Rules 164 and 433 under the Act with
respect to the offering of the Shares contemplated by the Registration Statement, without
taking into account any determination by the Commission pursuant to Rule 405 under the Act
that it is not necessary under the circumstances that the Company be considered an
“ineligible issuer”; the parties hereto agree and understand that the content of any and all
“road shows” (as defined in Rule 433 under the Act) related to the offering of the Shares
contemplated hereby is solely the property of the Company;
(d) in accordance with Rule 5110(b)(7)(C)(i) of the Financial Industry Regulatory
Authority, Inc. (“FINRA”), the Shares have been registered with the Commission on
Form S-3 under the Act pursuant to the standards for such Form S-3 in effect prior to
October 21, 1992;
(e) as of the date of this Agreement, the Company has an authorized and outstanding
capitalization as set forth in the sections of the Registration Statement, the Pre-Pricing
Prospectuses and the Prospectus entitled “Capitalization” “and “Description of Capital
Stock” (and any similar sections or information, if any, contained in any Permitted Free
Writing Prospectus), and, as of the time of purchase and any additional time of purchase, as
the case may be, the Company shall have an authorized and outstanding capitalization as set
forth in the sections of the Registration Statement, the Pre-Pricing Prospectuses and the
Prospectus entitled “Capitalization” “and “Description of Capital Stock” (and any similar
sections or information, if any, contained in any Permitted Free Writing Prospectus)
(subject, in each case, to the issuance of shares of Common Stock upon exercise of stock
options and warrants disclosed as outstanding in the Registration Statement (excluding the
exhibits thereto), each Pre-Pricing Prospectus and the Prospectus and the grant of options
under existing stock option plans described in the Registration Statement (excluding the
exhibits thereto), each Pre-Pricing Prospectus and the Prospectus); all of the issued and
outstanding shares of capital stock, including the Common Stock, of the Company have been
duly authorized and validly issued and are fully paid and non-assessable, have been issued
in compliance with all applicable securities laws and were not issued in violation of any
preemptive right, resale right, right of first refusal or similar right; the Shares are duly
listed, and admitted and authorized for trading, subject to official notice of issuance, on
The NASDAQ Global Market (the “NASDAQ”);
(f) the Company has been duly incorporated and is validly existing as a corporation in
good standing under the laws of the State of Mississippi, with full corporate power and
authority to own, lease and operate its properties and conduct its
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business as described in the Registration Statement, the Pre-Pricing Prospectuses, the
Prospectus and the Permitted Free Writing Prospectuses, if any, to execute and deliver this
Agreement and to issue, sell and deliver the Shares as contemplated herein;
(g) the Company is duly qualified to do business as a foreign corporation and is in
good standing in each jurisdiction where the ownership or leasing of its properties or the
conduct of its business requires such qualification, except where the failure to be so
qualified and in good standing would not, individually or in the aggregate, either (i) have
a material adverse effect on the business, properties, financial condition, results of
operations or prospects of the Company and the Subsidiaries (as defined below) taken as a
whole, (ii) prevent or materially interfere with consummation of the transactions
contemplated hereby or (iii) result in the delisting of shares of Common Stock from the
NASDAQ (the occurrence of any such effect or any such prevention or interference or any such
result described in the foregoing clauses (i), (ii) and (iii) being herein referred to as a
“Material Adverse Effect”)”;
(h) The Company is a bank holding company duly registered under the Bank Holding
Company Act of 1956, as amended (the “BHC”); and each of the Company and its
Subsidiaries are in substantial compliance with, and conduct their respective businesses in
substantial conformity with, all applicable laws and governmental regulations governing bank
holding companies, banks and subsidiaries of bank holding companies, respectively, including
all laws administered by and regulations applicable to it of the Board of Governors of the
Federal Reserve System, the Federal Deposit Insurance Corporation and the Office of the
Comptroller of the Currency (each a “Banking Regulator”) and of any other federal or
state agency or authority with jurisdiction over it except where failure to so comply would
not result in a Material Adverse Effect, except failures to comply or be in conformity with
such laws and regulations that could not reasonably be expected to result in a Material
Adverse Effect;
(i) Trustmark National Bank (the “Bank”) has been duly organized and is validly
existing as a national banking association under the laws of the United States; the Bank is
an insured bank under the applicable provisions of the Federal Deposit Act, as amended, and
no proceeding for the termination or revocation of such insurance is pending or, to the
knowledge of the Company, threatened against the Bank; the Bank has no subsidiaries that
are depositary institutions with deposits insured under the provisions of the Federal
Deposit Insurance Act, as amended; the Company owns directly or indirectly all of the
outstanding capital stock of each Subsidiary, all such Subsidiaries being set forth on
Schedule C hereto) subject to no security interest, other encumbrance or adverse claims;
other than the capital stock of the Subsidiaries, the Company does not own, directly or
indirectly, any material shares of stock or any other material equity interests or material
long-term debt securities of any corporation, firm, partnership, joint venture, association
or other entity; complete and correct copies of the charters and the bylaws (or other
organizational documents) of the Company and each Subsidiary and all amendments thereto have
been delivered to you, and no changes therein will be made on or after the date hereof
through and including the time of purchase or, if later, any additional time of purchase;
each Subsidiary has been duly constituted and is validly
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existing as a corporation, limited liability company, limited partnership, national
banking association or banking trust, as applicable, in good standing under the laws of the
jurisdiction of its incorporation or formation, as applicable, with full corporate power or
other power and authority to own, lease and operate its properties and to conduct its
business as described in the Registration Statement, the Pre-Pricing Prospectuses, the
Prospectus and the Permitted Free Writing Prospectuses, if any; each Subsidiary is duly
qualified to do business as a foreign corporation and is in good standing in each
jurisdiction where the ownership or leasing of its properties or the conduct of its business
requires such qualification, except where the failure to be so qualified and in good
standing would not, individually or in the aggregate, have a Material Adverse Effect; all of
the outstanding shares of capital stock of each of the Subsidiaries have been duly
authorized and validly issued, are fully paid and non-assessable, have been issued in
compliance with all applicable securities laws, were not issued in violation of any
preemptive right, resale right, right of first refusal or similar right and are owned by the
Company subject to no security interest, other encumbrance or adverse claims; no options,
warrants or other rights to purchase, agreements or other obligations to issue or other
rights to convert any obligation into shares of capital stock or ownership interests in the
Subsidiaries are outstanding; the Company has no “significant subsidiary,” as that term is
defined in Rule 1-02(w) of Regulation S-X under the Act, other than the Bank;
(j) the Shares have been duly and validly authorized and, when issued and delivered
against payment therefor as provided herein, will be duly and validly issued, fully paid and
non-assessable and free of statutory and contractual preemptive rights, resale rights,
rights of first refusal and similar rights; the Shares, when issued and delivered against
payment therefor as provided herein, will be free of any restriction upon the voting or
transfer thereof pursuant to the Mississippi Business Corporation Act or the Company’s
articles of incorporation or bylaws or any agreement or other instrument to which the
Company is a party;
(k) the capital stock of the Company, including the Shares, conforms in all material
respects to each description thereof, if any, contained or incorporated by reference in the
Registration Statement, the Pre-Pricing Prospectuses, the Prospectus and the Permitted Free
Writing Prospectuses, if any; and the certificates for the Shares are in due and proper
form;
(l) this Agreement has been duly authorized, executed and delivered by the Company;
(m) neither the Company nor any of the Subsidiaries is in breach or violation of or in
default under (nor has any event occurred which, with notice, lapse of time or both, would
result in any breach or violation of, constitute a default under or give the holder of any
indebtedness (or a person acting on such holder’s behalf) the right to require the
repurchase, redemption or repayment of all or a part of such indebtedness under) (A) its
charter or bylaws (or other organizational documents), or (B) any indenture, mortgage, deed
of trust, bank loan or credit agreement or other evidence of indebtedness, or any license,
lease, contract or other agreement or instrument to which it
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is a party or by which it or any of its properties may be bound or affected, or (C) any
federal, state, local or foreign law, regulation or rule, or (D) any rule or regulation of
any self-regulatory organization or other non-governmental regulatory authority (including,
without limitation, the rules and regulations of the NASDAQ), or (E) any decree, judgment or
order applicable to it or any of its properties;
(n) the execution, delivery and performance of this Agreement, the issuance and sale of
the Shares and the consummation of the transactions contemplated hereby will not conflict
with, result in any breach or violation of or constitute a default under (nor constitute any
event which, with notice, lapse of time or both, would result in any breach or violation of,
constitute a default under or give the holder of any indebtedness (or a person acting on
such holder’s behalf) the right to require the repurchase, redemption or repayment of all or
a part of such indebtedness under) (or result in the creation or imposition of a lien,
charge or encumbrance on any property or assets of the Company or any Subsidiary pursuant
to) (A) the charter or bylaws (or other organizational documents) of the Company or any of
the Subsidiaries, or (B) any indenture, mortgage, deed of trust, bank loan or credit
agreement or other evidence of indebtedness, or any license, lease, contract or other
agreement or instrument to which the Company or any of the Subsidiaries is a party or by
which any of them or any of their respective properties may be bound or affected, or (C) any
federal, state, local or foreign law, regulation or rule, or (D) any rule or regulation of
any self-regulatory organization or other non-governmental regulatory authority (including,
without limitation, the rules and regulations of the NASDAQ), or (E) any decree, judgment or
order applicable to the Company or any of the Subsidiaries or any of their respective
properties except, in the cases of subsections (B), (C), (D) and (E) of this section, any
such breaches, violations or defaults that would not, singly or in the aggregate, have a
Material Adverse Effect;
(o) no approval, authorization, consent or order of or filing with any federal, state,
local or foreign governmental or regulatory commission, board, body, authority or agency, or
of or with any self-regulatory organization or other non-governmental regulatory authority
(including, without limitation, the NASDAQ), or approval of the shareholders of the Company,
is required in connection with the issuance and sale of the Shares or the consummation by
the Company of the transactions contemplated hereby, other than (i) registration of the
Shares under the Act, which has been effected (or, with respect to any registration
statement to be filed hereunder pursuant to Rule 462(b) under the Act, will be effected in
accordance herewith), (ii) any necessary qualification under the securities or blue sky laws
of the various jurisdictions in which the Shares are being offered by the Underwriters or
(iii) under the FINRA Rules;
(p) except as described in the Registration Statement (excluding the exhibits thereto),
each Pre-Pricing Prospectus and the Prospectus, (i) no person has the right, contractual or
otherwise, to cause the Company to issue or sell to it any shares of Common Stock or shares
of any other capital stock or other equity interests of the Company, (ii) no person has any
preemptive rights, resale rights, rights of first refusal or other rights to purchase any
shares of Common Stock or shares of any other capital stock of or other equity interests in
the Company and (iii) no person has the right to act as an
- 10 -
underwriter or as a financial advisor to the Company in connection with the offer and
sale of the Shares; no person has the right, contractual or otherwise, to cause the Company
to register under the Act any shares of Common Stock or shares of any other capital stock of
or other equity interests in the Company, or to include any such shares or interests in the
Registration Statement or the offering contemplated thereby;
(q) each of the Company and the Subsidiaries has all necessary licenses,
authorizations, consents and approvals and has made all necessary filings required under any
applicable law, regulation or rule, and has obtained all necessary licenses, authorizations,
consents and approvals from other persons, in order to conduct their respective businesses
except where the failure to be so licensed or authorized would not, singly or in the
aggregate, have a Material Adverse Effect; neither the Company nor any of the Subsidiaries
is in violation of, or in default under, or has received notice of any proceedings relating
to revocation or modification of, any such license, authorization, consent or approval or
any federal, state, local or foreign law, regulation or rule or any decree, order or
judgment applicable to the Company or any of the Subsidiaries, except where such violation,
default, revocation or modification would not, individually or in the aggregate, have a
Material Adverse Effect.
(r) except as described in the Registration Statement (excluding the exhibits thereto),
each Pre-Pricing Prospectus and the Prospectus, there are no actions, suits, claims,
investigations or proceedings pending or, to the Company’s knowledge, threatened or
contemplated to which the Company or any of the Subsidiaries or any of their respective
directors or officers is or would be a party or of which any of their respective properties
is or would be subject at law or in equity, before or by any federal, state, local or
foreign governmental or regulatory commission, board, body, authority or agency, or before
or by any self-regulatory organization or other non-governmental regulatory authority
(including, without limitation, the NASDAQ), except any such action, suit, claim,
investigation or proceeding the result of which would not, individually or in the aggregate,
be expected to have a Material Adverse Effect;
(s) neither the Company nor any of its Subsidiaries is a party to or otherwise subject
to any consent decree, memorandum of understanding, written commitment or other supervisory
agreement with any Banking Regulator or any other federal or state agency or authority, nor
has the Company or any of its subsidiaries been advised by any Banking Regulator or any
other federal or state agency or authority that it is contemplating issuing or requesting
any of the foregoing except where being a party to or subject to such consent decree,
memorandum of understanding, written commitment or other supervisory agreement would not
result in a Material Adverse Effect.
(t) each Subsidiary of the Company that is engaged in the business of insurance (each
an “Insurance Subsidiary”, collectively the “Insurance Subsidiaries”) is
licensed or authorized to conduct an insurance agency business under the insurance statutes
of each jurisdiction in which the conduct of its business requires such licensing or
authorization, except for such jurisdictions in which the failure of the Insurance
Subsidiary to be so licensed or authorized would not, singly or in the aggregate, have a
- 11 -
Material Adverse Effect. The Insurance Subsidiaries have made all required filings
under applicable insurance statutes in each jurisdiction where such filings are required,
which filings complied in all material respects with applicable insurance statutes, except
for such filings the failure of which to make or to comply would not, singly or in the
aggregate, have a Material Adverse Effect. No insurance regulatory authority having
jurisdiction over any Insurance Subsidiary has issued any order or decree impairing,
restricting or prohibiting (i) the payment of dividends by any Insurance Subsidiary to its
parent, other than those restrictions applicable to insurance companies engaged in the
insurance agency business under such jurisdiction generally, or (ii) the continuation of the
business of the Company or any of the Insurance Subsidiaries in all material respects as
presently conducted, in each case, except where such orders or decrees would not, singly or
in the aggregate, have a Material Adverse Effect. Each Insurance Subsidiary is in compliance
with, and conducts its businesses in conformity with, all applicable insurance statutes and
regulations, except where the failure to so comply or conform would not, singly or in the
aggregate, have a Material Adverse Effect.
(u) KPMG LLP, whose report on the consolidated financial statements of the Company and
the Subsidiaries is included or incorporated by reference in the Registration Statement, the
Pre-Pricing Prospectuses and the Prospectus, are independent registered public accountants
as required by the Act and by the rules of the Public Company Accounting Oversight Board;
(v) the financial statements included or incorporated by reference in the Registration
Statement, the Pre-Pricing Prospectuses, the Prospectus and the Permitted Free Writing
Prospectuses, if any, together with the related notes and schedules, present fairly the
consolidated financial position of the Company and the Subsidiaries as of the dates
indicated and the consolidated results of operations, cash flows and changes in
shareholders’ equity of the Company and the Subsidiaries for the periods specified and have
been prepared in compliance with the requirements of the Act and Exchange Act and in
conformity with U.S. generally accepted accounting principles applied on a consistent basis
during the periods involved; all pro forma financial statements or data included or
incorporated by reference in the Registration Statement, the Pre-Pricing Prospectuses, the
Prospectus and the Permitted Free Writing Prospectuses, if any, comply with the requirements
of the Act and the Exchange Act, and the assumptions used in the preparation of such pro
forma financial statements and data are reasonable, the pro forma adjustments used therein
are appropriate to give effect to the transactions or circumstances described therein and
the pro forma adjustments have been properly applied to the historical amounts in the
compilation of those statements and data; the other financial and statistical data contained
or incorporated by reference in the Registration Statement, the Pre-Pricing Prospectuses,
the Prospectus and the Permitted Free Writing Prospectuses, if any, are accurately and
fairly presented and prepared on a basis consistent with the financial statements and books
and records of the Company; there are no financial statements (historical or pro forma) that
are required to be included or incorporated by reference in the Registration Statement, any
Pre-Pricing Prospectus or the Prospectus that are not included or incorporated by reference
as required; the Company and the Subsidiaries do not have any material liabilities or
obligations, direct or
- 12 -
contingent (including any off-balance sheet obligations), not described in the
Registration Statement (excluding the exhibits thereto), each Pre-Pricing Prospectus and the
Prospectus; and all disclosures contained or incorporated by reference in the Registration
Statement, the Pre-Pricing Prospectuses, the Prospectus and the Permitted Free Writing
Prospectuses, if any, regarding “non-GAAP financial measures” (as such term is defined by
the rules and regulations of the Commission) comply with Regulation G of the Exchange Act
and Item 10 of Regulation S-K under the Act, to the extent applicable;
(w) except as disclosed in the Registration Statement (excluding the exhibits thereto),
each Pre-Pricing Prospectus and the Prospectus, each stock option granted under any stock
option plan of the Company or any Subsidiary (each, a “Stock Plan”) was granted with
a per share exercise price no less than the fair market value per share of Common Stock on
the grant date of such option, and no such grant involved any “back-dating,”
“forward-dating” or similar practice with respect to the effective date of such grant;
except as would not, individually or in the aggregate, have a Material Adverse Effect, each
such option (i) was granted in compliance with applicable law and with the applicable Stock
Plan(s), (ii) was duly approved by the board of directors (or a duly authorized committee
thereof) of the Company or such Subsidiary, as applicable, and (iii) has been properly
accounted for in the Company’s financial statements in accordance with U.S. generally
accepted accounting principles and disclosed in the Company’s filings with the Commission;
(x) subsequent to the respective dates as of which information is given in the
Registration Statement, the Pre-Pricing Prospectuses, the Prospectus and the Permitted Free
Writing Prospectuses, if any, in each case excluding any amendments or supplements to the
foregoing made after the execution of this Agreement, there has not been (i) any material
adverse change, or any development involving a prospective material adverse change, in the
business, properties, management, financial condition or results of operations of the
Company and the Subsidiaries taken as a whole, (ii) any transaction which is material to the
Company and the Subsidiaries taken as a whole, (iii) any obligation or liability, direct or
contingent (including any off-balance sheet obligations), incurred by the Company or any
Subsidiary, which is material to the Company and the Subsidiaries taken as a whole, (iv) any
change in the common stock or outstanding indebtedness of the Company or any Subsidiaries or
(v) any dividend or distribution of any kind declared, paid or made on the common stock of
the Company or any Subsidiary;
(y) the Company has obtained for the benefit of the Underwriters the agreement (a
“Lock-Up Agreement”), in the form set forth as Exhibit A hereto, of each of
its directors and “officers” (within the meaning of Rule 16a-1(f) under the Exchange Act);
(z) neither the Company nor any Subsidiary is, and at no time during which a prospectus
is required by the Act to be delivered (whether physically or through compliance with Rule
172 under the Act or any similar rule) in connection with any sale of Shares will either of
them be, and, after giving effect to the offering and sale of the
- 13 -
Shares and the application of the proceeds thereof, neither of them will be, an
“investment company” or an entity “controlled” by an “investment company,” as such terms are
defined in the Investment Company Act of 1940, as amended (the “Investment Company
Act”);
(aa) the Company and each of the Subsidiaries have good and marketable title to all
property (real and personal) described in the Registration Statement, the Pre-Pricing
Prospectuses, the Prospectus and the Permitted Free Writing Prospectuses, if any, as being
owned by any of them, free and clear of all liens, claims, security interests or other
encumbrances, except for any such liens, claims, security interests or other encumbrances
which would not, singly or in the aggregate, have a Material Adverse Effect; all the
property described in the Registration Statement, the Pre-Pricing Prospectuses, the
Prospectus and the Permitted Free Writing Prospectuses, if any, as being held under lease by
the Company or a Subsidiary is held thereby under valid, subsisting and enforceable leases
except where failure to do so would not, singly or in the aggregate, have a Material Adverse
Effect;
(bb) each of the Company and the Subsidiaries owns or possesses all inventions, patent
applications, patents, trademarks (both registered and unregistered), tradenames, service
names, copyrights, trade secrets and other proprietary information described in the
Registration Statement, the Pre-Pricing Prospectuses, the Prospectus and the Permitted Free
Writing Prospectuses, if any, as being owned or licensed by it or which is necessary for the
conduct of, or material to, its businesses (collectively, the “Intellectual
Property”), and the Company is unaware of any claim to the contrary or any challenge by
any other person to the rights of the Company or any of the Subsidiaries with respect to the
Intellectual Property except any such claims which would not, singly or in the aggregate,
have a Material Adverse Effect; neither the Company nor any of the Subsidiaries has
infringed or is infringing the intellectual property of a third party, and neither the
Company nor any Subsidiary has received notice of a claim by a third party to the contrary
except any such infringements which would not, singly or in the aggregate, have a Material
Adverse Effect;
(cc) neither the Company nor any of the Subsidiaries is engaged in any unfair labor
practice; except for matters which would not, individually or in the aggregate, have a
Material Adverse Effect, (i) there is (A) no unfair labor practice complaint pending or, to
the Company’s knowledge, threatened against the Company or any of the Subsidiaries before
the National Labor Relations Board, and no grievance or arbitration proceeding arising out
of or under collective bargaining agreements is pending or, to the Company’s knowledge,
threatened, (B) no strike, labor dispute, slowdown or stoppage pending or, to the Company’s
knowledge, threatened against the Company or any of the Subsidiaries and (C) no union
representation dispute currently existing concerning the employees of the Company or any of
the Subsidiaries, (ii) to the Company’s knowledge, no union organizing activities are
currently taking place concerning the employees of the Company or any of the Subsidiaries
and (iii) there has been no violation of any federal, state, local or foreign law relating
to discrimination in the hiring, promotion or pay of employees, any applicable wage or hour
laws or any provision of the Employee Retirement Income
- 14 -
Security Act of 1974, as amended, or the rules and regulations promulgated thereunder
concerning the employees of the Company or any of the Subsidiaries;
(dd) there are no past, present or, to the Company’s knowledge, reasonably anticipated
future events, conditions, circumstances, activities, practices, actions, omissions or plans
that could reasonably be expected to give rise to any material costs or liabilities to the
Company or any Subsidiary under, or to interfere with or prevent compliance by the Company
or any Subsidiary with, any laws or regulations relating to protection from harmful or
hazardous substances or to protection of the environment;
(ee) all tax returns required to be filed by the Company or any of the Subsidiaries
have been timely filed, and all taxes and other assessments of a similar nature (whether
imposed directly or through withholding) including any interest, additions to tax or
penalties applicable thereto due or claimed to be due from such entities have been timely
paid, other than those being contested in good faith and for which adequate reserves have
been provided;
(ff) the Company and each of the Subsidiaries maintain insurance covering their
respective properties, operations, personnel and businesses as the Company reasonably deems
adequate; such insurance insures against such losses and risks to an extent which is
adequate in accordance with customary industry practice to protect the Company and the
Subsidiaries and their respective businesses; all such insurance is fully in force on the
date hereof and will be fully in force at the time of purchase and each additional time of
purchase, if any; neither the Company nor any Subsidiary has reason to believe that it will
not be able to renew any such insurance as and when such insurance expires;
(gg) neither the Company nor any Subsidiary has sent or received any communication
regarding termination of, or intent not to renew, any of the contracts or agreements
referred to or described in any Pre-Pricing Prospectus, the Prospectus or any Permitted Free
Writing Prospectus, or referred to or described in, or filed as an exhibit to, the
Registration Statement or any Incorporated Document, and no such termination or non-renewal
has been threatened by the Company or any Subsidiary or, to the Company’s knowledge, any
other party to any such contract or agreement;
(hh) the Company and each of the Subsidiaries maintain a system of internal accounting
controls sufficient to provide reasonable assurance that (i) transactions are executed in
accordance with management’s general or specific authorization; (ii) transactions are
recorded as necessary to permit preparation of financial statements in conformity with
generally accepted accounting principles and to maintain accountability for assets; (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 existing
assets at reasonable intervals and appropriate action is taken with respect to any
differences;
(ii) the Company has established and maintains and evaluates “disclosure
- 15 -
controls and procedures” (as such term is defined in Rule 13a-15 and 15d-15 under the
Exchange Act) and “internal control over financial reporting” (as such term is defined in
Rule 13a-15 and 15d-15 under the Exchange Act); such disclosure controls and procedures are
designed to ensure that material information relating to the Company, including its
consolidated subsidiaries, is made known to the Company’s Chief Executive Officer and its
Chief Financial Officer by others within those entities, and such disclosure controls and
procedures are effective to perform the functions for which they were established; the
Company’s independent registered public accountants and the Audit Committee of the Board of
Directors of the Company have been advised of: (i) all significant deficiencies, if any, in
the design or operation of internal controls which could adversely affect the Company’s
ability to record, process, summarize and report financial data; and (ii) all fraud, if any,
whether or not material, that involves management or other employees who have a role in the
Company’s internal controls; all “significant deficiencies” and “material weaknesses” (as
such terms are defined in Rule 1-02(a)(4) of Regulation S-X under the Act) of the Company,
if any, have been identified to the Company’s independent registered public accountants and
are disclosed in the Registration Statement (excluding the exhibits thereto), each
Pre-Pricing Prospectus and the Prospectus; since the date of the most recent evaluation of
such disclosure controls and procedures and internal controls, there have been no
significant changes in internal controls or in other factors that could significantly affect
internal controls, including any corrective actions with regard to significant deficiencies
and material weaknesses; the principal executive officers (or their equivalents) and
principal financial officers (or their equivalents) of the Company have made all
certifications required by the Xxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx Act”)
and any related rules and regulations promulgated by the Commission, and the statements
contained in each such certification are complete and correct; the Company, the Subsidiaries
and the Company’s directors and officers are each in compliance in all material respects
with all applicable effective provisions of the Xxxxxxxx-Xxxxx Act and the rules and
regulations of the Commission and the NASDAQ promulgated thereunder;
(jj) each “forward-looking statement” (within the meaning of Section 27A of the Act or
Section 21E of the Exchange Act) contained or incorporated by reference in the Registration
Statement, the Pre-Pricing Prospectuses, the Prospectus and the Permitted Free Writing
Prospectuses, if any, has been made or reaffirmed with a reasonable basis and in good faith;
(kk) all statistical or market-related data included or incorporated by reference in
the Registration Statement, the Pre-Pricing Prospectuses, the Prospectus and the Permitted
Free Writing Prospectuses, if any, are based on or derived from sources that the Company
reasonably believes to be reliable and accurate, and the Company has obtained the written
consent to the use of such data from such sources to the extent required;
(ll) neither the Company nor any of the Subsidiaries nor, to the knowledge of the
Company, any director, officer, agent, employee or affiliate of the Company or any of the
Subsidiaries is aware of or has taken any action, directly or indirectly, that would result
in a violation by such persons of the Foreign Corrupt Practices Act of 1977, as
- 16 -
amended, and the rules and regulations thereunder (the “Foreign Corrupt Practices
Act”); and the Company, the Subsidiaries and, to the knowledge of the Company, its
affiliates have instituted and maintain policies and procedures designed to ensure continued
compliance therewith;
(mm) the operations of the Company and the Subsidiaries are and have been conducted at
all times in compliance with applicable financial recordkeeping and reporting requirements
of the Currency and Foreign Transactions Reporting Act of 1970, as amended, the money
laundering statutes of all jurisdictions, the rules and regulations thereunder and any
related or similar rules, regulations or guidelines, issued, administered or enforced by any
governmental agency (collectively, the “Money Laundering Laws”); and no action, suit
or proceeding by or before any court or governmental agency, authority or body or any
arbitrator or non-governmental authority involving the Company or any of the Subsidiaries
with respect to the Money Laundering Laws is pending or, to the Company’s knowledge,
threatened;
(nn) neither the Company nor any of the Subsidiaries nor, to the knowledge of the
Company, any director, officer, agent, employee or affiliate of the Company or any of the
Subsidiaries is currently subject to any U.S. sanctions administered by the Office of
Foreign Assets Control of the U.S. Treasury Department (“OFAC”); and the Company
will not directly or indirectly use the proceeds of the offering of the Shares contemplated
hereby, 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;
(oo) no Subsidiary is currently prohibited, directly or indirectly, 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 property or assets to the Company or
any other Subsidiary of the Company, except as described in the Registration Statement
(excluding the exhibits thereto), each Pre-Pricing Prospectus and the Prospectus;
(pp) the issuance and sale of the Shares as contemplated hereby will not cause any
holder of any shares of capital stock, securities convertible into or exchangeable or
exercisable for capital stock or options, warrants or other rights to purchase capital stock
or any other securities of the Company to have any right to acquire any shares of preferred
stock of the Company;
(qq) the Company has not received any notice from the NASDAQ regarding the delisting of
the Common Stock from the NASDAQ;
(rr) except pursuant to this Agreement, neither the Company nor any of the Subsidiaries
has incurred any liability for any finder’s or broker’s fee or agent’s commission in
connection with the execution and delivery of this Agreement or the consummation of the
transactions contemplated hereby or by the Registration Statement;
- 17 -
(ss) neither the Company nor any of the Subsidiaries nor any of their respective
directors, officers, affiliates or controlling persons has taken, directly or indirectly,
any action designed, or which 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; and
(tt) to the Company’s knowledge, there are no affiliations or associations between (i)
any member of FINRA and (ii) the Company or any of the Company’s officers, directors or 5%
or greater security holders or any beneficial owner of the Company’s unregistered equity
securities that were acquired at any time on or after the 180th day immediately preceding
the date the Registration Statement was initially filed with the Commission, except as
disclosed in the Registration Statement (excluding the exhibits thereto), the Pre-Pricing
Prospectuses and the Prospectus.
In addition, any certificate signed by any officer of the Company or any of the Subsidiaries
and delivered to any Underwriter or counsel for the Underwriters in connection with the offering of
the Shares shall be deemed to be a representation and warranty by the Company, as to matters
covered thereby, to each Underwriter.
4. Certain Covenants of the Company. The Company hereby agrees:
(a) to furnish such information as may be required and otherwise to cooperate in
qualifying the Shares for offering and sale under the securities or blue sky laws of such
states or other jurisdictions as you may designate and to maintain such qualifications in
effect so long as you may request for the distribution of the Shares; provided,
however, that the Company shall not be required to qualify as a foreign corporation
or to consent to the service of process under the laws of any such jurisdiction (except
service of process with respect to the offering and sale of the Shares); and to promptly
advise you of the receipt by the Company of any notification with respect to the suspension
of the qualification of the Shares for offer or sale in any jurisdiction or the initiation
or threatening of any proceeding for such purpose;
(b) to make available to the Underwriters in New York City, as soon as practicable
after this Agreement becomes effective, and thereafter from time to time to furnish to the
Underwriters, as many copies of the Prospectus (or of the Prospectus as amended or
supplemented if the Company shall have made any amendments or supplements thereto after the
effective date of the Registration Statement) as the Underwriters may request for the
purposes contemplated by the Act; in case any Underwriter is required to deliver (whether
physically or through compliance with Rule 172 under the Act or any similar rule), in
connection with the sale of the Shares, a prospectus after the nine-month period referred to
in Section 10(a)(3) of the Act, or after the time a post-effective amendment to the
Registration Statement is required pursuant to Item 512(a) of Regulation S-K under the Act,
the Company will prepare, at its expense, promptly upon request such amendment or amendments
to the Registration Statement and the Prospectus as may be necessary to permit compliance
with the requirements of
- 18 -
Section 10(a)(3) of the Act or Item 512(a) of Regulation S-K under the Act, as the case
may be;
(c) if, at the time this Agreement is executed and delivered, it is necessary or
appropriate for a post-effective amendment to the Registration Statement, or a Registration
Statement under Rule 462(b) under the Act, to be filed with the Commission and become
effective before the Shares may be sold, the Company will use its best efforts to cause such
post-effective amendment or such Registration Statement to be filed and become effective,
and will pay any applicable fees in accordance with the Act, as soon as possible; and the
Company will advise you promptly and, if requested by you, will confirm such advice in
writing, (i) when such post-effective amendment or such Registration Statement has become
effective, and (ii) if Rule 430A under the Act is used, when the Prospectus is filed with
the Commission pursuant to Rule 424(b) under the Act (which the Company agrees to file in a
timely manner in accordance with such Rules);
(d) if, at any time during the period when a prospectus is required by the Act to be
delivered (whether physically or through compliance with Rule 172 under the Act or any
similar rule) in connection with any sale of Shares, the Registration Statement shall cease
to comply with the requirements of the Act with respect to eligibility for the use of the
form on which the Registration Statement was filed with the Commission or the Registration
Statement shall cease to be an “automatic shelf registration statement” (as defined in Rule
405 under the Act) or the Company shall have received, from the Commission, a notice,
pursuant to Rule 401(g)(2), of objection to the use of the form on which the Registration
Statement was filed with the Commission, to (i) promptly notify you, (ii) promptly file with
the Commission a new registration statement under the Act, relating to the Shares, or a
post-effective amendment to the Registration Statement, which new registration statement or
post-effective amendment shall comply with the requirements of the Act and shall be in a
form satisfactory to you, (iii) use its best efforts to cause such new registration
statement or post-effective amendment to become effective under the Act as soon as
practicable, (iv) promptly notify you of such effectiveness and (v) take all other action
necessary or appropriate to permit the public offering and sale of the Shares to continue as
contemplated in the Prospectus; all references herein to the Registration Statement shall be
deemed to include each such new registration statement or post-effective amendment, if any;
(e) if the third anniversary of the initial effective date of the Registration
Statement (within the meaning of Rule 415(a)(5) under the Act) shall occur at any time
during the period when a prospectus is required by the Act to be delivered (whether
physically or through compliance with Rule 172 under the Act or any similar rule) in
connection with any sale of Shares, to file with the Commission, prior to such third
anniversary, a new registration statement under the Act relating to the Shares, which new
registration statement shall comply with the requirements of the Act (including, without
limitation, Rule 415(a)(6) under the Act) and shall be in a form satisfactory to you; such
new registration statement shall constitute an “automatic shelf registration statement” (as
defined in Rule 405 under the Act); provided, however, that if the Company
is not then eligible to file an “automatic shelf registration statement” (as defined in Rule
405 under
- 19 -
the Act), then such new registration statement need not constitute an “automatic shelf
registration statement” (as defined in Rule 405 under the Act), but the Company shall”;
(f) to advise you promptly, confirming such advice in writing, of any request by the
Commission for amendments or supplements to the Registration Statement, any Pre-Pricing
Prospectus, the Prospectus or any Permitted 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 its best efforts to obtain the lifting or removal of such order as soon as
possible; to advise you promptly of any proposal to amend or supplement the Registration
Statement, any Pre-Pricing Prospectus or the Prospectus, and to provide you and
Underwriters’ counsel copies of any such documents for review and comment a reasonable
amount of time prior to any proposed filing and to file no such amendment or supplement to
which you shall object in writing;
(g) subject to Section 4(f) hereof, 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 a prospectus is
required by the Act to be delivered (whether physically or through compliance with Rule 172
under the Act or any similar rule) in connection with any sale of Shares; and to provide
you, for your review and comment, with a copy of such reports and statements and other
documents to be filed by the Company pursuant to Section 13, 14 or 15(d) of the Exchange Act
during such period a reasonable amount of time prior to any proposed filing, and to file no
such report, statement or document to which you shall have objected in writing; and to
promptly notify you of such filing;
(h) to pay the fees applicable to the Registration Statement in connection with the
offering of the Shares within the time required by Rule 456(b)(1)(i) under the Act (without
reliance on the proviso to Rule 456(b)(1)(i) under the Act) and in compliance with Rule
456(b) and Rule 457(r) under the Act;
(i) to advise the Underwriters promptly of the happening of any event within the period
during which a prospectus is required by the Act to be delivered (whether physically or
through compliance with Rule 172 under the Act or any similar rule) in connection with any
sale of Shares, which event could require the making of any change in the Prospectus then
being used so that the Prospectus would not include an 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 are made, not misleading, and to advise the
Underwriters promptly if, during such period, it shall become necessary to amend or
supplement the Prospectus to cause the Prospectus to comply with the requirements of the
Act, and, in each case, during such time, subject to Section 4(f) hereof, to prepare and
furnish, at the Company’s expense, to the Underwriters promptly such amendments or
supplements to such Prospectus as may be necessary to reflect any such change or to effect
such compliance;
- 20 -
(j) to make generally available to its security holders, and to deliver to you, an
earnings statement of the Company (which will satisfy the provisions of Section 11(a) of the
Act) covering a period of twelve months beginning after the effective date of the
Registration Statement (as defined in Rule 158(c) under the Act) as soon as is reasonably
practicable after the termination of such twelve-month period but in any case not later than
March 1, 2011;
(k) to furnish to you copies of the Registration Statement, as initially filed with the
Commission, and of all amendments thereto (including all exhibits thereto and documents
incorporated by reference therein) and sufficient copies of the foregoing (other than
exhibits) for distribution of a copy to each of the other Underwriters;
(l) to furnish to you as early as practicable prior to the time of purchase and any
additional time of purchase, as the case may be, but not later than two business days prior
thereto, a copy of the latest available unaudited interim consolidated financial statements,
if any, of the Company and the Subsidiaries which have been read by the Company’s
independent registered public accountants, as stated in their letter to be furnished
pursuant to Section 6(d) hereof;
(m) to apply the net proceeds from the sale of the Shares in the manner set forth under
the caption “Use of proceeds” in the Prospectus Supplement;
(n) to pay all costs, expenses, fees and taxes in connection with (i) the preparation
and filing of the Registration Statement, each Basic Prospectus, each Pre-Pricing
Prospectus, the Prospectus Supplement, the Prospectus, each Permitted Free Writing
Prospectus and any amendments or supplements thereto, and the printing and furnishing of
copies of each thereof to the Underwriters and to dealers (including costs of mailing and
shipment), (ii) the registration, issue, sale and delivery of the Shares including any stock
or transfer taxes and stamp or similar duties payable upon the sale, issuance or delivery of
the Shares to the Underwriters, (iii) the producing, word processing and/or printing of this
Agreement, any Agreement Among Underwriters, any dealer agreements, any Powers of Attorney
and any closing documents (including compilations thereof) and the reproduction and/or
printing and furnishing of copies of each thereof to the Underwriters and (except closing
documents) to dealers (including costs of mailing and shipment), (iv) the qualification of
the Shares for offering and sale under state or foreign laws and the determination of their
eligibility for investment under state or foreign law (including the legal fees and filing
fees and other disbursements of counsel for the Underwriters) and the printing and
furnishing of copies of any blue sky surveys or legal investment surveys to the Underwriters
and to dealers, (v) any listing of the Shares on any securities exchange or qualification of
the Shares for quotation on the NASDAQ and any registration thereof under the Exchange Act,
(vi) any filing for review of the public offering of the Shares by FINRA, including the
legal fees and filing fees and other disbursements of counsel to the Underwriters relating
to FINRA matters, (vii) the fees and disbursements of any transfer agent or registrar for
the Shares, (viii) the costs and expenses of the Company relating to presentations or
meetings undertaken in connection with the marketing of the offering and sale of the Shares
to prospective
- 21 -
investors and the Underwriters’ sales forces, including, without limitation, 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, travel, lodging and
other expenses incurred by the officers of the Company and any such consultants, and the
cost of any aircraft chartered in connection with the road show and (ix) the performance of
the Company’s other obligations hereunder;
(o) to comply with Rule 433(d) under the Act and with Rule 433(g) under the Act;
(p) beginning on the date hereof and ending on, and including, the date that is 90 days
after the date of the Prospectus Supplement (the “Lock-Up Period”), without the
prior written consent of UBS and X.X. Xxxxxx Securities Inc., not to (i) issue, sell, offer
to sell, contract or agree to sell, hypothecate, pledge, grant any option to purchase or
otherwise dispose of or agree to dispose of, directly or indirectly, or establish or
increase a put equivalent position or liquidate or decrease a call equivalent position
within the meaning of Section 16 of the Exchange Act and the rules and regulations of the
Commission promulgated thereunder, with respect to, any Common Stock or any other securities
of the Company that are substantially similar to Common Stock, or any securities convertible
into or exchangeable or exercisable for, or any warrants or other rights to purchase, the
foregoing, (ii) file or cause to become effective a registration statement under the Act
relating to the offer and sale of any Common Stock or any other securities of the Company
that are substantially similar to Common Stock, or any securities convertible into or
exchangeable or exercisable for, or any warrants or other rights to purchase, the foregoing,
(iii) enter into any swap or other arrangement that transfers to another, in whole or in
part, any of the economic consequences of ownership of Common Stock or any other securities
of the Company that are substantially similar to Common Stock, or any securities convertible
into or exchangeable or exercisable for, or any warrants or other rights to purchase, the
foregoing, whether any such transaction is to be settled by delivery of Common Stock or such
other securities, in cash or otherwise or (iv) publicly announce an intention to effect any
transaction specified in clause (i), (ii) or (iii), except, in each case, for (A) the
registration of the offer and sale of the Shares as contemplated by this Agreement, (B)
issuances of Common Stock upon the exercise of options or warrants disclosed as outstanding
in the Registration Statement (excluding the exhibits thereto), each Pre-Pricing Prospectus
and the Prospectus, and (C) the issuance of employee stock options or restricted stock not
exercisable or sellable during the Lock-Up Period pursuant to stock option plans described
in the Registration Statement (excluding the exhibits thereto), each Pre-Pricing Prospectus
and the Prospectus; provided, however, that if (a) during the period that
begins on the date that is fifteen (15) calendar days plus three (3) business days before
the last day of the Lock-Up Period and ends on the last day of the Lock-Up Period, the
Company issues an earnings release or material news or a material event relating to the
Company occurs; or (b) prior to the expiration of the Lock-Up Period, the Company announces
that it will release earnings results during the sixteen (16) day period beginning on the
last day of the Lock-Up Period, then the restrictions imposed by this Section 4(p) shall
continue to apply until the expiration of the date that is fifteen (15) calendar days plus
three (3) business days after the date on which the
- 22 -
issuance of the earnings release or the material news or material event occurs;
(q) prior to the time of purchase or any additional time of purchase, as the case may
be, to issue no press release or other communication directly or indirectly and hold no
press conferences with respect to the Company or any Subsidiary, the financial condition,
results of operations, business, properties, assets, or liabilities of the Company or any
Subsidiary, or the offering of the Shares, without your prior consent;
(r) not, at any time at or after the execution of this Agreement, to, directly or
indirectly, offer or sell any Shares by means of any “prospectus” (within the meaning of the
Act), or use any “prospectus” (within the meaning of the Act) in connection with the offer
or sale of the Shares, in each case other than the Prospectus;
(s) not to, and to cause the 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;
(t) to use its best efforts to cause the Shares to be listed for quotation on the
NASDAQ and to maintain the listing of the Common Stock, including the Shares, for quotation
on the NASDAQ; and
(u) to maintain a transfer agent and, if necessary under the jurisdiction of
incorporation of the Company, a registrar for the Common Stock.
5. Reimbursement of the Underwriters’ Expenses. If, after the execution and delivery
of this Agreement, the Shares are not delivered for any reason other than the termination of this
Agreement pursuant to the fifth paragraph of Section 8 hereof or the default by one or more of the
Underwriters in its or their respective obligations hereunder or an event described in Section
7(2)(A)(C)(D) or (E), the Company shall, in addition to paying the amounts described in Section
4(n) hereof, reimburse the Underwriters for all of their out-of-pocket expenses, including the fees
and disbursements of their counsel.
6. Conditions of the Underwriters’ Obligations. The several obligations of the
Underwriters hereunder are subject to the accuracy of the representations and warranties on the
part of the Company on the date hereof, at the time of purchase and, if applicable, at the
additional time of purchase, the performance by the Company of its obligations hereunder and to the
following additional conditions precedent:
(a) The Company shall furnish to you at the time of purchase and, if applicable, at the
additional time of purchase, an opinion of Xxxxxxxxx & Xxxxxxx LLP, counsel for the Company,
addressed to the Underwriters, and dated the time of purchase or the additional time of
purchase, as the case may be, with executed copies for each Underwriter, and in form and
substance satisfactory to UBS, in the form set forth in Exhibit B hereto.
- 23 -
(b) The Company shall furnish to you at the time of purchase and, if applicable, at the
additional time of purchase, an opinion of Brunini, Grantham, Grower & Xxxxx, PLLC,
Mississippi counsel for the Company, addressed to the Underwriters, and dated the time of
purchase or the additional time of purchase, as the case may be, with executed copies for
each Underwriter, and in form and substance satisfactory to UBS, in the form set forth in
Exhibit C hereto.
(c) The Company shall furnish to you at the time of purchase and, if applicable, at the
additional time of purchase, an opinion of X. Xxxxxx Xxxxxxx III, Secretary of the Company
and General Counsel of Trustmark National Bank, addressed to the Underwriters, and dated the
time of purchase or the additional time of purchase, as the case may be, with executed
copies for each Underwriter, and in form and substance satisfactory to UBS, in the form set
forth in Exhibit D hereto.
(d) You shall have received from KPMG LLP letters dated, respectively, the date of this
Agreement, the date of the Prospectus Supplement, the time of purchase and, if applicable,
the additional time of purchase, and addressed to the Underwriters (with executed copies for
each Underwriter) in the forms satisfactory to UBS, which letters shall cover, without
limitation, the various financial disclosures contained in the Registration Statement, the
Pre-Pricing Prospectuses, the Prospectus and the Permitted Free Writing Prospectuses, if
any.
(e) You shall have received at the time of purchase and, if applicable, at the
additional time of purchase, the favorable opinion of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP,
counsel for the Underwriters, dated the time of purchase or the additional time of purchase,
as the case may be, in form and substance reasonably satisfactory to each of UBS and X.X.
Xxxxxx Securities Inc.
(f) No Prospectus or amendment or supplement to the Registration Statement or the
Prospectus shall have been filed to which you shall have objected in writing.
(g) The Registration Statement and any registration statement required to be filed,
prior to the sale of the Shares, under the Act pursuant to Rule 462(b) shall have been filed
and shall have become effective under the Act. The Prospectus Supplement shall have been
filed with the Commission pursuant to Rule 424(b) under the Act at or before 5:30 P.M., New
York City time, on the second full business day after the date of this Agreement (or such
earlier time as may be required under the Act).
(h) Prior to and at the time of purchase, and, if applicable, the additional time of
purchase, (i) no stop order with respect to the effectiveness of the Registration Statement
shall have been issued under the Act or proceedings initiated under Section 8(d) or 8(e) of
the Act; (ii) the Registration Statement and all amendments thereto shall not contain an
untrue statement of a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading; (iii) none of the
Pre-Pricing Prospectuses or the Prospectus, and no amendment or supplement thereto, shall
include an untrue statement of a material fact or omit to state a material fact
- 24 -
necessary in order to make the statements therein, in the light of the circumstances
under which they are made, not misleading; (iv) no Disclosure Package, and no amendment or
supplement thereto, shall include an 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 are made, not misleading; and (v) none of the Permitted Free
Writing Prospectuses, if any, shall include an 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 are made, not misleading.
(i) The Company will, at the time of purchase and, if applicable, at the additional
time of purchase, deliver to you a certificate of its Chief Executive Officer and its Chief
Financial Officer, dated the time of purchase or the additional time of purchase, as the
case may be, in the form attached as Exhibit E hereto.
(j) You shall have received each of the signed Lock-Up Agreements referred to in
Section 3(y) hereof, and each such Lock-Up Agreement shall be in full force and effect at
the time of purchase and the additional time of purchase, as the case may be.
(k) The Company shall have furnished to you such other documents and certificates as to
the accuracy and completeness of any statement in the Registration Statement, any
Pre-Pricing Prospectus, the Prospectus or any Permitted Free Writing Prospectus as of the
time of purchase and, if applicable, the additional time of purchase, as you may reasonably
request.
(l) The Shares shall have been approved for quotation on the NASDAQ, subject only to
notice of issuance at or prior to the time of purchase or the additional time of purchase,
as the case may be.
(m) FINRA shall not have raised any objection with respect to the fairness or
reasonableness of the underwriting, or other arrangements of the transactions, contemplated
hereby.
7. Effective Date of Agreement; Termination. This Agreement shall become effective
when the parties hereto have executed and delivered this Agreement.
The obligations of the several Underwriters hereunder shall be subject to termination in the
absolute discretion of UBS and X.X. Xxxxxx Securities Inc., if (1) since the time of execution of
this Agreement or the earlier respective dates as of which information is given in the Registration
Statement, the Pre-Pricing Prospectuses, the Prospectus and the Permitted Free Writing
Prospectuses, if any, there has been any change or any development involving a prospective change
in the business, properties, management, financial condition or results of operations of the
Company and the Subsidiaries taken as a whole, the effect of which change or development is, in the
sole judgment of UBS and X.X. Xxxxxx Securities Inc., so material and adverse as to make it
impractical or inadvisable to proceed with the public offering or the delivery of the Shares on the
terms and in the manner contemplated in the Registration Statement, the Pre-Pricing Prospectuses,
the Prospectus and the Permitted Free Writing
- 25 -
Prospectuses, if any, or (2) since the time of execution of this Agreement, there shall have
occurred: (A) a suspension or material limitation in trading in securities generally on the NYSE,
the American Stock Exchange or the NASDAQ; (B) a suspension or material limitation in trading in
the Company’s securities on the NASDAQ; (C) a general moratorium on commercial banking activities
declared by either federal or New York State authorities or a material disruption in commercial
banking or securities settlement or clearance services in the United States; (D) an outbreak or
escalation of hostilities or acts of terrorism involving the United States or a declaration by the
United States of a national emergency or war; or (E) any other calamity or crisis or any change in
financial, political or economic conditions in the United States or elsewhere, if the effect of any
such event specified in clause (D) or (E), in the sole judgment of UBS and X.X. Xxxxxx Securities
Inc., makes it impractical or inadvisable to proceed with the public offering or the delivery of
the Shares on the terms and in the manner contemplated in the Registration Statement, the
Pre-Pricing Prospectuses, the Prospectus and the Permitted Free Writing Prospectuses, if any, or
(3) since the time of execution of this Agreement, there shall have occurred any downgrading, or
any notice or announcement shall have been given or made of: (A) any intended or potential
downgrading or (B) any watch, review or possible change that does not indicate an affirmation or
improvement in the rating accorded any securities of or guaranteed by the Company or any Subsidiary
by any of Standard & Poor’s, Xxxxx’x Investors Service, Inc. or Fitch Ratings Ltd.
If UBS and X.X. Xxxxxx Securities Inc. elect to terminate this Agreement as provided in this
Section 7, the Company and each other Underwriter shall be notified promptly in writing.
If the sale to the Underwriters of the Shares, as contemplated by this Agreement, is not
carried out by the Underwriters for any reason permitted under this Agreement, or if such sale is
not carried out because the Company shall be unable to comply with any of the terms of this
Agreement, the Company shall not be under any obligation or liability under this Agreement (except
to the extent provided in Sections 4(n), 5 and 9 hereof), and the Underwriters shall be under no
obligation or liability to the Company under this Agreement (except to the extent provided in
Section 9 hereof) or to one another hereunder.
8. Increase in Underwriters’ Commitments. Subject to Sections 6 and 7 hereof, if any
Underwriter shall default in its obligation to take up and pay for the Firm Shares to be purchased
by it hereunder (otherwise than for a failure of a condition set forth in Section 6 hereof or a
reason sufficient to justify the termination of this Agreement under the provisions of Section 7
hereof) and if the number of Firm Shares which all Underwriters so defaulting shall have agreed but
failed to take up and pay for does not exceed 10% of the total number of Firm Shares, the
non-defaulting Underwriters (including the Underwriters, if any, substituted in the manner set
forth below) shall take up and pay for (in addition to the aggregate number of Firm Shares they are
obligated to purchase pursuant to Section 1 hereof) the number of Firm Shares agreed to be
purchased by all such defaulting Underwriters, as hereinafter provided. Such Shares shall be taken
up and paid for by such non-defaulting Underwriters in such amount or amounts as you may designate
with the consent of each Underwriter so designated or, in the event no such designation is made,
such Shares shall be taken up and paid for by all non-defaulting Underwriters pro rata in
proportion to the aggregate number of Firm Shares set forth opposite the
- 26 -
names of such non-defaulting Underwriters in Schedule A.
Without relieving any defaulting Underwriter from its obligations hereunder, the Company
agrees with the non-defaulting Underwriters that it will not sell any Firm Shares hereunder unless
all of the Firm Shares are purchased by the Underwriters (or by substituted Underwriters selected
by you with the approval of the Company or selected by the Company with your approval).
If a new Underwriter or Underwriters are substituted by the Underwriters or by the Company for
a defaulting Underwriter or Underwriters in accordance with the foregoing provision, the Company or
you shall have the right to postpone the time of purchase for a period not exceeding five business
days in order that any necessary changes in the Registration Statement and the Prospectus and other
documents may be effected.
The term “Underwriter” as used in this Agreement shall refer to and include any Underwriter
substituted under this Section 8 with like effect as if such substituted Underwriter had originally
been named in Schedule A hereto.
If the aggregate number of Firm Shares which the defaulting Underwriter or Underwriters agreed
to purchase exceeds 10% of the total number of Firm Shares which all Underwriters agreed to
purchase hereunder, and if neither the non-defaulting Underwriters nor the Company shall make
arrangements within the five business day period stated above for the purchase of all the Firm
Shares which the defaulting Underwriter or Underwriters agreed to purchase hereunder, this
Agreement shall terminate without further act or deed and without any liability on the part of the
Company to any Underwriter and without any liability on the part of any non-defaulting Underwriter
to the Company. Nothing in this paragraph, and no action taken hereunder, shall relieve any
defaulting Underwriter from liability in respect of any default of such Underwriter under this
Agreement.
9. Indemnity and Contribution.
(a) The Company agrees to indemnify, defend and hold harmless each Underwriter, its
partners, directors, officers and members, any person who controls any Underwriter within
the meaning of Section 15 of the Act or Section 20 of the Exchange Act, and any “affiliate”
(within the meaning of Rule 405 under the Act) of such Underwriter, and the successors and
assigns of all of the foregoing persons, from and against any loss, damage, expense,
liability or claim (including the reasonable cost of investigation) which, jointly or
severally, any such Underwriter or any such person may incur under the Act, the Exchange
Act, the common law or otherwise, insofar as such loss, damage, expense, liability or claim
arises out of or is based upon (i) any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement (or in the Registration Statement as
amended by any post-effective amendment thereof by the Company) or arises out of or is based
upon any omission or alleged omission to state a material fact required to be stated therein
or necessary to make the statements therein not misleading, except insofar as any such loss,
damage, expense, liability or claim arises out of or is based upon any untrue statement or
alleged untrue
- 27 -
statement of a material fact contained in, and in conformity with information
concerning such Underwriter furnished in writing by or on behalf of such Underwriter through
you to the Company expressly for use in, the Registration Statement or arises out of or is
based upon any omission or alleged omission to state a material fact in the Registration
Statement in connection with such information, which material fact was not contained in such
information and which material fact was required to be stated in such Registration Statement
or was necessary to make such information not misleading or (ii) any untrue statement or
alleged untrue statement of a material fact included in any Prospectus (the term Prospectus
for the purpose of this Section 9 being deemed to include any Basic Prospectus, any
Pre-Pricing Prospectus, the Prospectus Supplement, the Prospectus and any amendments or
supplements to the foregoing), in any Covered Free Writing Prospectus, in any “issuer
information” (as defined in Rule 433 under the Act) of the Company or in any Prospectus
together with any combination of one or more of the Covered Free Writing Prospectuses, if
any, or arises out of or is based upon any omission or alleged omission 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, except, with respect to such Prospectus or any
Permitted Free Writing Prospectus, insofar as any such loss, damage, expense, liability or
claim arises out of or is based upon any untrue statement or alleged untrue statement of a
material fact contained in, and in conformity with information concerning such Underwriter
furnished in writing by or on behalf of such Underwriter through you to the Company
expressly for use in, such Prospectus or Permitted Free Writing Prospectus or arises out of
or is based upon any omission or alleged omission to state a material fact in such
Prospectus or Permitted Free Writing Prospectus in connection with such information, which
material fact was not contained in such information and which material fact was necessary in
order to make the statements in such information, in the light of the circumstances under
which they were made, not misleading.
(b) Each Underwriter severally agrees to indemnify, defend and hold harmless the
Company, its directors and officers, and any person who controls the Company within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act, and the successors and
assigns of all of the foregoing persons, from and against any loss, damage, expense,
liability or claim (including the reasonable cost of investigation) which, jointly or
severally, the Company or any such person may incur under the Act, the Exchange Act, the
common law or otherwise, insofar as such loss, damage, expense, liability or claim arises
out of or is based upon (i) any untrue statement or alleged untrue statement of a material
fact contained in, and in conformity with information concerning such Underwriter furnished
in writing by or on behalf of such Underwriter through you to the Company expressly for use
in, the Registration Statement (or in the Registration Statement as amended by any
post-effective amendment thereof by the Company), or arises out of or is based upon any
omission or alleged omission to state a material fact in such Registration Statement in
connection with such information, which material fact was not contained in such information
and which material fact was required to be stated in such Registration Statement or was
necessary to make such information not misleading or (ii) any untrue statement or alleged
untrue statement of a material fact contained in, and in conformity with information
concerning such Underwriter furnished in writing by or
- 28 -
on behalf of such Underwriter through you to the Company expressly for use in, a
Prospectus or a Permitted Free Writing Prospectus, or arises out of or is based upon any
omission or alleged omission to state a material fact in such Prospectus or Permitted Free
Writing Prospectus in connection with such information, which material fact was not
contained in such information and which material fact was necessary in order to make the
statements in such information, in the light of the circumstances under which they were
made, not misleading.
(c) If any action, suit or proceeding (each, a “Proceeding”) is brought against
a person (an “indemnified party”) in respect of which indemnity may be sought
against the Company or an Underwriter (as applicable, the “indemnifying party”)
pursuant to subsection (a) or (b), respectively, of this Section 9, such indemnified party
shall promptly notify such indemnifying party in writing of the institution of such
Proceeding and such indemnifying party shall assume the defense of such Proceeding,
including the employment of counsel reasonably satisfactory to such indemnified party and
payment of all fees and expenses; provided, however, that the omission to so
notify such indemnifying party shall not relieve such indemnifying party from any liability
which such indemnifying party may have to any indemnified party or otherwise. The
indemnified party or parties shall have the right to employ its or their own counsel in any
such case, but the fees and expenses of such counsel shall be at the expense of such
indemnified party or parties unless the employment of such counsel shall have been
authorized in writing by the indemnifying party in connection with the defense of such
Proceeding or the indemnifying party shall not have, within a reasonable period of time in
light of the circumstances, employed counsel to defend such Proceeding or such indemnified
party or parties shall have reasonably concluded that there may be defenses available to it
or them which are different from, additional to or in conflict with those available to such
indemnifying party (in which case such indemnifying party shall not have the right to direct
the defense of such Proceeding on behalf of the indemnified party or parties), in any of
which events such fees and expenses shall be borne by such indemnifying party and paid as
incurred (it being understood, however, that such indemnifying party shall not be liable for
the expenses of more than one separate counsel (in addition to any local counsel) in any one
Proceeding or series of related Proceedings in the same jurisdiction representing the
indemnified parties who are parties to such Proceeding). The indemnifying party shall not
be liable for any settlement of any Proceeding effected without its written consent but, if
settled with its written consent, such indemnifying party agrees to indemnify and hold
harmless the indemnified party or parties from and against any loss or liability by reason
of such settlement. 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 sentence of this Section 9(c), then
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 60
business days after receipt by such indemnifying party of the aforesaid request, (ii) such
indemnifying party shall not have fully reimbursed the indemnified party in accordance with
such request prior to the date of such settlement and (iii) such indemnified party shall
have given the indemnifying party at least 30 days’ prior notice of its intention to
- 29 -
settle. 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 and does not include an admission of fault or culpability or a failure to
act by or on behalf of such indemnified party.
(d) If the indemnification provided for in this Section 9 is unavailable to an
indemnified party under subsections (a) and (b) of this Section 9 or insufficient to hold an
indemnified party harmless in respect of any losses, damages, expenses, liabilities or
claims referred to therein, then each applicable indemnifying party shall contribute to the
amount paid or payable by such indemnified party as a result of such losses, damages,
expenses, liabilities or claims (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 (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 (i) above but also the relative fault of the
Company on the one hand and of the Underwriters on the other in connection with the
statements or omissions which resulted in such losses, damages, expenses, liabilities or
claims, 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 total proceeds from the offering (net of
underwriting discounts and commissions but before deducting expenses) received by the
Company, and the total underwriting discounts and commissions received by the Underwriters,
bear to the aggregate public offering price of the Shares. The relative fault of the
Company on the one hand and of the Underwriters on the other shall be determined by
reference to, among other things, whether the untrue statement or alleged untrue statement
of a material fact or omission or alleged omission 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 amount
paid or payable by a party as a result of the losses, damages, expenses, liabilities and
claims referred to in this subsection shall be deemed to include any legal or other fees or
expenses reasonably incurred by such party in connection with investigating, preparing to
defend or defending any Proceeding.
(e) The Company and the Underwriters agree that it would not be just and equitable if
contribution pursuant to this Section 9 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
subsection (d) above. Notwithstanding the provisions of this Section 9, 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 such Underwriter and distributed to the public were
offered to the public exceeds the amount of any damage which such Underwriter has otherwise
been required to pay by reason of such untrue statement or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent
- 30 -
misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent misrepresentation. The
Underwriters’ obligations to contribute pursuant to this Section 9 are several in proportion
to their respective underwriting commitments and not joint.
(f) The indemnity and contribution agreements contained in this Section 9 and the
covenants, warranties and representations of the Company contained in this Agreement shall
remain in full force and effect regardless of any investigation made by or on behalf of any
Underwriter, its partners, directors, officers or members or any person (including each
partner, officer, director or member of such person) who controls any Underwriter within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act, or by or on behalf of
the Company, its directors or officers or any person who controls the Company within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act, and shall survive any
termination of this Agreement or the issuance and delivery of the Shares. The Company and
each Underwriter agree promptly to notify each other of the commencement of any Proceeding
against it and, in the case of the Company, against any of the Company’s officers or
directors in connection with the issuance and sale of the Shares, or in connection with the
Registration Statement, any Basic Prospectus, any Pre-Pricing Prospectus, the Prospectus or
any Permitted Free Writing Prospectus.
10. Information Furnished by the Underwriters. The portion of the statement set forth
prior to the comma in the fourth paragraph, the statements set forth in the fifth paragraph, the
statements in the first four sentences of the seventh paragraph and the statements set forth in the
fifteenth, sixteenth, seventeenth, eighteenth and nineteenth paragraphs, each under the caption
“Underwriting” in the Prospectus, only insofar as such statements relate to the amount of selling
concession and reallowance or to over-allotment and stabilization activities that may be undertaken
by the Underwriters, constitute the only information furnished by or on behalf of the Underwriters,
as such information is referred to in Sections 3 and 9 hereof.
11. Notices. Except as otherwise herein provided, all statements, requests, notices
and agreements shall be in writing or by facsimile and, if to the Underwriters, shall be sufficient
in all respects if delivered or sent to UBS Securities LLC, 000 Xxxx Xxxxxx, Xxx Xxxx, XX
00000-0000, Attention: Syndicate Department or X.X. Xxxxxx Securities Inc., 000 Xxxxxxx xxxxxx, 0xx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Equity Syndicate Desk (facsimile: (000) 000-0000); and
if to the Company, shall be sufficient in all respects if delivered or sent to the Company at the
offices of the Company at 000 Xxxx Xxxxxxx Xxxxxx, X.X. Xxx 000, Xxxxxxx, Xxxxxxxxxxx 00000
(facsimile: (000) 000-0000), Attention: Xxxxxxx X. Xxxxxxx, President and Chief Executive Officer
with a copy to Xxxxx Xxxxxxx, Xxxxxxxxx & Xxxxxxx LLP, The New York Times Building, 000 Xxxxxx
Xxxxxx, Xxx Xxxx, X.X. 00000.
12. Governing Law; Construction. This Agreement and any claim, counterclaim or
dispute of any kind or nature whatsoever arising out of or in any way relating to this Agreement
(“Claim”), directly or indirectly, shall be governed by, and construed in accordance with,
the laws of the State of New York. The section headings in this Agreement have been inserted as a
matter of convenience of reference and are not a part of this Agreement.
- 31 -
13. Submission to Jurisdiction. Except as set forth below, no Claim may be commenced,
prosecuted or continued in any court other than the courts of the State of New York located in the
City and County of New York or in the United States District Court for the Southern District of New
York, which courts shall have exclusive jurisdiction over the adjudication of such matters, and the
Company consents to the jurisdiction of such courts and personal service with respect thereto. The
Company hereby consents to personal jurisdiction, service and venue in any court in which any Claim
arising out of or in any way relating to this Agreement is brought by any third party against any
Underwriter or any indemnified party. Each Underwriter and the Company (on its behalf and, to the
extent permitted by applicable law, on behalf of its shareholders and affiliates) waive all right
to trial by jury in any action, proceeding or counterclaim (whether based upon contract, tort or
otherwise) in any way arising out of or relating to this Agreement. The Company agrees that a
final judgment in any such action, proceeding or counterclaim brought in any such court shall be
conclusive and binding upon the Company and may be enforced in any other courts to the jurisdiction
of which the Company is or may be subject, by suit upon such judgment.
14. Parties at Interest. The Agreement herein set forth has been and is made solely
for the benefit of the Underwriters and the Company and to the extent provided in Section 9 hereof
the controlling persons, partners, directors, officers, members and affiliates referred to in such
Section, and their respective successors, assigns, heirs, personal representatives and executors
and administrators. No other person, partnership, association or corporation (including a
purchaser, as such purchaser, from any of the Underwriters) shall acquire or have any right under
or by virtue of this Agreement.
15. No Fiduciary Relationship. The Company hereby acknowledges that the Underwriters
are acting solely as underwriters in connection with the purchase and sale of the Company’s
securities. The Company further acknowledges that the Underwriters are acting pursuant to a
contractual relationship created solely by this Agreement entered into on an arm’s length basis,
and in no event do the parties intend that the Underwriters act or be responsible as a fiduciary to
the Company, its management, stockholders or creditors or any other person in connection with any
activity that the Underwriters may undertake or have undertaken in furtherance of the purchase and
sale of the Company’s securities, either before or after the date hereof. The Underwriters hereby
expressly disclaim any fiduciary or similar obligations to the Company, either in connection with
the transactions contemplated by this Agreement or any matters leading up to such transactions, and
the Company hereby confirms its understanding and agreement to that effect. The Company and the
Underwriters agree that they are each responsible for making their own independent judgments with
respect to any such transactions and that any opinions or views expressed by the Underwriters to
the Company regarding such transactions, including, but not limited to, any opinions or views with
respect to the price or market for the Company’s securities, do not constitute advice or
recommendations to the Company. The Company and the Underwriters agree that the Underwriters are
acting as principal and not the agent or fiduciary of the Company and no Underwriter has assumed,
and none of them will assume, any advisory responsibility in favor of the Company with respect to
the transactions contemplated hereby or the process leading thereto (irrespective of whether any
Underwriter has advised or is currently advising the Company on other matters). The Company
- 32 -
hereby waives and releases, to the fullest extent permitted by law, any claims that the
Company may have against the Underwriters with respect to any breach or alleged breach of any
fiduciary, advisory or similar duty to the Company in connection with the transactions contemplated
by this Agreement or any matters leading up to such transactions.
16. Counterparts. This Agreement may be signed by the parties in one or more
counterparts which together shall constitute one and the same agreement among the parties.
17. Successors and Assigns. This Agreement shall be binding upon the Underwriters and
the Company and their successors and assigns and any successor or assign of any substantial portion
of the Company’s and any of the Underwriters’ respective businesses and/or assets.
18. Miscellaneous. UBS, an indirect, wholly owned subsidiary of UBS AG, is not a bank
and is separate from any affiliated bank, including any U.S. branch or agency of UBS AG. Because
UBS is a separately incorporated entity, it is solely responsible for its own contractual
obligations and commitments, including obligations with respect to sales and purchases of
securities. Securities sold, offered or recommended by UBS are not deposits, are not insured by
the Federal Deposit Insurance Corporation, are not guaranteed by a branch or agency, and are not
otherwise an obligation or responsibility of a branch or agency.
[The Remainder of This Page Intentionally Left Blank; Signature Page Follows]
- 33 -
If the foregoing correctly sets forth the understanding between the Company and the several
Underwriters, please so indicate in the space provided below for that purpose, whereupon this
Agreement and your acceptance shall constitute a binding agreement between the Company and the
Underwriters, severally.
| Very truly yours, TRUSTMARK CORPORATION |
||||
| By: | /s/ Xxxxxxx X. Xxxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxxx | |||
| Title: | Chairman, President and Chief
Executive Officer |
|||
| Accepted and agreed to as of the date first above written, on behalf of itself and the other several Underwriters named in Schedule A |
UBS Securities LLC
Xxxxx, Xxxxxxxx & Xxxxx, Inc.
Xxxxxxx X’Xxxxx & Partners, L.P.
Xxxxx, Xxxxxxxx & Xxxxx, Inc.
Xxxxxxx X’Xxxxx & Partners, L.P.
By: UBS Securities LLC
| By: | /s/ Xxxxxx Xxxxx III | |||
| Name: | Xxxxxx Xxxxx III | |||
| Title: | Managing Director | |||
| By: | /s/ Xxxxxx Xxxxxxx | |||
| Name: | Xxxxxx Xxxxxxx | |||
| Title: | Director | |||
| Accepted and agreed to as of the date first above written, on behalf of itself and the other several Underwriters named in Schedule A |
X.X. Xxxxxx Securities Inc.
Xxxxx, Xxxxxxxx & Xxxxx, Inc.
Xxxxxxx X’Xxxxx & Partners, L.P.
Xxxxx, Xxxxxxxx & Xxxxx, Inc.
Xxxxxxx X’Xxxxx & Partners, L.P.
By: X.X. Xxxxxx Securities Inc.
| By: | /s/ Xxxxx Xxxxx | |||
| Name: | Xxxxx Xxxxx | |||
| Title: | Executive Director | |||
SCHEDULE A
| Number of | ||||
| Underwriter | Firm Shares | |||
UBS SECURITIES LLC |
2,702,704 | |||
X.X. XXXXXX
SECURITIES INC. |
1,351,352 | |||
XXXXX,
XXXXXXXX & XXXXX, INC. |
675,675 | |||
SANDLER X’XXXXX & PARTNERS, L.P. |
675,675 | |||
Total |
5,405,406 | |||
SCHEDULE B
None
SCHEDULE C
| 1. | Trustmark National Bank | |
| 2. | F. S. Corporation | |
| 3. | First Building Corporation | |
| 4. | Somerville Bank & Trust Company | |
| 5. | Trustmark Preferred Capital Trust I | |
| 6. | Republic Bancshares Capital Trust I | |
| 7. | Trustmark Securities, Inc. | |
| 8. | The Xxxxxxxx Insurance Agency, Inc. | |
| 9. | Trustmark Investment Advisors, Inc. | |
| 10. | TRMK Risk Management, Inc. | |
| 11. | Xxxxxx-Xxxxx, Incorporated |
Lock-Up Agreement
, 2009
UBS Securities LLC
Together with the other Underwriters
named in Schedule A to the Underwriting Agreement
referred to herein
Together with the other Underwriters
named in Schedule A to the Underwriting Agreement
referred to herein
c/o UBS Securities LLC
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Ladies and Gentlemen:
This Lock-Up Agreement is being delivered to you in connection with the proposed Underwriting
Agreement (the “Underwriting Agreement”) to be entered into by Trustmark Corporation, a
Mississippi corporation (the “Company”), and you and the other underwriters named in
Schedule A to the Underwriting Agreement, with respect to the public offering (the
“Offering”) of common stock, with no par value per share, of the Company (the “Common
Stock”).
In order to induce you to enter into the Underwriting Agreement, the undersigned agrees that,
for a period (the “Lock-Up Period”) beginning on the date hereof and ending on, and
including, the date that is 90 days after the date of the final prospectus supplement relating to
the Offering, the undersigned will not, without the prior written consent of UBS Securities LLC,
(i) sell, offer to sell, contract or agree to sell, hypothecate, pledge, grant any option to
purchase or otherwise dispose of or agree to dispose of, directly or indirectly, or file (or
participate in the filing of) a registration statement with the Securities and Exchange Commission
(the “Commission”) in respect of, or establish or increase a put equivalent position or
liquidate or decrease a call equivalent position within the meaning of Section 16 of the Securities
Exchange Act of 1934, as amended, and the rules and regulations of the Commission promulgated
thereunder (the “Exchange Act”) with respect to, any Common Stock or any other securities
of the Company that are substantially similar to Common Stock, or any securities convertible into
or exchangeable or exercisable for, or any warrants or other rights to purchase, the foregoing,
(ii) enter into any swap or other arrangement that transfers to another, in whole or in part, any
of the economic consequences of ownership of Common Stock or any other securities of the Company
that are substantially similar to Common Stock, or any securities convertible into or exchangeable
or exercisable for, or any warrants or other rights to purchase, the foregoing, whether any such
transaction is to be settled by delivery of Common Stock or such other securities, in cash or
otherwise or (iii) publicly announce an intention to effect any transaction specified in clause (i)
or (ii). The foregoing sentence shall not apply to (a) the registration of the
A-1
offer and sale of Common Stock as contemplated by the Underwriting Agreement and the sale of the
Common Stock to the Underwriters (as defined in the Underwriting Agreement) in the Offering, (b)
bona fide gifts, provided the recipient thereof agrees in writing with the Underwriters to be bound
by the terms of this Lock-Up Agreement, (c) dispositions to any trust for the direct or indirect
benefit of the undersigned and/or the immediate family of the undersigned, provided that such trust
agrees in writing with the Underwriters to be bound by the terms of this Lock-Up Agreement, (d)
sales or other transfers of Common Stock in payment of the exercise price for options to purchase
Common Stock or for payment of taxes required to be paid upon the exercise of options to purchase
Common Stock, any such options having been issued pursuant to the terms of the Company’s existing
employee or director stock incentive plans as described (or incorporated by reference) in the
preliminary prospectus supplement relating to the Offering or (e) the vesting of restricted shares
of Common Stock pursuant to previous grants of restricted stock awards and sales or other transfers
of such shares as necessary to make payment of taxes required to be paid upon such vesting, any
such restricted stock having been issued pursuant to the terms of the Company’s existing employee
or director stock incentive plans as described (or incorporated by reference) in the preliminary
prospectus supplement relating to the Offering, provided that in each case the undersigned does not
voluntarily effect any optional public filing or report regarding such transfers, including but not
limited to reports on Form 4 or during the Lock-Up Period on Form 5 pursuant to Section 16 of the
Securities Exchange Act of 1934, as amended, that are also permitted to be provided at a later time
on Form 5. For purposes of this paragraph, “immediate family” shall mean the undersigned and the
spouse, any lineal descendent, father, mother, brother or sister of the undersigned.
In addition, the undersigned hereby waives any rights the undersigned may have to require
registration of Common Stock in connection with the filing of a registration statement relating to
the Offering. The undersigned further agrees that, for the Lock-Up Period, the undersigned will
not, without the prior written consent of UBS Securities LLC, make any demand for, or exercise any
right with respect to, the registration of Common Stock or any securities convertible into or
exercisable or exchangeable for Common Stock, or warrants or other rights to purchase Common Stock
or any such securities.
Notwithstanding the above, if (a) during the period that begins on the date that is fifteen
(15) calendar days plus three (3) business days before the last day of the Lock-Up Period and ends
on the last day of the Lock-Up Period, the Company issues an earnings release or material news or a
material event relating to the Company occurs; or (b) prior to the expiration of the Lock-Up
Period, the Company announces that it will release earnings results during the sixteen (16) day
period beginning on the last day of the Lock-Up Period, then the restrictions imposed by this
Lock-Up Agreement shall continue to apply until the expiration of the date that is fifteen (15)
calendar days plus three (3) business days after the date on which the issuance of the earnings
release or the material news or material event occurs.
The undersigned hereby confirms that the undersigned has not, directly or indirectly, taken,
and hereby covenants that the undersigned will not, directly or indirectly, take, any action
designed, or which has constituted or will constitute 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 shares of Common Stock.
A-2
The undersigned hereby authorizes the Company and its transfer agent, during the Lock-Up
Period, to decline the transfer of or to note stop transfer restrictions on the stock register and
other records relating to shares of Common Stock or other securities subject to this Lock-Up
Agreement of which the undersigned is the record holder, and, with respect to shares of Common
Stock or other securities subject to this Lock-Up Agreement of which the undersigned is the
beneficial owner but not the record holder, the undersigned hereby agrees to cause such record
holder to authorize the Company and its transfer agent, during the Lock-Up Period, to decline the
transfer of or to note stop transfer restrictions on the stock register and other records relating
to such shares or other securities.
* * *
A-3
If (i) the Company notifies you in writing that it does not intend to proceed with the
Offering, (ii) the registration statement filed with the Commission with respect to the Offering is
withdrawn or (iii) for any reason the Underwriting Agreement shall be terminated prior to the “time
of purchase” (as defined in the Underwriting Agreement), this Lock-Up Agreement shall be terminated
and the undersigned shall be released from its obligations hereunder.
| Yours very truly, |
||||
| Name: | ||||
X-0
XXXXXXX X-0
LIST OF PARTIES TO EXECUTE LOCK-UP AGREEMENTS
| Name | Position | |
1. Xxxxxxx X. Xxxxxxx
|
Chairman, President and Chief Executive Officer, Trustmark Corporation | |
2. Xxxxx X. Xxxxx
|
Treasurer and Principal Financial Officer, Trustmark Corporation | |
3. X. Xxxxxx Xxxxxxx III
|
Secretary, Trustmark Corporation | |
4. Xxxxxxx X. Xxxxxx
|
Assistant Secretary, Trustmark Corporation | |
5. Xxxxxxxx (Xxxxx) X. Xxxxx
|
Director, Trustmark Corporation | |
6. Xxxx X. Xxxx. Jr.
|
Director, Trustmark Corporation | |
7. Xxxxxxx X. Xxxxxxx, Xx.
|
Director, Trustmark Corporation | |
8. Xxxxxx X. Xxxxxxx
|
Director, Trustmark Corporation | |
9. Xxxxx X. Xxxxxx XX
|
Director, Trustmark Corporation | |
10. Xxxx X. XxXxxxxxxx
|
Director, Trustmark Corporation | |
11. Xxxxxxx X. Xxxxxxx
|
Director, Trustmark Corporation | |
12. R. Xxxxxxx Xxxxxxxxxx
|
Director, Trustmark Corporation | |
13. Xxxxx X. Xxxxxx Xx.
|
Director, Trustmark Corporation | |
14. Xxxxxxx X. Xxxxxxxx
|
Director, Trustmark Corporation | |
15. Xxxxxxx X. Xxxxx III
|
Director, Trustmark Corporation | |
16. Xxxx X. Xxxxxx
|
Director, Trustmark National Bank | |
17. Xxxxx X. Xxxxxxxxx
|
Director, Trustmark National Bank | |
18. Xxxxxxx Xxxxx
|
Director, Trustmark National Bank | |
19. Xxxxxxx X. Xxxxxxx
|
Director, Trustmark National Bank |
A-1-1
| Name | Position | |
20. Xxxxx Xxxx, Xx.
|
Director, Trustmark National Bank | |
21. Xxxxxx X. Host
|
Director and Executive Officer, Trustmark National Bank | |
22. Xxxxx X. Xxxxxx
|
Director and Executive Officer, Trustmark National Bank | |
23. Xxxxx X. Xxxxx
|
Executive Officer, Trustmark National Bank | |
24. Xxxxxx X. Xxxx
|
Executive Officer, Trustmark National Bank | |
25. Xxxxx Xxxxxx
|
Executive Officer, Trustmark National Bank | |
26. Xxxxx X. Xxxxxx, Xx.
|
Executive Officer, Trustmark National Bank | |
27. W. Xxx Xxxxxxx
|
Executive Officer, Trustmark National Bank | |
28. Xxxxx X. Xxxxx
|
Executive Officer, Trustmark National Bank | |
29. Xxxxxxx X. Xxxxxx-Xxxxxx
|
Executive Officer, Trustmark National Bank | |
30. Xxxxxxx X. Xxxx, Xx.
|
Executive Officer, Trustmark National Bank | |
31. C. Xxxxx Xxxxx
|
Executive Officer, Trustmark National Bank |
A-1-2
EXHIBIT B
FORM OF OPINION OF XXXXXXXXX & XXXXXXX LLP
| 1. | The Company has duly executed and delivered the Underwriting Agreement. | |
| 2. | The Shares are duly listed, and admitted and authorized for trading, on the NASDAQ Global Select Market. | |
| 3. | Except as to the financial statements, including the notes thereto, and other financial and statistical data included in the Registration Statement or the Prospectus, as to which we express no opinion, the Registration Statement as of its effective date and the Prospectus as of its date complied as to form in all material respects with the requirements of the Act. | |
| 4. | To our knowledge, (i) the Company is not an “ineligible issuer” (as defined in Rule 405 under the Act) as of the eligibility determination date for purposes of Rules 164 and 433 under the Act with respect to the offering of the Shares contemplated by the Registration Statement and (ii) the Registration Statement constitutes an “automatic shelf registration statement” (as defined in Rule 405 under the Act). | |
| 5. | The Registration Statement has become effective under the Act, and, to our knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or threatened under the Act, and any required filing of the Prospectus and any supplement thereto pursuant to Rule 424 under the Act has been made in the manner and within the time period required by such Rule 424 and in compliance with Rule 430A under the Act. | |
| 6. | No consent, approval, authorization or other action by or filing with any governmental agency or instrumentality of the State of New York or the United States of America is required on the part of the Company for the issuance and sale of the Shares or the execution and delivery of the Underwriting Agreement or the consummation of the transactions contemplated thereby in accordance with the terms thereof, except those required under Federal and state securities laws. | |
| 7. | The issuance and sale of the Shares and the execution and delivery of the Underwriting Agreement by the Company and the consummation by the Company of the transactions contemplated thereby in accordance with the terms thereof do not and will not (i) violate any New York or Federal statute, law, rule or regulation known to us to which the Company is subject, (ii) breach the provisions of the Company’s Amended Articles of Incorporation or Amended and Restated Bylaws or (iii) breach the provisions of, or cause a default under, any agreement, instrument, judgment or order to which the Company or the Bank is a party and that is listed on Schedule A hereto. | |
| 8. | To our knowledge, (a) there are no legal or governmental proceedings pending or threatened against the Company or the Bank, or to which the Company or the Bank or any of their respective property is subject, which are required to be described in the Registration Statement or Prospectus that are not described as required and (b) there are no agreements, contracts, indentures, leases or other instruments to which the Company or the Bank is a party that are required to be described in the Registration Statement or Prospectus or to be filed as an exhibit to the Registration Statement that are not described or filed as required, as the case may be. | |
| 9. | Neither the Company nor the Bank is and, after giving effect to the offering and sale of the Shares and the application of the proceeds thereof as described in the Prospectus, neither will be an “investment company” or an entity “controlled” by an “investment company,” as such terms are defined in the Investment Company Act of 1940. | |
| 10. | The authorized capital stock of the Company is as set forth under the caption “Capitalization” in the Prospectus; and the authorized capital stock of the Company conforms in all material respects as to legal matters to the description thereof contained in the Prospectus under the caption “Description of Capital Stock.” The statements in the Prospectus under the caption “Material United States Federal Income and Estate Tax Consequences to Non-U.S. Holders” and in the Company’s Annual Report on Form 10-K/A (Amendment No. 1) for the fiscal year ended December 31, 2008 under the heading “Business—Supervision and Regulation,” as modified by the statements in the Prospectus under the caption “Summary—Recent Developments—FDIC Insurance Assessments,” insofar as such statements constitute summaries of the laws, regulations, agreements or other legal documents referred to therein, are accurate in all material respects and fairly summarize the matters referred to therein. | |
| 11. | Except for satisfied registration rights in respect of the warrant to purchase 1,647,931 shares of Common Stock issued to the United States Department of the Treasury in connection with the Company’s sale of 215,000 shares of Fixed Rate Cumulative Perpetual Preferred Stock, Series A (no par), liquidation preference $1,000 per share and the shares underlying such warrant, no person has the right, pursuant to the terms of any contract, agreement or other instrument described in or filed as an exhibit to the Registration Statement or any Incorporated Document or otherwise known to us, to cause the Company to register under the Act any shares of Common Stock or shares of any other capital stock or other equity interest in the Company or to include any such shares or interest in the Registration Statement or the offering contemplated thereby. |
In addition, in accordance with our understanding with the Company as to the scope of our
services in connection with the offering of the Shares, as counsel to the Company, we reviewed the
Registration Statement and the Prospectus and participated in discussions with your representatives
and those of the Company, your counsel and the Company’s independent registered public accountants.
On the basis of the information which was reviewed by us in the course of the performance of the
services referred to above, considered in the light of our understanding of the applicable law and
the experience we have gained through our practice under the Federal securities laws, we confirm to
you that nothing which came to our attention in the course of such review has caused us to believe
that (i) the Registration Statement, at the time the Registration
Statement became effective, contained any untrue statement of a material fact or omitted to state
any material fact required to be stated therein or necessary to make the statements therein not
misleading, (ii) the Prospectus, as of the date of the Prospectus Supplement or as of the date
hereof, contained or contains any untrue statement of a material fact or omitted or omits to state
any material fact necessary to make the statements therein, in the light of the circumstances under
which they were made, not misleading or (iii) the Disclosure Package, as of the Applicable Time,
when taken together with the Pricing Information, 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.
B-1
EXHIBIT C
FORM OF OPINION OF BRUNINI, GRANTHAM, GROWER & XXXXX, PLLC
| 1. | The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Mississippi, with full corporate power and authority to own, lease and operate its properties and conduct its business as described in the Registration Statement, the Pre-Pricing Prospectus and the Prospectus, to execute and deliver the Underwriting Agreement and to perform its obligations thereunder, including, without limitation, to issue, sell and deliver the Shares as contemplated by the Underwriting Agreement. |
| 2. | The Company is duly registered as a bank holding company under the Bank Holding Company Act of 1956, as amended. |
| 3. | Trustmark National Bank (the “Bank”) has been duly organized and is validly existing as a national banking association in good standing under the laws of the United States of America, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement, the Pre-Pricing Prospectus and the Prospectus. |
| 4. | The Company and the Bank are each duly qualified to do business as a foreign corporation and are in good standing in each jurisdiction where the ownership or leasing of their respective properties or the conduct of their respective businesses requires such qualification, except where the failure to be so qualified and in good standing would not, individually or in the aggregate, have a Material Adverse Effect (as defined in the Underwriting Agreement). |
| 5. | Neither the Company nor any of its Subsidiaries (as defined in the Underwriting Agreement) is a party to or otherwise subject to any consent decree, memorandum of understanding, written commitment or other supervisory agreement with any Banking Regulator (as defined in the Underwriting Agreement) or any other federal or state agency or authority, except where being a party to or subject to such consent decree, memorandum of understanding, written commitment or other supervisory agreement would not result in a Material Adverse Effect. |
| 6. | The Underwriting Agreement has been duly authorized, executed and delivered by the Company. |
| 7. | The Shares have been duly authorized and validly issued and are fully paid and non-assessable. |
| 8. | The Shares are free of statutory preemptive rights and, to our knowledge, contractual preemptive rights, resale rights, rights of first refusal and similar rights; and the certificates for the Shares are in due and proper form. |
| 9. | The capital stock of the Company, including the Shares, conforms in all material respects to the description thereof, if any, contained in the Registration Statement, the Pre-Pricing Prospectus and the Prospectus. |
| 10. | No approval, authorization, consent or order under any federal banking law, the laws of the State of Mississippi or under the Mississippi Business Corporation Act or approval, authorization, consent of or filing with any Mississippi governmental or regulatory commission, board, body, authority or agency, or approval of the shareholders of the Company, is required in connection with the issuance and sale of the Shares or with the consummation by the Company of the transactions contemplated by the Underwriting Agreement other than registration of the Shares under the Act, which has been effected (except that we express no opinion as to any necessary qualification under the state securities or blue sky laws of the various jurisdictions in which the Shares are being offered by the Underwriters and we express no opinion with respect to the Conduct Rules of FINRA (as defined in the Underwriting Agreement)). |
| 11. | The execution, delivery and performance of the Underwriting Agreement by the Company, the issuance and sale of the Shares and the consummation of the transactions contemplated by the Underwriting Agreement do not and will not result in any breach or violation of or constitute a default under (nor constitute any event which, with notice, lapse of time or both, would result in any breach or violation of or constitute a default under or give the holder of any indebtedness (or a person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a part of such indebtedness under) (or result in the creation or imposition of a lien, charge or encumbrance on any property or assets of the Company or any Subsidiary pursuant to) (i) the charter or bylaws of the Company or any Subsidiary, (ii) the laws of the State of Mississippi or the Mississippi Business Corporation Act or (iii) any Mississippi decree, judgment or order applicable to the Company or any Subsidiary or any of their respective properties, which decree, judgment or order is known by us and which would, individually or in the aggregate, be expected to have a material adverse effect on the business, properties, financial condition, results of operations or prospects of the Company and the Subsidiaries taken as a whole. |
C-1
EXHIBIT D
FORM OF OPINION OF X. XXXXXX XXXXXXX III, SECRETARY OF THE COMPANY
AND GENERAL COUNSEL OF TRUSTMARK NATIONAL BANK
AND GENERAL COUNSEL OF TRUSTMARK NATIONAL BANK
| 1. | All of the outstanding shares of capital stock of the Company have been duly authorized and validly issued, are fully paid and non-assessable and are free of statutory preemptive rights and contractual preemptive rights, resale rights, rights of first refusal and similar rights. |
| 2. | All of the outstanding shares of capital stock of the Bank have been duly authorized and validly issued, are fully paid and non-assessable and, except as otherwise disclosed in the Registration Statement (excluding the exhibits thereto), the Pre-Pricing Prospectus and the Prospectus, are owned by the Company, in each case subject to no security interest, other encumbrance or adverse claim. |
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EXHIBIT E
OFFICERS’ CERTIFICATE
Each of the undersigned, Xxxxxxx X. Xxxxxxx, Chairman, President and Chief Executive Officer
of Trustmark Corporation, a Mississippi corporation (the “Company”), and Xxxxx X. Xxxxx, Treasurer
and Principal Financial Officer of the Company, on behalf of the Company, does hereby certify
pursuant to Section 6(i) of that certain Underwriting Agreement dated
December 1, 2009 (the
“Underwriting Agreement”) between the Company and, on behalf of the several Underwriters
named therein, UBS Securities LLC and X.X. Xxxxxx Securities Inc., that:
| 1. | He has reviewed the Registration Statement, each Pre-Pricing Prospectus, the Prospectus and each Permitted Free Writing Prospectus. | |
| 2. | The representations and warranties of the Company as set forth in the Underwriting Agreement are true and correct as of the date hereof and as if made on the date hereof. | |
| 3. | The Company has performed all of its obligations under the Underwriting Agreement as are to be performed at or before the date hereof. | |
| 4. | The conditions set forth in paragraph (h) of Section 6 of the Underwriting Agreement have been met. |
Capitalized terms used herein without definition shall have the respective meanings ascribed
to them in the Underwriting Agreement.
In Witness Whereof, the undersigned have hereunto set their hands on this [date].
| Name: | Xxxxxxx X. Xxxxxxx | |||
| Title: | Chairman, President and Chief Executive Officer |
|||
| Name: | Xxxxx X. Xxxxx | |||
| Title: | Treasurer and Principal Financial Officer | |||
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