SYNOVUS FINANCIAL CORP. 255,000,000 Shares of Common Stock, $1.00 par value Underwriting Agreement
Exhibit
1.1
Execution Version
255,000,000 Shares of Common Stock, $1.00 par value
Underwriting Agreement
Underwriting Agreement
April 28, 2010
X.X. Xxxxxx Securities Inc.
as Representative of the several Underwriters
listed in Schedule 1 hereto
listed in Schedule 1 hereto
c/o X.X. Xxxxxx Securities Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Synovus Financial Corp., a Georgia corporation (the “Company”), proposes to issue and sell to
the several Underwriters listed in Schedule 1 hereto (the “Underwriters”), for whom you are acting
as representative (the “Representative”), an aggregate of 255,000,000 shares (the “Underwritten
Shares”) of common stock, par value $1.00 per share, of the Company (the “Stock”) and, at the
option of the Underwriters, up to an additional 38,250,000 shares (the “Option Shares”) of Stock.
The Underwritten Shares and the Option Shares are herein referred to as the “Shares.”
The Company also proposes, subject to the terms of this Agreement, the applicable rules,
regulations and interpretations of FINRA (as defined below) and all other applicable laws, rules
and regulations, that 12,750,000 of the Underwritten Shares (the “Directed Shares”) shall be
reserved for sale by the Underwriters to certain officers, directors and other persons designated
by the Company (“Directed Share Purchasers”). To the extent that sales of Directed Shares are not
orally confirmed for purchase by Directed Share Purchasers by 9:00 A.M., New York City time, on the
first trading day after the date of this Agreement, the Directed Shares will be offered to the
public as part of the Offering.
The Company hereby confirms its agreement with the several Underwriters concerning the
purchase and sale of the Shares, as follows:
1. Registration Statement. The Company has prepared and filed with the Securities and
Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended, and the rules
and regulations of the Commission thereunder (collectively, the “Securities Act”), a registration
statement (File No. 333-166300), including a prospectus, relating to the Shares. Such registration
statement, as amended at the time it became effective, including the information, if any, deemed
pursuant to Rule 430A, 430B or 430C under the Securities Act to be part of the registration
statement at the time of its effectiveness (“Rule 430 Information”), is referred to herein as the
“Registration Statement”; and as used herein, the term “Preliminary Prospectus” means each
prospectus included in such registration statement (and any amendments
thereto) before effectiveness, any prospectus filed with the Commission pursuant to Rule
424(a) under the Securities Act and the prospectus included in the Registration Statement at the
time of
its effectiveness that omits Rule 430 Information, and the term “Prospectus” means the prospectus
in the form first used (or made available upon request of purchasers pursuant to Rule 173 under the
Securities Act) in connection with confirmation of sales of the Shares. If the Company has filed
an abbreviated registration statement pursuant to Rule 462(b) under the Securities Act (the “Rule
462 Registration Statement”), then any reference herein to the term “Registration Statement” shall
be deemed to include such Rule 462 Registration Statement. Any reference in this Agreement to the
Registration Statement, any Preliminary Prospectus or the Prospectus shall be deemed to refer to
and include the documents incorporated by reference therein pursuant to Item 12 of Form S-3 under
the Securities Act, as of the effective date of the Registration Statement or the date of such
Preliminary Prospectus or the Prospectus, as the case may be, and any reference to “amend,”
“amendment” or “supplement” with respect to the Registration Statement, any Preliminary Prospectus
or the Prospectus shall be deemed to refer to and include any documents filed after such date under
the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission
thereunder (collectively, the “Exchange Act”) that are deemed to be incorporated by reference
therein. Capitalized terms used but not defined herein shall have the meanings given to such terms
in the Registration Statement and the Prospectus.
At or prior to the Applicable Time (as defined below), the Company had prepared the following
information (collectively with the pricing term sheet set forth on Annex A, the “Pricing Disclosure
Package”): a Preliminary Prospectus dated April 26, 2010 and each “free-writing prospectus” (as
defined pursuant to Rule 405 under the Securities Act) listed on Annex A hereto.
“Applicable Time” means 7:30 p.m., New York City time, on April 28, 2010.
2. Purchase of the Shares by the Underwriters.
(a) The Company agrees to issue and sell the Underwritten Shares to the several Underwriters
as provided in this Agreement, and each Underwriter, on the basis of the representations,
warranties and agreements set forth herein and subject to the conditions set forth herein, agrees,
severally and not jointly, to purchase from the Company the respective number of Underwritten
Shares set forth opposite such Underwriter’s name in Schedule 1 hereto at a price per share (the
“Purchase Price”) of $2.62625.
In addition, the Company agrees to issue and sell the Option Shares to the several
Underwriters as provided in this Agreement, and the Underwriters, on the basis of the
representations, warranties and agreements set forth herein and subject to the conditions set forth
herein, shall have the option to purchase, severally and not jointly, from the Company the Option
Shares at the Purchase Price less an amount per share equal to any dividends or distributions
declared by the Company and payable on the Underwritten Shares but not payable on the Option
Shares.
If any Option Shares are to be purchased, the number of Option Shares to be purchased by each
Underwriter shall be the number of Option Shares which bears the same ratio to the aggregate number
of Option Shares being purchased as the number of Underwritten Shares set forth opposite the name
of such Underwriter in Schedule 1 hereto (or such number increased as
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set forth in Section 10 hereof) bears to the aggregate number of Underwritten Shares being
purchased from the Company by the several Underwriters, subject, however, to such adjustments to
eliminate any fractional Shares as the Representative in its sole discretion shall make.
The Underwriters may exercise the option to purchase Option Shares at any time in whole, or
from time to time in part, on or before the thirtieth day following the date of the Prospectus, by
written notice from the Representative to the Company. Such notice shall set forth the aggregate
number of Option Shares as to which the option is being exercised and the date and time when the
Option Shares are to be delivered and paid for, which may be the same date and time as the Closing
Date (as hereinafter defined) but shall not be earlier than the Closing Date or later than the
tenth full business day (as hereinafter defined) after the date of such notice (unless such time
and date are postponed in accordance with the provisions of Section 10 hereof). Any such notice
shall be given at least two business days prior to the date and time of delivery specified therein.
(b) The Company understands that the Underwriters intend to make a public offering of the
Shares as soon after the effectiveness of this Agreement as in the judgment of the Representative
is advisable, and initially to offer the Shares on the terms set forth in the Prospectus. The
Company acknowledges and agrees that the Underwriters may offer and sell Shares to or through any
affiliate of an Underwriter.
(c) Payment for the Shares shall be made by wire transfer in immediately available funds to
the account specified by the Company to the Representative in the case of the Underwritten Shares,
at the offices of Wachtell, Lipton, Xxxxx & Xxxx, 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, XX 00000 at 10:00
A.M., New York City time, on May 4, 2010, or at such other time or place on the same or such other
date, not later than the fifth business day thereafter, as the Representative and the Company may
agree upon in writing or, in the case of the Option Shares, on the date and at the time and place
specified by the Representative in the written notice of the Underwriters’ election to purchase
such Option Shares. The time and date of such payment for the Underwritten Shares is referred to
herein as the “Closing Date,” and the time and date for such payment for the Option Shares, if
other than the Closing Date, is herein referred to as the “Additional Closing Date.”
Payment for the Shares to be purchased on the Closing Date or the Additional Closing Date, as
the case may be, shall be made against delivery to the Representative for the respective accounts
of the several Underwriters of the Shares to be purchased on such date in such names and in such
denominations as the Representative shall request in writing not later than two full business days
prior to the Closing Date or the Additional Closing Date, as the case may be, with any transfer
taxes payable in connection with the sale of such Shares duly paid by the Company. Delivery of the
Shares shall be made through the facilities of The Depository Trust Company (“DTC”) unless the
Representative shall otherwise instruct. The certificates for the Shares will be made available
for inspection and packaging by the Representative at the office of DTC or its designated custodian
not later than 1:00 P.M., New York City time, on the business day prior to the Closing Date or the
Additional Closing Date, as the case may be.
(d) The Company acknowledges and agrees that the Underwriters are acting solely in the
capacity of an arm’s length contractual counterparty to the Company with respect to the
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offering of Shares contemplated hereby (including in connection with determining the terms of
the offering) and not as a financial advisor or a fiduciary to, or an agent of, the Company or any
other person. Additionally, neither the Representative nor any other Underwriter is advising the
Company or any other person as to any legal, tax, investment, accounting or regulatory matters in
any jurisdiction. The Company shall consult with its own advisors concerning such matters and
shall be responsible for making its own independent investigation and appraisal of the transactions
contemplated hereby, and the Underwriters shall have no responsibility or liability to the Company
with respect thereto. Any review by the Underwriters of the Company, the transactions contemplated
hereby or other matters relating to such transactions will be performed solely for the benefit of
the Underwriters and shall not be on behalf of the Company.
3. Representations and Warranties of the Company. The Company represents and warrants
to each Underwriter that:
(a) Preliminary Prospectus. No order preventing or suspending the use of any Preliminary
Prospectus has been issued by the Commission, and each Preliminary Prospectus included in the
Pricing Disclosure Package, at the time of filing thereof, complied in all material respects with
the Securities Act, and no Preliminary Prospectus, at the time of filing thereof, contained any
untrue statement of a material fact or omitted to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they were made, not
misleading; provided that the Company makes no representation and warranty with respect to
any statements or omissions made in reliance upon and in conformity with information relating to
any Underwriter furnished to the Company in writing by such Underwriter through the Representative
expressly for use in any Preliminary Prospectus, it being understood and agreed that the only such
information furnished by any Underwriter consists of the information described as such in Section
7(b) hereof.
(b) Pricing Disclosure Package. The Pricing Disclosure Package as of the Applicable Time did
not, and as of the Closing Date and as of the Additional Closing Date, as the case may be, will
not, contain any untrue statement of a material fact or omit to state a material fact necessary in
order to make the statements therein, in the light of the circumstances under which they were made,
not misleading; provided that the Company makes no representation and warranty with respect
to any statements or omissions made in reliance upon and in conformity with information relating to
any Underwriter furnished to the Company in writing by such Underwriter through the Representative
expressly for use in such Pricing Disclosure Package, it being understood and agreed that the only
such information furnished by any Underwriter consists of the information described as such in
Section 7(b) hereof.
(c) Issuer Free Writing Prospectus. Other than the Registration Statement, the Preliminary
Prospectus and the Prospectus, the Company (including its agents and representatives, other than
the Underwriters in their capacity as such) has not prepared, used, authorized, approved or
referred to and will not prepare, use, authorize, approve or refer to any “written communication”
(as defined in Rule 405 under the Securities Act) that constitutes an offer to sell or solicitation
of an offer to buy the Shares (each such communication by the Company or its agents and
representatives (other than a communication referred to in clause (i) below) an “Issuer Free
Writing Prospectus”) other than (i) any document not constituting a prospectus pursuant to Section
2(a)(10)(a) of the Securities Act or Rule 134 under the Securities
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Act or (ii) the documents listed on Annex A hereto, each electronic road show and any other
written communications approved in writing in advance by the Representative. Each such Issuer Free
Writing Prospectus complied in all material respects with the Securities Act, has been or will be
(within the time period specified in Rule 433) filed in accordance with the Securities Act (to the
extent required thereby) and, when taken together with the Preliminary Prospectus accompanying, or
delivered prior to delivery of, such Issuer Free Writing Prospectus, did not, and as of the Closing
Date and as of the Additional Closing Date, as the case may be, will not, contain any untrue
statement of a material fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were made, not misleading;
provided that the Company makes no representation or warranty with respect to any
statements or omissions made in each such Issuer Free Writing Prospectus or Preliminary Prospectus
in reliance upon and in conformity with information relating to any Underwriter furnished to the
Company in writing by such Underwriter through the Representative expressly for use in such Issuer
Free Writing Prospectus or Preliminary Prospectus, it being understood and agreed that the only
such information furnished by any Underwriter consists of the information described as such in
Section 7(b) hereof.
(d) Registration Statement and Prospectus. The Registration Statement is an “automatic shelf
registration statement” as defined under Rule 405 of the Securities Act that has been filed with
the Commission not earlier than three years prior to the date hereof; and no notice of objection of
the Commission to the use of such registration statement or any post-effective amendment thereto
pursuant to Rule 401(g)(2) under the Securities Act has been received by the Company. No order
suspending the effectiveness of the Registration Statement has been issued by the Commission, and
no proceeding for that purpose or pursuant to Section 8A of the Securities Act against the Company
or related to the offering of the Shares has been initiated or threatened by the Commission; as of
the applicable effective date of the Registration Statement and any post-effective amendment
thereto, the Registration Statement and any such post-effective amendment complied and will comply
in all material respects with the Securities Act, and did not and will not contain any untrue
statement of a material fact or omit to state a material fact required to be stated therein or
necessary in order to make the statements therein not misleading; and as of the date of the
Prospectus and any amendment or supplement thereto and as of the Closing Date and as of the
Additional Closing Date, as the case may be, the Prospectus will not contain any untrue statement
of a material fact or omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not misleading;
provided that the Company makes no representation and warranty with respect to any
statements or omissions made in reliance upon and in conformity with information relating to any
Underwriter furnished to the Company in writing by such Underwriter through the Representative
expressly for use in the Registration Statement and the Prospectus and any amendment or supplement
thereto, it being understood and agreed that the only such information furnished by any Underwriter
consists of the information described as such in Section 7(b) hereof.
(e) Incorporated Documents. The documents incorporated by reference in the Registration
Statement, the Prospectus and the Pricing Disclosure Package, when they were filed with the
Commission conformed in all material respects to the requirements of the Exchange Act, and none of
such documents contained any untrue statement of a material fact or omitted to state a material
fact necessary to make the statements therein, in the light of the circumstances
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under which they were made, not misleading; and any further documents so filed and
incorporated by reference in the Registration Statement, the Prospectus or the Pricing Disclosure
Package, when such documents are filed with the Commission, will conform in all material respects
to the requirements of the Exchange Act and will not contain any untrue statement of a material
fact or omit to state a material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(f) Financial Statements. The financial statements (including the related notes thereto) of
the Company and its consolidated subsidiaries included or incorporated by reference in the
Registration Statement, the Pricing Disclosure Package and the Prospectus comply in all material
respects with the applicable requirements of the Securities Act and the Exchange Act, as
applicable, and present fairly the financial position of the Company and its consolidated
subsidiaries as of the dates indicated and the results of their operations and the changes in their
cash flows for the periods specified; such financial statements have been prepared in conformity
with generally accepted accounting principles in the United States (“GAAP”) applied on a consistent
basis throughout the periods covered thereby, and any supporting schedules included or incorporated
by reference in the Registration Statement present fairly the information required to be stated
therein; and the other financial information included or incorporated by reference in the
Registration Statement, the Pricing Disclosure Package and the Prospectus has been derived from the
accounting records of the Company and its consolidated subsidiaries and presents fairly the
information shown thereby.
(g) No Material Adverse Change. Since the date of the most recent financial statements of the
Company included or incorporated by reference in the Registration Statement, the Pricing Disclosure
Package and the Prospectus, (i) there has not been any change in the capital stock (other than the
issuance of shares of Stock upon exercise of stock options and warrants described as outstanding
in, and the grant of options and awards under existing equity incentive plans described in, the
Registration Statement, the Pricing Disclosure Package and the Prospectus), short-term debt or
long-term debt of the Company or any of its subsidiaries, or any dividend or distribution of any
kind declared, set aside for payment, paid or made by the Company on any class of capital stock, or
any material adverse change, or any development involving a prospective material adverse change, in
or affecting the business, properties, management, financial position, stockholders’ equity,
results of operations or prospects of the Company and its subsidiaries taken as a whole; (ii)
neither the Company nor any of its subsidiaries has entered into any transaction or agreement
(whether or not in the ordinary course of business) that is material to the Company and its
subsidiaries taken as a whole or incurred any liability or obligation, direct or contingent, that
is material to the Company and its subsidiaries taken as a whole; and (iii) neither the Company nor
any of its subsidiaries has sustained any loss or interference with its business that is material
to the Company and its subsidiaries taken as a whole and that is either from fire, explosion, flood
or other calamity, whether or not covered by insurance, or from any labor disturbance or dispute or
any action, order or decree of any court or arbitrator or governmental or regulatory authority,
except in each case as otherwise disclosed in the Registration Statement, the Pricing Disclosure
Package and the Prospectus.
(h) Organization and Good Standing. The Company and each of its subsidiaries are incorporated
and are validly existing and in good standing under the laws of their respective jurisdictions of
organization and, in the case of each of The First National Bank of Jasper, The
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National Bank of South Carolina and Synovus Trust Company, are validly chartered as a national
bank. The Company and each of its subsidiaries are duly qualified to do business and are in good
standing in each jurisdiction in which their respective ownership or lease of property or the
conduct of their respective businesses requires such qualification, and have all power and
authority necessary to own or hold their respective properties and to conduct the businesses in
which they are engaged, except where the failure to be so qualified or in good standing or have
such power or authority would not, individually or in the aggregate, have a material adverse effect
on the business, properties, management, financial position, stockholders’ equity, results of
operations or prospects of the Company and its subsidiaries taken as a whole or on the performance
by the Company of its obligations under this Agreement (a “Material Adverse Effect”). The Company
is duly registered as a bank holding company under the Bank Holding Company Act of 1956, as amended
(the “BHCA”) and is a financial holding company pursuant to Section 4(l) of the BHCA and meets the
applicable requirements for qualification as such. The Company does not own or control, directly
or indirectly, any corporation, association or other entity other than the subsidiaries listed on
Annex B. The Company does not have any significant subsidiaries (as such term is defined in Rule
1-02 of Regulation S-X) (each a “Significant Subsidiary” and, collectively, the “Significant
Subsidiaries”) other those listed as such on Annex B.
(i) Capitalization. The Company has an authorized capitalization as set forth in the
Registration Statement, the Pricing Disclosure Package and the Prospectus under the heading
“Capitalization”; all the outstanding shares of capital stock of the Company have been duly and
validly authorized and issued and are fully paid and non-assessable and are not subject to any
pre-emptive or similar rights; except as described in or expressly contemplated by the Pricing
Disclosure Package and the Prospectus, there are no outstanding rights (including, without
limitation, pre-emptive rights), warrants or options to acquire, or instruments convertible into or
exchangeable for, any shares of capital stock or other equity interest in the Company or any of its
subsidiaries, or any contract, commitment, agreement, understanding or arrangement of any kind
relating to the issuance of any capital stock of the Company or any such subsidiary, any such
convertible or exchangeable securities or any such rights, warrants or options; the capital stock
of the Company conforms in all material respects to the description thereof contained in the
Registration Statement, the Pricing Disclosure Package and the Prospectus; and all the outstanding
shares of capital stock or other equity interests of each subsidiary owned, directly or indirectly,
by the Company have been duly and validly authorized and issued, are fully paid and non-assessable
and are owned directly or indirectly by the Company, free and clear of any lien, charge,
encumbrance, security interest, restriction on voting or transfer or any other claim of any third
party.
(j) Stock Options. With respect to the stock options (the “Stock Options”) granted pursuant
to the stock-based compensation plans of the Company and its subsidiaries (the “Company Stock
Plans”), (i) each Stock Option intended to qualify as an “incentive stock option” under Section 422
of the Code so qualifies, (ii) each grant of a Stock Option was duly authorized no later than the
date on which the grant of such Stock Option was by its terms to be effective (the “Grant Date”) by
all necessary corporate action, including, as applicable, approval by the board of directors of the
Company (or a duly constituted and authorized committee thereof) and any required stockholder
approval by the necessary number of votes or written consents, and the award agreement governing
such grant (if any) was duly executed and
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delivered by each party thereto, (iii) each such grant was made in accordance with the terms
of the Company Stock Plans, the Exchange Act and all other applicable laws and regulatory rules or
requirements, including the rules of the New York Stock Exchange and any other exchange on which
Company securities are traded, and (iv) each such grant was properly accounted for in accordance
with GAAP in the financial statements (including the related notes) of the Company and disclosed in
the Company’s filings with the Commission in accordance with the Exchange Act and all other
applicable laws. The Company has not knowingly granted, and there is no and has been no policy or
practice of the Company of granting, Stock Options prior to, or otherwise coordinating the grant of
Stock Options with, the release or other public announcement of material information regarding the
Company or its subsidiaries or their results of operations or prospects.
(k) Due Authorization. The Company has full right, power and authority to execute and deliver
this Agreement and to perform its obligations hereunder; and all action required to be taken for
the due and proper authorization, execution and delivery by it of this Agreement and the
consummation by it of the transactions contemplated hereby has been duly and validly taken.
(l) Underwriting Agreement. This Agreement has been duly authorized, executed and delivered
by the Company.
(m) The Shares. The Shares to be issued and sold by the Company hereunder have been duly
authorized and, when issued and delivered and paid for as provided herein, will be duly and validly
issued, will be fully paid and nonassessable and will conform to the descriptions thereof in the
Registration Statement, the Pricing Disclosure Package and the Prospectus; and the issuance of the
Shares is not subject to any preemptive or similar rights.
(n) No Violation or Default. Neither the Company nor any of its Significant Subsidiaries is
(i) in violation of its charter or by-laws or similar organizational documents; (ii) in default,
and no event has occurred that, with notice or lapse of time or both, would constitute such a
default, in the due performance or observance of any term, covenant or condition contained in any
indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the
Company or any of its subsidiaries is a party or by which the Company or any of its subsidiaries is
bound or to which any of the property or assets of the Company or any of its subsidiaries is
subject; or (iii) in violation of any law or statute or any judgment, order, rule or regulation of
any court or arbitrator or governmental or regulatory authority, except, in the case of clauses
(ii) and (iii) above, for any such default or violation that would not, individually or in the
aggregate, have a Material Adverse Effect.
(o) No Conflicts. The execution, delivery and performance by the Company of this Agreement,
the issuance and sale of the Shares and the consummation of the transactions contemplated by this
Agreement will not (i) conflict with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, or result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of the Company or any of its subsidiaries
pursuant to, any indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Company or any of its subsidiaries is a party or by which the Company or
any of its subsidiaries is bound or to which any of the property or assets of the Company or any of
its subsidiaries is subject, (ii) result in any violation of the provisions of the
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charter or by-laws or similar organizational documents of the Company or any of its
subsidiaries or (iii) result in the violation of any law or statute or any judgment, order, rule or
regulation of any court or arbitrator or governmental or regulatory authority, except, in the case
of clauses (i) and (iii) above, for any such conflict, breach, violation or default that would not,
individually or in the aggregate, have a Material Adverse Effect.
(p) No Consents Required. No consent, approval, authorization, order, license, registration
or qualification of or with any court or arbitrator or governmental or regulatory authority is
required for the execution, delivery and performance by the Company of this Agreement, the issuance
and sale of the Shares and the consummation of the transactions contemplated by this Agreement,
except as required by the New York Stock Exchange, for the registration of the Shares under the
Securities Act and such consents, approvals, authorizations, orders and registrations or
qualifications as may be required by the Financial Industry Regulatory Authority, Inc. (“FINRA”)
and under applicable state securities laws in connection with the purchase and distribution of the
Shares by the Underwriters.
(q) Legal Proceedings. Except as described in the Registration Statement, the Pricing
Disclosure Package and the Prospectus, there are no legal, governmental or regulatory
investigations, actions, suits or proceedings pending to which the Company or any of its
subsidiaries is or may be a party or to which any property of the Company or any of its
subsidiaries is or may be the subject that, individually or in the aggregate, if determined
adversely to the Company or any of its subsidiaries, could reasonably be expected to have a
Material Adverse Effect; to the knowledge of the Company, no such investigations, actions, suits or
proceedings are threatened or contemplated by any governmental or regulatory authority or
threatened by others; and (i) there are no current or pending legal, governmental or regulatory
actions, suits or proceedings that are required under the Securities Act to be described in the
Registration Statement, the Pricing Disclosure Package or the Prospectus that are not so described
in the Registration Statement, the Pricing Disclosure Package and the Prospectus and (ii) there are
no statutes, regulations or contracts or other documents that are required under the Securities Act
to be filed as exhibits to the Registration Statement or described in the Registration Statement,
the Pricing Disclosure Package or the Prospectus that are not so filed as exhibits to the
Registration Statement or described in the Registration Statement, the Pricing Disclosure Package
and the Prospectus.
(r) Independent Accountants. KPMG LLP, who have certified certain financial statements of the
Company and its subsidiaries, is an independent registered public accounting firm with respect to
the Company and its subsidiaries within the applicable rules and regulations adopted by the
Commission and the Public Company Accounting Oversight Board (United States) and as required by the
Securities Act.
(s) Title to Real and Personal Property. The Company and its subsidiaries have good and
marketable title in fee simple (in the case of real property) to, or have valid and marketable
rights to lease or otherwise use, all items of real and personal property and assets that are
material to the respective businesses of the Company and its subsidiaries, in each case free and
clear of all liens, encumbrances, claims and defects and imperfections of title except those that
(i) do not materially interfere with the use made and proposed to be made of such property
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by the Company and its subsidiaries or (ii) could not reasonably be expected, individually or
in the aggregate, to have a Material Adverse Effect.
(t) Title to Intellectual Property. The Company and its subsidiaries own or possess adequate
rights to use all material patents, patent applications, trademarks, service marks, trade names,
trademark registrations, service xxxx registrations, copyrights, licenses and know-how (including
trade secrets and other unpatented and/or unpatentable proprietary or confidential information,
systems or procedures) necessary for the conduct of their respective businesses as currently
conducted, and the conduct of their respective businesses will not conflict in any material respect
with any such rights of others. The Company and its subsidiaries have not received any notice of
any claim of infringement, misappropriation or conflict with any such rights of others in
connection with its patents, patent rights, licenses, inventions, trademarks, service marks, trade
names, copyrights and know-how, which could reasonably be expected to result in a Material Adverse
Effect.
(u) No Undisclosed Relationships. No relationship, direct or indirect, exists between or
among the Company or any of its subsidiaries, on the one hand, and the directors, officers,
stockholders, customers or suppliers of the Company or any of its subsidiaries, on the other, that
is required by the Securities Act to be described in the Registration Statement and the Prospectus
and that is not so described in such documents and in the Pricing Disclosure Package.
(v) Investment Company Act. The Company is not and, after giving effect to the offering and
sale of the Shares and the application of the proceeds thereof as described in the Registration
Statement, the Pricing Disclosure Package and the Prospectus, the Company will not be required to
register as an “investment company” or an entity “controlled” by an “investment company” within the
meaning of the Investment Company Act of 1940, as amended, and the rules and regulations of the
Commission thereunder (collectively, the “Investment Company Act”).
(w) Taxes. The Company and its subsidiaries have paid all federal, state, local and foreign
taxes and filed all tax returns required to be paid or filed through the date hereof except with
respect to any taxes that are currently being contested in good faith or as would not have,
individually or in the aggregate, a Material Adverse Effect; and except as otherwise disclosed in
the Registration Statement, the Pricing Disclosure Package and the Prospectus, there is no tax
deficiency that has been, or could reasonably be expected to be, asserted against the Company or
any of its subsidiaries or any of their respective properties or assets, except for tax
deficiencies that would not, individually or in the aggregate, have a Material Adverse Effect.
(x) Licenses and Permits. The Company and its subsidiaries possess all licenses,
certificates, permits and other authorizations issued by, and have made all declarations and
filings with, the appropriate federal, state, local or foreign governmental or regulatory
authorities that are necessary for the ownership or lease of their respective properties or the
conduct of their respective businesses as described in the Registration Statement, the Pricing
Disclosure Package and the Prospectus, except where the failure to possess or make the same would
not, individually or in the aggregate, have a Material Adverse Effect; and except as described in
the Registration Statement, the Pricing Disclosure Package and the Prospectus, neither the Company
nor any of its subsidiaries has received notice of any revocation or modification of any such
license,
- 10 -
certificate, permit or authorization or has any reason to believe that any such license,
certificate, permit or authorization will not be renewed in the ordinary course, except where the
failure to renew would not, individually or in the aggregate, have a Material Adverse Effect.
(y) No Labor Disputes. No labor disturbance by or dispute with employees of the Company or
any of its subsidiaries exists or, to the knowledge of the Company, is contemplated or threatened,
and the Company is not aware of any existing or imminent labor disturbance by, or dispute with, the
employees of any of its or its subsidiaries’ principal suppliers, contractors or customers, except
as would not have a Material Adverse Effect.
(z) Compliance with and Liability under Environmental Laws. (i) The Company and its
subsidiaries (a) are, and at all prior times were, in compliance with any and all applicable
federal, state, local and foreign laws, rules, regulations, requirements, decisions, judgments,
decrees, orders and the common law relating to pollution or the protection of the environment,
natural resources or human health or safety, including those relating to the generation, storage,
treatment, use, handling, transportation, Release or threat of Release of Hazardous Materials
(collectively, “Environmental Laws”), (b) have received and are in compliance with all permits,
licenses, certificates or other authorizations or approvals required of them under applicable
Environmental Laws to conduct their respective businesses, (c) have not received notice of any
actual or potential liability under or relating to, or actual or potential violation of, any
Environmental Laws, including for the investigation or remediation of any Release or threat of
Release of Hazardous Materials, and have no knowledge of any event or condition that would
reasonably be expected to result in any such notice, (d) are not conducting or paying for, in whole
or in part, any investigation, remediation or other corrective action pursuant to any Environmental
Law at any location, and (e) are not a party to any order, decree or agreement that imposes any
obligation or liability under any Environmental Law, and (ii) there are no costs or liabilities
associated with Environmental Laws of or relating to the Company or its subsidiaries, except in the
case of each of (i) and (ii) above, for any such matter, as would not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect; and (iii) except as described
in the Registration Statement, the Pricing Disclosure Package and the Prospectus, (a) there are no
proceedings that are pending, or that are known to be contemplated, against the Company or any of
its subsidiaries under any Environmental Laws in which a governmental entity is also a party, other
than such proceedings regarding which it is reasonably believed no monetary sanctions of $100,000
or more will be imposed, (b) the Company and its subsidiaries are not aware of any facts or issues
regarding compliance with Environmental Laws, or liabilities or other obligations under
Environmental Laws, including the Release or threat of Release of Hazardous Materials, that could
reasonably be expected to have a material effect on the capital expenditures, earnings or
competitive position of the Company and its subsidiaries, and (c) none of the Company and its
subsidiaries anticipates material capital expenditures relating to any Environmental Laws.
(aa) Hazardous Materials. There has been no storage, generation, transportation, use,
handling, treatment, Release or threat of Release of Hazardous Materials by, relating to or caused
by the Company or any of its subsidiaries (or, to the knowledge of the Company and its
subsidiaries, any other entity (including any predecessor) for whose acts or omissions the Company
or any of its subsidiaries is or could reasonably be expected to be liable) at, on, under or from
any property or facility now or previously owned, operated or leased by the Company or
- 11 -
any of its subsidiaries, or at, on, under or from any other property or facility, in violation
of any Environmental Laws or in a manner or amount or to a location that could reasonably be
expected to result in any liability under any Environmental Law, except for any violation or
liability which would not, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect. “Hazardous Materials” means any material, chemical, substance, waste,
pollutant, contaminant, compound, mixture, or constituent thereof, in any form or amount, including
petroleum (including crude oil or any fraction thereof) and petroleum products, natural gas
liquids, asbestos and asbestos containing materials, naturally occurring radioactive materials,
brine, and drilling mud, regulated or which can give rise to liability under any Environmental Law.
“Release” means any spilling, leaking, seepage, pumping, pouring, emitting, emptying, discharging,
injecting, escaping, leaching, dumping, disposing, depositing, dispersing, or migrating in, into or
through the environment, or in, into from or through any building or structure.
(bb) Compliance with ERISA. (i) Each employee benefit plan, within the meaning of Section
3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), for which the
Company or any member of its “Controlled Group” (defined as any organization which is a member of a
controlled group of corporations within the meaning of Section 414 of the Internal Revenue Code of
1986, as amended (the “Code”)) would have any liability (each, a “Plan”) has been maintained in
compliance with its terms and the requirements of any applicable statutes, orders, rules and
regulations, including but not limited to ERISA and the Code, except for noncompliance that could
not reasonably be expected to result in material liability to the Company or its subsidiaries; (ii)
no prohibited transaction, within the meaning of Section 406 of ERISA or Section 4975 of the Code,
has occurred with respect to any Plan excluding transactions effected pursuant to a statutory or
administrative exemption that could reasonably be expected to result in a material liability to the
Company or its subsidiaries; (iii) for each Plan that is subject to the funding rules of Section
412 of the Code or Section 302 of ERISA, the minimum funding standard of Section 412 of the Code or
Section 302 of ERISA, as applicable, has been satisfied (without taking into account any waiver
thereof or extension of any amortization period) and is reasonably expected to be satisfied in the
future (without taking into account any waiver thereof or extension of any amortization period);
(iv) the fair market value of the assets of each Plan subject to Section 401(a) of the Code exceeds
the present value of all benefits accrued under such Plan (determined based on those assumptions
used to fund such Plan); (v) no “reportable event” (within the meaning of Section 4043(c) of ERISA)
has occurred or is reasonably expected to occur that either has resulted, or could reasonably be
expected to result, in material liability to the Company or its subsidiaries; (vi) neither the
Company nor any member of the Controlled Group has incurred, nor reasonably expects to incur, any
liability under Title IV of ERISA (other than contributions to the Plan or premiums to the PBGC, in
the ordinary course and without default) in respect of a Plan (including a “multiemployer plan,”
within the meaning of Section 4001(a)(3) of ERISA); and (vii) there is no pending audit or
investigation by the Internal Revenue Service, the U.S. Department of Labor, the Pension Benefit
Guaranty Corporation or any other governmental agency or any foreign regulatory agency with respect
to any Plan that could reasonably be expected to result in material liability to the Company or its
subsidiaries. None of the following events has occurred or is reasonably likely to occur: (x) a
material increase in the aggregate amount of contributions required to be made to all Plans by the
Company or its subsidiaries in the current fiscal year of the Company and its subsidiaries compared
to the amount of such contributions made in the Company and its subsidiaries’ most
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recently completed fiscal year; or (y) a material increase in the Company and its
subsidiaries’ “accumulated post-retirement benefit obligations” (within the meaning of Statement of
Financial Accounting Standards 106) compared to the amount of such obligations in the Company and
its subsidiaries’ most recently completed fiscal year.
(cc) Disclosure Controls. The Company and its subsidiaries maintain an effective system of
“disclosure controls and procedures” (as defined in Rule 13a-15(e) of the Exchange Act) that
complies with the requirements of the Exchange Act and that has been designed to ensure that
information required to be disclosed by the Company in reports that it files or submits under the
Exchange Act is recorded, processed, summarized and reported within the time periods specified in
the Commission’s rules and forms, including controls and procedures designed to ensure that such
information is accumulated and communicated to the Company’s management as appropriate to allow
timely decisions regarding required disclosure. The Company and its subsidiaries have carried out
evaluations of the effectiveness of their disclosure controls and procedures as required by Rule
13a-15 of the Exchange Act.
(dd) Accounting Controls. The Company and its subsidiaries maintain systems of “internal
control over financial reporting” (as defined in Rule 13a-15(f) of the Exchange Act) that comply
with the requirements of the Exchange Act and have been designed by, or under the supervision of,
their respective principal executive and principal financial officers, or persons performing
similar functions, to provide reasonable assurance regarding the reliability of financial reporting
and the preparation of financial statements for external purposes in accordance with GAAP,
including, but not limited to, internal accounting controls sufficient to provide reasonable
assurance that (i) transactions are executed in accordance with management’s general or specific
authorizations; (ii) transactions are recorded as necessary to permit preparation of financial
statements in conformity with GAAP and to maintain asset accountability; (iii) access to assets is
permitted only in accordance with management’s general or specific authorization; and (iv) the
recorded accountability for assets is compared with the existing assets at reasonable intervals and
appropriate action is taken with respect to any differences. There are no material weaknesses in
the Company’s internal controls. The Company’s auditors and the Audit Committee of the Board of
Directors of the Company have been advised of: (i) all significant deficiencies and material
weaknesses in the design or operation of internal controls over financial reporting which have
adversely affected or are reasonably likely to adversely affect the Company’s ability to record,
process, summarize and report financial information; and (ii) any fraud, whether or not material,
that involves management or other employees who have a significant role in the Company’s internal
controls over financial reporting.
(ee) Insurance. The Company and its subsidiaries have insurance covering their respective
properties, operations, personnel and businesses, including business interruption insurance, which
insurance is in amounts and insures against such losses and risks as are adequate, in the
reasonable belief of the Company, to protect the Company and its subsidiaries and their respective
businesses; neither the Company nor any of its subsidiaries has received notice from any insurer or
agent of such insurer that capital improvements or other material expenditures are required or
necessary to be made in order to continue such insurance; and except as disclosed in the
Registration Statement, the Pricing Disclosure Package and the Prospectus, the Company reasonably
believes that it will be able to renew its existing insurance
- 13 -
coverage as and when such coverage expires or obtain similar coverage at reasonable cost from
similar insurers as may be necessary to continue its business.
(ff) No Unlawful Payments. Neither the Company nor any of its subsidiaries nor, to the
knowledge of the Company, any director, officer, agent, employee or other person associated with or
acting on behalf of the Company or any of its subsidiaries has (i) used any corporate funds for any
unlawful contribution, gift, entertainment or other unlawful expense relating to political
activity; (ii) made any direct or indirect unlawful payment to any foreign or domestic government
official or employee from corporate funds; (iii) violated or is in violation of any provision of
the Foreign Corrupt Practices Act of 1977; or (iv) made any bribe, rebate, payoff, influence
payment, kickback or other unlawful payment.
(gg) Compliance with Money Laundering Laws. The operations of the Company and its
subsidiaries are and have been conducted at all times in compliance with applicable financial
recordkeeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of
1970, as amended, the money laundering statutes of all jurisdictions, the rules and regulations
thereunder and any related or similar rules, regulations or guidelines, issued, administered or
enforced by any governmental agency (collectively, the “Money Laundering Laws”) and no action, suit
or proceeding by or before any court or governmental agency, authority or body or any arbitrator
involving the Company or any of its subsidiaries with respect to the Money Laundering Laws is
pending or, to the knowledge of the Company, threatened.
(hh) Compliance with OFAC. None of the Company, any of its subsidiaries or, to the knowledge
of the Company, any director, officer, agent, employee or affiliate of the Company or any of its
subsidiaries is currently subject to any U.S. sanctions administered by the Office of Foreign
Assets Control of the U.S. Department of the Treasury (“OFAC”); and the Company will not, directly
or indirectly, use the proceeds of the offering of the Shares hereunder, or lend, contribute or
otherwise make available such proceeds to any subsidiary, joint venture partner or other person or
entity, for the purpose of financing the activities of any person currently subject to any U.S.
sanctions administered by OFAC.
(ii) No Restrictions on Subsidiaries. Except in each case as otherwise disclosed in the
Registration Statement, the Pricing Disclosure Package and the Prospectus, no subsidiary of the
Company is currently prohibited, directly or indirectly, under any agreement or other instrument to
which it is a party or is subject, from paying any dividends to the Company, from making any other
distribution on such subsidiary’s capital stock, from repaying to the Company any loans or advances
to such subsidiary from the Company or from transferring any of such subsidiary’s properties or
assets to the Company or any other subsidiary of the Company.
(jj) No Broker’s Fees. Neither the Company nor any of its subsidiaries is a party to any
contract, agreement or understanding with any person (other than this Agreement) that would give
rise to a valid claim against the Company or any of its subsidiaries or any Underwriter for a
brokerage commission, finder’s fee or like payment in connection with the offering and sale of the
Shares.
(kk) No Registration Rights. Other than the U.S. Department of the Treasury, no person has
the right to require the Company or any of its subsidiaries to register any securities
- 14 -
for sale under the Securities Act by reason of the filing of the Registration Statement with
the Commission or the issuance and sale of the Shares.
(ll) No Stabilization. The Company has not taken, directly or indirectly, any action designed
to or that could reasonably be expected to cause or result in any stabilization or manipulation of
the price of the Shares.
(mm) Margin Rules. The application of the proceeds received by the Company from the issuance,
sale and delivery of the Shares as described in the Registration Statement, the Pricing Disclosure
Package and the Prospectus will not violate Regulation T, U or X of the Board of Governors of the
Federal Reserve System or any other regulation of such Board of Governors.
(nn) Forward-Looking Statements. No forward-looking statement (within the meaning of Section
27A of the Securities Act and Section 21E of the Exchange Act) contained in the Registration
Statement, the Pricing Disclosure Package or the Prospectus has been made or reaffirmed without a
reasonable basis or has been disclosed other than in good faith.
(oo) Statistical and Market Data. The statistical and market-related data included in the
Registration Statement, the Pricing Disclosure Package and the Prospectus are based on or derived
from sources that the Company reasonably believes are reliable and accurate in all material
respects.
(pp) Xxxxxxxx-Xxxxx Act. There is and has been no failure on the part of the Company or, to
the knowledge of the Company, any of the Company’s directors or officers, in their capacities as
such, to comply with any provision of the Xxxxxxxx-Xxxxx Act of 2002 and the rules and regulations
promulgated in connection therewith, including Section 402 related to loans and Sections 302 and
906 related to certifications.
(qq) Status under the Securities Act. At the time of filing the Registration Statement and
any post-effective amendment thereto, at the earliest time thereafter that the Company or any
offering participant made a bona fide offer (within the meaning of Rule 164(h)(2) under the
Securities Act) of the Shares and at the date hereof, the Company was not and is not an “ineligible
issuer,” and is a well-known seasoned issuer, in each case as defined in Rule 405 under the
Securities Act. The Company has paid the registration fee for this offering pursuant to Rule
456(b)(1) under the Securities Act or will pay such fee within the time period required by such
rule (without giving effect to the proviso therein) and in any event prior to the Closing Date.
(rr) Bank Regulatory Authorities. Each of the Company and its subsidiaries are in compliance
with all applicable laws administered by, and all rules and regulations of, the Board of Governors
of the Federal Reserve System (the “Federal Reserve Board”), the Federal Deposit Insurance
Corporation (the “FDIC”), the Office of the Comptroller of the Currency (the “OCC”), the Georgia
Department of Banking and Finance, the Alabama Banking Department, the Florida Department of
Financial Services, the Tennessee Department of Financial Institutions, and any other federal or
state bank regulatory authorities with jurisdiction over the Company or its subsidiaries
(collectively, the “Bank Regulatory Authorities”), except as disclosed in the Registration
Statement, the Pricing Disclosure Package and the Prospectus or where such noncompliance would not,
individually or in the aggregate, reasonably be expected to have a
- 15 -
Material Adverse Effect. The deposit accounts of the Company and its subsidiaries are insured
up to applicable limits by the FDIC and no proceedings for the termination or revocation of such
insurance are pending or, to the knowledge of the Company, threatened. Except as disclosed in the
Registration Statement, the Pricing Disclosure Package and the Prospectus, neither the Company nor
any of its subsidiaries is a party to any written agreement or memorandum of understanding with, or
a party to any commitment letter or similar undertaking to, or is subject to any order or directive
by, or is a recipient of any extraordinary supervisory letter from, or has adopted any board of
director resolutions at the request of, any Bank Regulatory Authority which currently restricts the
conduct of its business, or relates to its capital adequacy, its credit policies or its management,
in each case that are applicable to the Company or its subsidiaries specifically rather than to
banks and bank holding companies generally.
4. Further Agreements of the Company. The Company covenants and agrees with each
Underwriter that:
(a) Required Filings. The Company will file the final Prospectus with the Commission within
the time periods specified by Rule 424(b) and Rule 430A, 430B or 430C under the Securities Act,
will file any Issuer Free Writing Prospectus to the extent required by Rule 433 under the
Securities Act; will file promptly all reports and any definitive proxy or information statements
required to be filed by the Company with the Commission pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act subsequent to the date of the Prospectus and for so long as the delivery
of a prospectus is required in connection with the offering or sale of the Shares; and will furnish
copies of the Prospectus and each Issuer Free Writing Prospectus (to the extent not previously
delivered) to the Underwriters in New York City prior to 10:00 A.M., New York City time, on the
business day next succeeding the date of this Agreement in such quantities as the Representative
may reasonably request. The Company will pay the registration fee for this offering within the
time period required by Rule 456(b)(1) under the Securities Act (without giving effect to the
proviso therein) and in any event prior to the Closing Date.
(b) Delivery of Copies. The Company will deliver, without charge, (i) to the Representative,
two signed copies of the Registration Statement as originally filed and each amendment thereto, in
each case including all exhibits and consents filed therewith; and (ii) to each Underwriter (A) a
conformed electronic copy of the Registration Statement as originally filed and each amendment
thereto (without exhibits) and (B) during the Prospectus Delivery Period (as defined below), as
many copies of the Prospectus (including all amendments and supplements thereto and documents
incorporated by reference therein and each Issuer Free Writing Prospectus) as the Representative
may reasonably request. As used herein, the term “Prospectus Delivery Period” means such period of
time after the first date of the public offering of the Shares as in the opinion of counsel for the
Underwriters a prospectus relating to the Shares is required by law to be delivered (or required to
be delivered but for Rule 172 under the Securities Act) in connection with sales of the Shares by
any Underwriter or dealer.
(c) Amendments or Supplements, Issuer Free Writing Prospectuses. Before preparing, using,
authorizing, approving, referring to or filing any Issuer Free Writing Prospectus, and before
filing any amendment or supplement to the Registration Statement or the Prospectus, the Company
will furnish to the Representative and counsel for the Underwriters a
- 16 -
copy of the proposed Issuer Free Writing Prospectus, amendment or supplement for review and
will not prepare, use, authorize, approve, refer to or file any such Issuer Free Writing Prospectus
or file any such proposed amendment or supplement to which the Representative reasonably objects.
(d) Notice to the Representative. The Company will advise the Representative promptly, and
confirm such advice in writing, (i) when any amendment to the Registration Statement has been filed
or becomes effective; (ii) when any supplement to the Prospectus or any Issuer Free Writing
Prospectus or any amendment to the Prospectus has been filed; (iii) of any request by the
Commission for any amendment to the Registration Statement or any amendment or supplement to the
Prospectus or the receipt of any comments from the Commission relating to the Registration
Statement or any other request by the Commission for any additional information; (iv) of the
issuance by the Commission of any order suspending the effectiveness of the Registration Statement
or preventing or suspending the use of any Preliminary Prospectus, any of the Pricing Disclosure
Package or the Prospectus or the initiation or threatening of any proceeding for that purpose or
pursuant to Section 8A of the Securities Act; (v) of the occurrence of any event within the
Prospectus Delivery Period as a result of which the Prospectus, the Pricing Disclosure Package or
any Issuer Free Writing Prospectus as then amended or supplemented would include any untrue
statement of a material fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances existing when the Prospectus, the Pricing
Disclosure Package or any such Issuer Free Writing Prospectus is delivered to a purchaser, not
misleading; (vi) of the receipt by the Company of any notice of objection of the Commission to the
use of the Registration Statement or any post-effective amendment thereto pursuant to Rule
401(g)(2) under the Securities Act; and (vii) of the receipt by the Company of any notice with
respect to any suspension of the qualification of the Shares for offer and sale in any jurisdiction
or the initiation or threatening of any proceeding for such purpose; and the Company will use its
commercially reasonable efforts to prevent the issuance of any such order suspending the
effectiveness of the Registration Statement, preventing or suspending the use of any Preliminary
Prospectus, any of the Pricing Disclosure Package or the Prospectus or suspending any such
qualification of the Shares and, if any such order is issued, will obtain as soon as possible the
withdrawal thereof.
(e) Ongoing Compliance. (1) If during the Prospectus Delivery Period (i) any event shall
occur or condition shall exist as a result of which the Prospectus as then amended or supplemented
would include any untrue statement of a material fact or omit to state any material fact necessary
in order to make the statements therein, in the light of the circumstances existing when the
Prospectus is delivered to a purchaser, not misleading or (ii) it is necessary to amend or
supplement the Prospectus to comply with law, the Company will immediately notify the Underwriters
thereof and forthwith prepare and, subject to paragraph (c) above, file with the Commission and
furnish to the Underwriters and to such dealers as the Representative may designate such amendments
or supplements to the Prospectus as may be necessary so that the statements in the Prospectus as so
amended or supplemented will not, in the light of the circumstances existing when the Prospectus is
delivered to a purchaser, be misleading or so that the Prospectus will comply with law and (2) if
at any time prior to the Closing Date (i) any event shall occur or condition shall exist as a
result of which the Pricing Disclosure Package as then amended or supplemented would include any
untrue statement of a material fact or omit to state any material fact necessary in order to make
the statements therein, in the light of the
- 17 -
circumstances existing when the Pricing Disclosure Package is delivered to a purchaser, not
misleading or (ii) it is necessary to amend or supplement the Pricing Disclosure Package to comply
with law, the Company will immediately notify the Underwriters thereof and forthwith prepare and,
subject to paragraph (c) above, file with the Commission (to the extent required) and furnish to
the Underwriters and to such dealers as the Representative may designate such amendments or
supplements to the Pricing Disclosure Package as may be necessary so that the statements in the
Pricing Disclosure Package as so amended or supplemented will not, in the light of the
circumstances existing when the Pricing Disclosure Package is delivered to a purchaser, be
misleading or so that the Pricing Disclosure Package will comply with law.
(f) Blue Sky Compliance. The Company will qualify the Shares for offer and sale under the
securities or Blue Sky laws of such jurisdictions as the Representative shall reasonably request
and will continue such qualifications in effect so long as required for distribution of the Shares;
provided that the Company shall not be required to (i) qualify as a foreign corporation or
other entity or as a dealer in securities in any such jurisdiction where it would not otherwise be
required to so qualify, (ii) file any general consent to service of process in any such
jurisdiction or (iii) subject itself to taxation in any such jurisdiction if it is not otherwise so
subject.
(g) Earning Statement. The Company will make generally available to its security holders and
the Representative as soon as practicable an earning statement that satisfies the provisions of
Section 11(a) of the Securities Act and Rule 158 of the Commission promulgated thereunder covering
a period of at least twelve months beginning with the first fiscal quarter of the Company occurring
after the “effective date” (as defined in Rule 158) of the Registration Statement.
(h) Clear Market. For a period of 90 days after the date of the Prospectus, the Company will
not (i) offer, pledge, announce the intention to sell, sell, contract to sell, sell any option or
contract to purchase, purchase any option or contract to sell, grant any option, right or warrant
to purchase or otherwise transfer or dispose of, directly or indirectly, or file with the
Securities and Exchange Commission a registration statement under the Securities Act relating to,
any shares of Stock or any securities convertible into or exercisable or exchangeable for Stock, or
publicly disclose the intention to make any offer, sale, pledge, disposition or filing, or (ii)
enter into any swap or other agreement that transfers, in whole or in part, any of the economic
consequences of ownership of the Stock or any such other securities, whether any such transaction
described in clause (i) or (ii) above is to be settled by delivery of Stock or such other
securities, in cash or otherwise, without the prior written consent of the Representative, other
than the Shares to be sold hereunder, any shares of Stock of the Company issued upon the exercise
of options granted under Company Stock Plans existing as of the date hereof, any tangible equity
units (“tMEDS”) issued pursuant to that certain Underwriting Agreement of even date herewith
between the Company and the Representative (the “tMED Offering”) and any shares of Stock issued
pursuant to that certain Offer to Exchange dated April 26, 2010 and related letter of transmittal
(the “Offer to Exchange”).
(i) Use of Proceeds. The Company will apply the net proceeds from the sale of the Shares as
described in the Registration Statement, the Pricing Disclosure Package and the Prospectus under
the heading “Use of proceeds.”
- 18 -
(j) No Stabilization. The Company will not take, directly or indirectly, any action designed
to or that could reasonably be expected to cause or result in any stabilization or manipulation of
the price of the Stock, it being understood that the issuance of the tMEDs in accordance with the
tMED Offering and the exchange of shares of Stock in accordance with the Offer to Exchange shall
not constitute activity that would result in the stabilization or manipulation of the price of
Stock.
(k) Exchange Listing. The Company will use its commercially reasonable efforts to list,
subject to notice of issuance, the Shares on the New York Stock Exchange (the “Exchange”).
(l) Reports. So long as the Shares are outstanding, the Company will make available to the
Representative, promptly after they are available, copies of all reports or other communications
(financial or other) furnished to holders of the Shares, and copies of any reports and financial
statements furnished to or filed with the Commission or any national securities exchange or
automatic quotation system; provided the Company will be deemed to have furnished such
reports and financial statements to the Representative to the extent they are filed on the
Commission’s Electronic Data Gathering, Analysis, and Retrieval system.
(m) Record Retention. The Company will, pursuant to reasonable procedures developed in good
faith, retain copies of each Issuer Free Writing Prospectus that is not filed with the Commission
in accordance with Rule 433 under the Securities Act.
5. Certain Agreements of the Underwriters. Each Underwriter hereby represents and
agrees that:
(a) It has not used, authorized use of, referred to or participated in the planning for use
of, and will not use, authorize use of, refer to or participate in the planning for use of, any
“free writing prospectus,” as defined in Rule 405 under the Securities Act (which term includes use
of any written information furnished to the Commission by the Company and not incorporated by
reference into the Registration Statement and any press release issued by the Company) other than
(i) a free writing prospectus that contains no “issuer information” (as defined in Rule 433(h)(2)
under the Securities Act) that was not included (including through incorporation by reference) in
the Preliminary Prospectus or a previously filed Issuer Free Writing Prospectus, (ii) any Issuer
Free Writing Prospectus listed on Annex A or prepared pursuant to Section 3(c) or Section 4(c)
above (including any electronic road show), or (iii) any free writing prospectus prepared by such
underwriter and approved by the Company in advance in writing (each such free writing prospectus
referred to in clauses (i) or (iii), an “Underwriter Free Writing Prospectus”).
(b) It has not and will not, without the prior written consent of the Company, use any free
writing prospectus that contains the final terms of the Shares unless such terms have previously
been included in a free writing prospectus filed with the Commission.
(c) It is not subject to any pending proceeding under Section 8A of the Securities Act with
respect to the offering (and will promptly notify the Company if any such proceeding against it is
initiated during the Prospectus Delivery Period).
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6. Conditions of Underwriters’ Obligations. The obligation of each Underwriter to
purchase the Underwritten Shares on the Closing Date or the Option Shares on the Additional Closing
Date, as the case may be, as provided herein is subject to the performance by the Company of its
covenants and other obligations hereunder and to the following additional conditions:
(a) Registration Compliance; No Stop Order. No order suspending the effectiveness of the
Registration Statement shall be in effect, and no proceeding for such purpose, pursuant to Rule
401(g)(2) or pursuant to Section 8A under the Securities Act shall be pending before or threatened
by the Commission; the Prospectus and each Issuer Free Writing Prospectus shall have been timely
filed with the Commission under the Securities Act (in the case of an Issuer Free Writing
Prospectus, to the extent required by Rule 433 under the Securities Act) and in accordance with
Section 4(a) hereof; and all requests by the Commission for additional information shall have been
complied with to the reasonable satisfaction of the Representative.
(b) Representations and Warranties. The representations and warranties of the Company
contained herein shall be true and correct on the date hereof and on and as of the Closing Date or
the Additional Closing Date, as the case may be; and the statements of the Company and its officers
made in any certificates delivered pursuant to this Agreement shall be true and correct on and as
of the Closing Date or the Additional Closing Date, as the case may be.
(c) No Downgrade. Subsequent to the earlier of (A) the Applicable Time and (B) the execution
and delivery of this Agreement, if there are any debt securities or preferred stock of, or
guaranteed by, the Company or any of its subsidiaries that are rated by a “nationally recognized
statistical rating organization,” as such term is defined by the Commission for purposes of Rule
436(g)(2) under the Securities Act, (i) no downgrading shall have occurred in the rating accorded
any such debt securities or preferred stock and (ii) no such organization shall have publicly
announced that it has under surveillance or review, or has changed its outlook with respect to, its
rating of any such debt securities or preferred stock (other than an announcement with positive
implications of a possible upgrading).
(d) No Material Adverse Change. No event or condition of a type described in Section 3(g)
hereof shall have occurred or shall exist, which event or condition is not described in the Pricing
Disclosure Package (excluding any amendment or supplement thereto) and the Prospectus (excluding
any amendment or supplement thereto) and the effect of which in the judgment of the Representative
makes it impracticable or inadvisable to proceed with the offering, sale or delivery of the Shares
on the Closing Date or the Additional Closing Date, as the case may be, on the terms and in the
manner contemplated by this Agreement, the Pricing Disclosure Package and the Prospectus.
(e) Officers’ Certificate. The Representative shall have received on and as of the Closing
Date or the Additional Closing Date, as the case may be, a certificate of the chief financial
officer or chief accounting officer of the Company and one additional senior executive officer of
the Company who is satisfactory to the Representative (i) confirming that such officers have
carefully reviewed the Registration Statement, the Pricing Disclosure Package and the Prospectus
and, to the knowledge of such officers, the representations set forth in Sections 3(b)
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and 3(d) hereof are true and correct, (ii) confirming that the other representations and
warranties of the Company in this Agreement are true and correct and that the Company has complied
with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder
at or prior to the Closing Date or the Additional Closing Date, as the case may be, and (iii) to
the effect set forth in paragraphs (a), (c) and (d) above.
(f) Comfort Letters. On the date of this Agreement and on the Closing Date or the Additional
Closing Date, as the case may be, KPMG LLP shall have furnished to the Representative, at the
request of the Company, letters, dated the respective dates of delivery thereof and addressed to
the Underwriters, in form and substance reasonably satisfactory to the Representative, containing
statements and information of the type customarily included in accountants’ “comfort letters” to
underwriters with respect to the financial statements and certain financial information contained
or incorporated by reference in the Registration Statement, the Pricing Disclosure Package and the
Prospectus; provided, that the letter delivered on the Closing Date or the Additional
Closing Date, as the case may be, shall use a “cut-off” date no more than three business days prior
to such Closing Date or such Additional Closing Date, as the case may be.
(g) CFO Certificate. The Representative shall have received on and as of the date of this
Agreement and on the Closing Date or the Additional Closing Date, as the case may be, a certificate
of the chief financial officer of the Company, in the form set forth in Annex D hereto.
(h) Opinion and 10b-5 Statement. Xxxxx Xxxx & Xxxxxxxx LLP, special counsel for the Company,
Xxxxxx & Bird LLP, special counsel for the Company, and Xxxxx X. Xxxxxxx, Deputy General Counsel of
the Company, shall have furnished to the Representative, at the request of the Company, a written
opinion and, in the case of Xxxxx Xxxx & Xxxxxxxx LLP, a 10b-5 statement, dated the Closing Date or
the Additional Closing Date, as the case may be, and addressed to the Underwriters, in form and
substance reasonably satisfactory to the Representative, to the effect set forth in Annex C-1,
Annex C-2 and Annex C-3, respectively, hereto.
(i) Opinion and 10b-5 Statement of Counsel for the Underwriters. The Representative shall
have received on and as of the Closing Date or the Additional Closing Date, as the case may be, an
opinion and 10b-5 statement of Wachtell, Lipton, Xxxxx & Xxxx, counsel for the Underwriters, with
respect to such matters as the Representative may reasonably request, and such counsel shall have
received such documents and information as they may reasonably request to enable them to pass upon
such matters.
(j) No Legal Impediment to Issuance. No action shall have been taken and no statute, rule,
regulation or order shall have been enacted, adopted or issued by any federal, state or foreign
governmental or regulatory authority that would, as of the Closing Date or the Additional Closing
Date, as the case may be, prevent the issuance or sale of the Shares; and no injunction or order of
any federal, state or foreign court shall have been issued that would, as of the Closing Date or
the Additional Closing Date, as the case may be, prevent the issuance or sale of the Shares.
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(k) Good Standing. The Representative shall have received on and as of the Closing Date or
the Additional Closing Date, as the case may be, satisfactory evidence of the good standing of the
Company and its Significant Subsidiaries in their respective jurisdictions of organization and
their good standing as foreign entities in such other jurisdictions as the Representative may
reasonably request, in each case in writing or any standard form of telecommunication from the
appropriate governmental authorities of such jurisdictions.
(l) Exchange Listing. The Shares to be delivered on the Closing Date or Additional Closing
Date, as the case may be, shall have been approved for listing on the Exchange, subject to official
notice of issuance.
(m) Lock-up Agreements. The “lock-up” agreements, each substantially in the form of Exhibit A
hereto, from certain officers and directors of the Company relating to sales and certain other
dispositions of shares of Stock or certain other securities, delivered to you on or before the date
hereof, shall be in full force and effect on the Closing Date or Additional Closing Date, as the
case may be.
(n) Additional Documents. On or prior to the Closing Date or the Additional Closing Date, as
the case may be, the Company shall have furnished to the Representative such further certificates
and documents as the Representative may reasonably request.
All opinions, letters, certificates and evidence mentioned above or elsewhere in this
Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form
and substance reasonably satisfactory to counsel for the Underwriters.
7. Indemnification and Contribution.
(a) Indemnification of the Underwriters. The Company agrees to indemnify and hold harmless
each Underwriter, its affiliates, directors and officers and each person, if any, who controls such
Underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange
Act, from and against any and all losses, claims, damages and liabilities (including, without
limitation, legal fees and other expenses incurred in connection with any suit, action or
proceeding or any claim asserted, as such fees and expenses are incurred), joint or several, that
arise out of, or are based upon, (i) any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement or caused by any omission or alleged omission to state
therein a material fact required to be stated therein or necessary in order to make the statements
therein, not misleading, (ii) any untrue statement or alleged untrue statement of a material fact
contained in the Prospectus (or any amendment or supplement thereto), any Issuer Free Writing
Prospectus, any “issuer information” filed or required to be filed pursuant to Rule 433(d) under
the Securities Act or any Pricing Disclosure Package (including any Pricing Disclosure Package that
has subsequently been amended) or caused by any omission or alleged omission to state therein a
material fact necessary in order to make the statements therein, in light of the circumstances
under which they were made, not misleading, or (iii) any untrue statement or alleged untrue
statement of a material fact contained in the Prospectus (or any amendment or supplement thereto)
or prospectus wrapper material distributed in connection with the reservation and sale of the
Directed Shares or the omission or alleged omission therefrom of a material fact necessary to make
the statements therein, when considered in conjunction with
- 22 -
the Prospectus or the Pricing Disclosure Package, not misleading, in each case except insofar
as such losses, claims, damages or liabilities arise out of, or are based upon, any untrue
statement or omission or alleged untrue statement or omission made in reliance upon and in
conformity with any information relating to any Underwriter furnished to the Company in writing by
such Underwriter through the Representative expressly for use therein, it being understood and
agreed that the only such information furnished by any Underwriter consists of the information
described as such in subsection (b) below.
(b) Indemnification of the Company. Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless the Company, its directors, its officers who signed the Registration
Statement and each person, if any, who controls the Company within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act to the same extent as the indemnity set forth in
paragraph (a) above, but only with respect to any losses, claims, damages or liabilities that arise
out of, or are based upon, any untrue statement or omission or alleged untrue statement or omission
made in reliance upon and in conformity with any information relating to such Underwriter furnished
to the Company in writing by such Underwriter through the Representative expressly for use in the
Registration Statement, the Prospectus (or any amendment or supplement thereto), any Issuer Free
Writing Prospectus or any Pricing Disclosure Package, it being understood and agreed upon that the
only such information furnished by any Underwriter consists of the following information in the
Prospectus furnished on behalf of each Underwriter: the concession figures appearing in the fourth
paragraph under the caption “Underwriting” and the information contained in the paragraph beginning
with the phrase “In connection with this offering, the underwriters may engage in stabilizing
transactions . . .” and each subsequent paragraph through and including the paragraph beginning
with the phrase “In addition, in connection with this offering certain of the underwriters (and
selling group members) may engage in passive market making transactions . . .” under the caption
“Underwriting.”
(c) Notice and Procedures. If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or asserted against any person in
respect of which indemnification may be sought pursuant to either paragraph (a) or (b) above, such
person (the “Indemnified Person”) shall promptly notify the person against whom such
indemnification may be sought (the “Indemnifying Person”) in writing; provided that the
failure to notify the Indemnifying Person shall not relieve it from any liability that it may have
under paragraph (a) or (b) above except to the extent that it has been materially prejudiced
(through the forfeiture of substantive rights or defenses) by such failure; and provided,
further, that the failure to notify the Indemnifying Person shall not relieve it from any
liability that it may have to an Indemnified Person otherwise than under paragraph (a) or (b)
above. If any such proceeding shall be brought or asserted against an Indemnified Person and it
shall have notified the Indemnifying Person thereof, the Indemnifying Person shall retain counsel
reasonably satisfactory to the Indemnified Person (who shall not, without the consent of the
Indemnified Person, be counsel to the Indemnifying Person) to represent the Indemnified Person in
such proceeding and shall pay the fees and expenses of such counsel related to such proceeding, as
incurred. In any such proceeding, any Indemnified Person shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense of such Indemnified
Person unless (i) the Indemnifying Person and the Indemnified Person shall have mutually agreed to
the contrary; (ii) the Indemnifying Person has failed within a reasonable time to retain counsel
reasonably satisfactory to the Indemnified Person; (iii) the Indemnified Person shall have
- 23 -
reasonably concluded that there may be legal defenses available to it that are different from
or in addition to those available to the Indemnifying Person; or (iv) the named parties in any such
proceeding (including any impleaded parties) include both the Indemnifying Person and the
Indemnified Person and representation of both parties by the same counsel would be inappropriate
due to actual or potential differing interest between them. It is understood and agreed that the
Indemnifying Person shall not, in connection with any proceeding or related proceedings in the same
jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition to
any local counsel) for all Indemnified Persons, and that all such fees and expenses shall be paid
or reimbursed as they are incurred. Any such separate firm for any Underwriter, its affiliates,
directors and officers and any control persons of such Underwriter shall be designated in writing
by X.X. Xxxxxx Securities Inc. and any such separate firm for the Company, its directors, its
officers who signed the Registration Statement and any control persons of the Company shall be
designated in writing by the Company. The Indemnifying Person shall not be liable for any
settlement of any proceeding effected without its written consent, but if settled with such consent
or if there be a final judgment for the plaintiff, the Indemnifying Person agrees to indemnify each
Indemnified Person from and against any loss or liability by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time an Indemnified Person shall have requested
that an Indemnifying Person reimburse the Indemnified Person for fees and expenses of counsel as
contemplated by this paragraph, the Indemnifying Person shall be liable for any settlement of any
proceeding effected without its written consent if (i) such settlement is entered into more than 30
days after receipt by the Indemnifying Person of such request and (ii) the Indemnifying Person
shall not have reimbursed the Indemnified Person in accordance with such request prior to the date
of such settlement. No Indemnifying Person shall, without the written consent of the Indemnified
Person, effect any settlement of any pending or threatened proceeding in respect of which any
Indemnified Person is or could have been a party and indemnification could have been sought
hereunder by such Indemnified Person, unless such settlement (x) includes an unconditional release
of such Indemnified Person, in form and substance reasonably satisfactory to such Indemnified
Person, from all liability on claims that are the subject matter of such proceeding and (y) does
not include any statement as to or any admission of fault, culpability or a failure to act by or on
behalf of any Indemnified Person.
(d) Contribution. If the indemnification provided for in paragraphs (a) and (b) above is
unavailable to an Indemnified Person or insufficient in respect of any losses, claims, damages or
liabilities referred to therein, then each Indemnifying Person under such paragraph, in lieu of
indemnifying such Indemnified Person thereunder, shall contribute to the amount paid or payable by
such Indemnified Person as a result of such losses, claims, damages or liabilities (i) in such
proportion as is appropriate to reflect the relative benefits received by the Company, on the one
hand, and the Underwriters on the other, from the offering of the Shares or (ii) if the allocation
provided by clause (i) is not permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause (i) but also the relative fault of the
Company, on the one hand, and the Underwriters on the other, in connection with the statements or
omissions that resulted in such losses, claims, damages or liabilities, as well as any other
relevant equitable considerations. The relative benefits received by the Company, on the one hand,
and the Underwriters on the other, shall be deemed to be in the same respective proportions as the
net proceeds (before deducting expenses) received by the Company from the sale of the Shares and
the total underwriting discounts and commissions received by the
- 24 -
Underwriters in connection therewith, in each case as set forth in the table on the cover of
the Prospectus, bear to the aggregate offering price of the Shares. The relative fault of the
Company, on the one hand, and the Underwriters on the other, shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information supplied by the
Company or by the Underwriters and the parties’ relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission.
(e) Sale of Directed Shares. In connection with the offer and sale of Directed Shares, the
Company agrees promptly upon written notice, to indemnify and hold harmless each Underwriter and
each person, if any, who controls any Underwriter within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act, and each affiliate of any Underwriter within the
meaning of Rule 405 under the Securities Act from and against any and all losses, liabilities,
claims, damages and expenses incurred by them as a result of (i) the violation of any applicable
laws or regulations of any foreign jurisdictions where Directed Shares have been offered or (ii)
the failure of any Directed Share Purchaser, who has agreed to purchase Directed Shares, to pay for
and accept delivery of the Directed Shares. Under no circumstances will the Representative or any
Underwriter be liable to the Company or to any Directed Share Purchaser for any action taken or
omitted to be taken in connection with the Directed Shares or any transaction effected with any
Directed Share Purchaser, except to the extent found in a final judgment by a court of competent
jurisdiction (not subject to further appeal) to have resulted primarily and directly from the gross
negligence or willful misconduct of the Representative or such Underwriter, as the case may be.
(f) Limitation on Liability. The Company and the Underwriters agree that it would not be just
and equitable if contribution pursuant to this Section 7 were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such purpose) or by any other
method of allocation that does not take account of the equitable considerations referred to in
paragraph (d) above. The amount paid or payable by an Indemnified Person as a result of the
losses, claims, damages and liabilities referred to in paragraph (d) above shall be deemed to
include, subject to the limitations set forth above, any legal or other expenses incurred by such
Indemnified Person in connection with any such action or claim. Notwithstanding the provisions of
this Section 7, in no event shall an Underwriter be required to contribute any amount in excess of
the amount by which the total underwriting discounts and commissions received by such Underwriter
with respect to the offering of the Shares exceeds the amount of any damages that such Underwriter
has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters’ obligations to contribute pursuant
to this Section 7 are several in proportion to their respective purchase obligations hereunder and
not joint.
(g) Non-Exclusive Remedies. The remedies provided for in this Section 7 are not exclusive and
shall not limit any rights or remedies which may otherwise be available to any Indemnified Person
at law or in equity.
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8. Effectiveness of Agreement. This Agreement shall become effective upon the
execution and delivery hereof by the parties hereto.
9. Termination. This Agreement may be terminated in the absolute discretion of the
Representative, by notice to the Company, if after the execution and delivery of this Agreement and
prior to the Closing Date or, in the case of the Option Shares, prior to the Additional Closing
Date (i) trading generally shall have been suspended or materially limited on or by any of the New
York Stock Exchange, the American Stock Exchange, the Nasdaq Stock Market, the Chicago Board
Options Exchange, the Chicago Mercantile Exchange or the Chicago Board of Trade; (ii) trading of
any securities issued or guaranteed by the Company shall have been suspended on any exchange or in
any over-the-counter market; (iii) a general moratorium on commercial banking activities shall have
been declared by federal or New York State authorities; or (iv) there shall have occurred any
outbreak or escalation of hostilities or any change in financial markets or any calamity or crisis,
either within or outside the United States, that, in the judgment of the Representative, is
material and adverse and makes it impracticable or inadvisable to proceed with the offering, sale
or delivery of the Shares on the Closing Date or the Additional Closing Date, as the case may be,
on the terms and in the manner contemplated by this Agreement, the Pricing Disclosure Package and
the Prospectus.
10. Defaulting Underwriter.
(a) If, on the Closing Date or the Additional Closing Date, as the case may be, any
Underwriter defaults on its obligation to purchase the Shares that it has agreed to purchase
hereunder on such date, the non-defaulting Underwriters may in their discretion arrange for the
purchase of such Shares by other persons satisfactory to the Company on the terms contained in this
Agreement. If, within 24 hours after any such default by any Underwriter, the non-defaulting
Underwriters do not arrange for the purchase of such Shares, then the Company shall be entitled to
a further period of 24 hours within which to procure other persons satisfactory to the
non-defaulting Underwriters to purchase such Shares on such terms. If other persons become
obligated or agree to purchase the Shares of a defaulting Underwriter, either the non-defaulting
Underwriters or the Company may postpone the Closing Date or the Additional Closing Date, as the
case may be, for up to five full business days in order to effect any changes that in the opinion
of counsel for the Company or counsel for the Underwriters may be necessary in the Registration
Statement and the Prospectus or in any other document or arrangement, and the Company agrees to
promptly prepare any amendment or supplement to the Registration Statement and the Prospectus that
effects any such changes. As used in this Agreement, the term “Underwriter” includes, for all
purposes of this Agreement unless the context otherwise requires, any person not listed in Schedule
1 hereto that, pursuant to this Section 10, purchases Shares that a defaulting Underwriter agreed
but failed to purchase.
(b) If, after giving effect to any arrangements for the purchase of the Shares of a defaulting
Underwriter or Underwriters by the non-defaulting Underwriters and the Company as provided in
paragraph (a) above, the aggregate number of Shares that remain unpurchased on the Closing Date or
the Additional Closing Date, as the case may be, does not exceed one-tenth of the aggregate number
of Shares to be purchased on such date, then the Company shall have the right to require each
non-defaulting Underwriter to purchase the number of Shares that such Underwriter agreed to
purchase hereunder on such date plus such Underwriter’s pro rata share
- 26 -
(based on the number of Shares that such Underwriter agreed to purchase on such date) of the
Shares of such defaulting Underwriter or Underwriters for which such arrangements have not been
made.
(c) If, after giving effect to any arrangements for the purchase of the Shares of a defaulting
Underwriter or Underwriters by the non-defaulting Underwriters and the Company as provided in
paragraph (a) above, the aggregate number of Shares that remain unpurchased on the Closing Date or
the Additional Closing Date, as the case may be, exceeds one-tenth of the aggregate amount of
Shares to be purchased on such date, or if the Company shall not exercise the right described in
paragraph (b) above, then this Agreement or, with respect to any Additional Closing Date, the
obligation of the Underwriters to purchase Shares on the Additional Closing Date shall terminate
without liability on the part of the non-defaulting Underwriters. Any termination of this
Agreement pursuant to this Section 10 shall be without liability on the part of the Company, except
that the Company will continue to be liable for the payment of expenses as set forth in Section 11
hereof and except that the provisions of Section 7 hereof shall not terminate and shall remain in
effect.
(d) Nothing contained herein shall relieve a defaulting Underwriter of any liability it may
have to the Company or any non-defaulting Underwriter for damages caused by its default.
11. Payment of Expenses.
(a) Whether or not the transactions contemplated by this Agreement are consummated or this
Agreement is terminated, the Company will pay or cause to be paid all costs and expenses incident
to the performance of its obligations hereunder, including without limitation, (i) the costs
incident to the authorization, issuance, sale, preparation and delivery of the Shares and any taxes
payable in that connection; (ii) the costs incident to the preparation, printing and filing under
the Securities Act of the Registration Statement, the Preliminary Prospectus, any Issuer Free
Writing Prospectus, any Pricing Disclosure Package and the Prospectus (including all exhibits,
amendments and supplements thereto) and the distribution thereof; (iii) the fees and expenses of
the Company’s counsel and independent accountants; (iv) the fees and expenses incurred in
connection with the registration or qualification of the Shares under the state or foreign
securities or blue sky laws of such jurisdictions as the Representative may reasonably designate,
the preparation, printing and distribution of a Blue Sky Memorandum and any offering of Directed
Shares outside of the United States (including the related fees and expenses of counsel for the
Underwriters); (v) the cost of preparing stock certificates; (vi) the costs and charges of any
transfer agent and any registrar; (vii) all expenses and application fees incurred in connection
with any filing with, and clearance of the offering by, FINRA; (viii) all expenses incurred by the
Company in connection with any “road show” presentation to potential investors; (ix) all expenses
and application fees related to the listing of the Shares on the Exchange; and (x) all expenses
related to the offering of Directed Shares.
(b) If (i) this Agreement is terminated pursuant to Section 9, (ii) the Company for any reason
fails to tender the Shares for delivery to the Underwriters or (iii) the Underwriters decline to
purchase the Shares for any reason permitted under this Agreement, the Company agrees to reimburse
the Underwriters for all out-of-pocket costs and expenses (including the reasonable
- 27 -
fees and expenses of their counsel) reasonably incurred by the Underwriters in connection with
this Agreement and the offering contemplated hereby.
12. Persons Entitled to Benefit of Agreement. This Agreement shall inure to the
benefit of and be binding upon the parties hereto and their respective successors and the officers
and directors and any controlling persons referred to in Section 7 hereof. Nothing in this
Agreement is intended or shall be construed to give any other person any legal or equitable right,
remedy or claim under or in respect of this Agreement or any provision contained herein. No
purchaser of Shares from any Underwriter shall be deemed to be a successor merely by reason of such
purchase.
13. Survival. The respective indemnities, rights of contribution, representations,
warranties and agreements of the Company and the Underwriters contained in this Agreement or made
by or on behalf of the Company or the Underwriters pursuant to this Agreement or any certificate
delivered pursuant hereto shall survive the delivery of and payment for the Shares and shall remain
in full force and effect, regardless of any termination of this Agreement or any investigation made
by or on behalf of the Company or the Underwriters.
14. Certain Defined Terms. For purposes of this Agreement, (a) except where otherwise
expressly provided, the term “affiliate” has the meaning set forth in Rule 405 under the Securities
Act; (b) the term “business day” means any day other than a day on which banks are permitted or
required to be closed in New York City; and (c) the term “subsidiary” has the meaning set forth in
Rule 405 under the Securities Act.
15. Miscellaneous.
(a) Authority of X.X. Xxxxxx Securities Inc. Any action by the Underwriters hereunder may be
taken by X.X. Xxxxxx Securities Inc. on behalf of the Underwriters, and any such action taken by
X.X. Xxxxxx Securities Inc. shall be binding upon the Underwriters.
(b) Notices. All notices and other communications hereunder shall be in writing and shall be
deemed to have been duly given if mailed or transmitted and confirmed by any standard form of
telecommunication. Notices to the Underwriters shall be given to the Representative c/o X.X.
Xxxxxx Securities Inc., 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (fax: (000) 000-0000);
Attention: Equity Syndicate Desk. Notices to the Company shall be given to it at 0000 Xxx Xxxxxx,
Xxxxx 000, Xxxxxxxx, Xxxxxxx 00000 (fax: (000) 000-0000; Attention: Chief Financial Officer (with a
copy to General Counsel)).
(c) Governing Law. This Agreement shall be governed by and construed in accordance with the
laws of the State of New York applicable to agreements made and to be performed in such state.
(d) Counterparts. This Agreement may be signed in counterparts (which may include
counterparts delivered by any standard form of telecommunication), each of which shall be an
original and all of which together shall constitute one and the same instrument.
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(e) Amendments or Waivers. No amendment or waiver of any provision of this Agreement, nor any
consent or approval to any departure therefrom, shall in any event be effective unless the same
shall be in writing and signed by the parties hereto.
(f) Headings. The headings herein are included for convenience of reference only and are not
intended to be part of, or to affect the meaning or interpretation of, this Agreement.
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If the foregoing is in accordance with your understanding, please indicate your acceptance of
this Agreement by signing in the space provided below.
| Very truly yours, SYNOVUS FINANCIAL CORP. |
||||
| By: | /s/ Xxxxxx X. Xxxxxxxx | |||
| Name: | Xxxxxx X. Xxxxxxxx | |||
| Title: | Executive Vice President and Chief Financial Officer |
|||
Accepted: April 28, 2010
X.X. XXXXXX SECURITIES INC.
For itself and on behalf of the
several Underwriters listed
in Schedule 1 hereto.
several Underwriters listed
in Schedule 1 hereto.
By: /s/
Xxxxx Xxxxx
Authorized Signatory
Authorized Signatory
