5.75% Subordinated Notes due 2017 FULTON FINANCIAL CORPORATION PURCHASE AGREEMENT
Exhibit
1.1
$100,000,000
5.75% Subordinated Notes due 2017
XXXXXX FINANCIAL CORPORATION
April 26, 2007
Xxxxx, Xxxxxxxx & Xxxxx, Inc.,
As Representative of the several
Underwriters named in Schedule I hereto
000 Xxxxxxx Xxxxxx
0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
As Representative of the several
Underwriters named in Schedule I hereto
000 Xxxxxxx Xxxxxx
0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Xxxxxx Financial Corporation, a Pennsylvania corporation (the “Company”), confirms its
agreement (the “Agreement”) with Xxxxx, Xxxxxxxx & Xxxxx, Inc. (“KBW”) and the other Underwriters
named in Schedule I hereto (the “Underwriters”, which term shall also include any underwriter
substituted as provided pursuant to Section 10 hereof), for whom KBW is acting as the
Representative (the “Representative”), with respect to the issue and sale by the Company and the
purchase by the Underwriters, acting severally and not jointly, of $100,000,000 aggregate principal
amount of its 5.75% Subordinated Notes due 2017 (the “Securities”). The Securities will be issued
in book-entry only form to Cede & Co. as nominee of The Depository Trust Company (“DTC”) pursuant
to the Letter of Representations, to be dated as of the Closing Time (as defined in Section 2
hereof) (the “DTC Agreement”), between the Company and DTC.
The Securities will be issued pursuant to the Indenture, to be dated as of May 1, 2007,
between the Company and Wilmington Trust Company, as Trustee (the “Trustee”), and the First
Supplemental Indenture, to be dated as of May 1, 2007, between the Company and the Trustee
(together, the “Indenture”). The Indenture, the DTC Agreement and this Agreement are hereinafter
referred to collectively as the “Operative Documents.”
The Company has filed with the Securities and Exchange Commission (the “Commission”) an
“automatic shelf registration statement” (as defined in Rule 405 of the rules and regulations (the
“1933 Act Regulations”) of the Commission under the Securities Act of 1933, as amended (the “1933
Act”)) on Form S-3 (No. 333-130718), and a post-effective amendment thereto, covering the
registration of certain securities, including the Securities, under the 1933 Act and the 1933 Act
Regulations, each of which registration statement and post-effective amendment became effective
upon filing under Rule 462(e) of the 1933 Act Regulations (“Rule 462(e)”). Such registration
statement, at any given time, including the
amendments thereto existing at such
time, the exhibits and any schedules thereto on file with
the Commission at such
time, the information incorporated by reference therein pursuant to Item 12
of Form S-3 under the 1933 Act at such time and the information otherwise deemed to be a part
thereof or included therein at such time by the 1933 Act Regulations, is referred to herein as the
“Registration Statement”. The Registration Statement, at the time it originally became effective,
is herein called the “Original Registration Statement” and the post-effective amendment thereto, at
the time it became effective, is herein called the “Post-Effective Amendment”. Promptly after
execution and delivery of this Agreement, the Company will prepare and file a prospectus supplement
relating to the Securities with the Commission in accordance with the provisions of Rule 430B of
the 1933 Act Regulations (“Rule 430B”) and Rule 424(b) of the 1933 Act Regulations (“Rule 424(b)”).
Any information included in such prospectus supplement that was omitted from the Original
Registration Statement, the Post-Effective Amendment or any other post-effective amendment thereto
that is deemed to be part thereof and included therein pursuant to Rule 430B is referred to herein
as the “Rule 430B Information”. The final prospectus and prospectus supplement relating to the
Securities, including the documents incorporated by reference or deemed to be incorporated by
reference therein pursuant to Item 12 of Form S-3 under the 1933 Act, in the form first furnished
to the Underwriters for use in connection with the offering of the Securities, are collectively
referred to herein as the “Prospectus.” Each prospectus and prospectus supplement used in
connection with the offering of the Securities that omitted the Rule 430B Information is herein
called a “preliminary prospectus.” For purposes of this Agreement, all references to the
Registration Statement, the Prospectus or any preliminary prospectus or any amendment or supplement
to any of the foregoing shall be deemed to include the copy filed with the Commission pursuant to
its Electronic Data Gathering, Analysis and Retrieval system (“XXXXX”).
All references in this Agreement to financial statements and schedules and other information
which is “contained”, “included” or “stated” (or other references of like import) in the
Registration Statement, the Prospectus or any preliminary prospectus shall be deemed to include all
such financial statements and schedules and other information which are incorporated by reference
in or otherwise deemed by the 1933 Act Regulations to be a part of or included in the Registration
Statement, the Prospectus or any preliminary prospectus, as the case may be, prior to the execution
of this Agreement; and all references in this Agreement to amendments or supplements to the
Registration Statement, the Prospectus or any preliminary prospectus shall be deemed to include the
filing of any document under the Securities Exchange Act of 1934, as amended (the “1934 Act”),
which is incorporated by reference in or otherwise deemed by the 1933 Act Regulations to be a part
of or included in the Registration Statement, the Prospectus or any preliminary prospectus, as the
case may be, after the execution of this Agreement.
SECTION 1. Representations and Warranties.
The Company represents and warrants to each of the Underwriters as of the date hereof, as of
the Applicable Time (as defined in Section 1(a)(2) hereof) and as of the Closing Time, and agrees
with each of the Underwriters, as follows:
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Act
or form of prospectus), (D) at the time the Company or any person acting on its behalf (within the
meaning, for this subsection only, of Rule 163(c) of the 1933 Act Regulations) made any offer
relating to the Securities in reliance on the exemption of Rule 163 of the 1933 Act Regulations
(“Rule 163”) and (E) at the date hereof, the Company was and is a “well-known seasoned issuer” (as
defined in Rule 405), including not having been and not being an “ineligible issuer” (as defined in
Rule 405). The Registration Statement is an “automatic shelf registration statement” (as defined
in Rule 405), and the Securities, as of the date of their registration on the Post-Effective
Amendment, were, and, as of the date hereof and as of the Closing Time, remain, eligible for
registration by the Company on an “automatic shelf registration statement” under Rule 405. The
Company has not received from the Commission any notice pursuant to Rule 401(g)(2) of the 1933 Act
Regulations objecting to the use of the automatic shelf registration statement form.
At the earliest time that the Company or another offering participant made a bona fide offer
(within the meaning of Rule 164(h)(2) of the 1933 Act Regulations) of the Securities, the Company
was not nor is an “ineligible issuer” (as defined in Rule 405).
Any offer that is a written communication relating to the Securities made by the Company or
any person acting on its behalf (within the meaning, for this subsection only, of Rule 163(c) of
the 1933 Act Regulations) prior to the filing of the Post-Effective Amendment or any amendment
thereto has been filed with the Commission in accordance with the exemption provided by Rule 163
and otherwise complied with the requirements of Rule 163, including, without limitation, the
legending requirement, to qualify such offer for the exemption from Section 5(c) of the 1933 Act
provided by Rule 163.
At the respective times the Post-Effective Amendment and any other post-effective amendment
thereto became effective, at each deemed effective date with respect to the Securities pursuant to
Rule 430B(f)(2) of the 1933 Act Regulations and at the Closing Time, the Registration Statement
complied, complies and will comply in all material respects with the requirements of the 1933 Act,
the 1933 Act Regulations, the Trust Indenture Act of 1939, as amended (the “1939 Act”), and the
rules and regulations of the Commission under the 1939 Act (the “1939 Act Regulations”), and did
not, does not and will not contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements therein not
misleading. Neither the Prospectus nor any amendment or supplement thereto, when read together with
the Prospectus, at the time the Prospectus or any such
amendment or supplement was issued or at the Closing Time, included or will include an untrue
statement of a material fact or omitted or will 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
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misleading. Each preliminary prospectus and the Prospectus complied, when filed with the
Commission, in all material respects with the 1933 Act, 1933 Act Regulations and the 1939 Act, and
each preliminary prospectus and the Prospectus delivered to the Underwriters for use in connection
with the offering of the Securities was identical to the electronically transmitted copies thereof
filed with the Commission pursuant to XXXXX, except to the extent permitted by Regulation S-T.
As of the Applicable Time, any Issuer Free Writing Prospectus (as defined below) and the
Statutory Prospectus (as defined below), when considered together (collectively, as of the
Applicable Time, the “Disclosure Package”), did not 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 under which they were made, not misleading.
As used in this subsection and elsewhere in this Agreement:
“Applicable Time” means 2:30 p.m. (Eastern Daylight Time) on April 26, 2007, or such other
time as agreed by the Company and the Representative.
“Statutory Prospectus” as of any time means the prospectus relating to the Securities that is,
immediately prior to that time, either included in the Registration Statement or deemed to be a
part thereof, including any document incorporated therein by reference immediately prior to that
time and any preliminary prospectus supplement deemed to be a part thereof.
“Issuer Free Writing Prospectus” means any “issuer free writing prospectus” (as defined in
clause (h)(i) of Rule 433 of the 1933 Act Regulations (“Rule 433”)) relating to the Securities that
(i) is required to be filed with the Commission by the Company, (ii) is a “road show that is a
written communication” within the meaning of Rule 433(d)(8)(i), whether or not required to be filed
with the Commission or (iii) is exempt from filing pursuant to Rule 433(d)(5)(i) because it
contains a description of the Securities or of the offering that does not reflect the final terms,
in each case in the form filed or required to be filed with the Commission or, if not required to
be filed, in the form retained in the records of the Company pursuant to Rule 433(g); it being
understood that any Issuer Free Writing Prospectuses are identified on Schedule II hereto.
Any Issuer Free Writing Prospectus, as of its issue date and at all subsequent times through
the completion of the offer and sale of the Securities or until any earlier date that the Company
notified or notifies the Representative in writing, did not, does not and will not include any
information that conflicted, conflicts or will conflict with the information contained in the
Registration Statement or the Prospectus, including any document incorporated therein by reference
and any preliminary or other prospectus deemed to be a part thereof that has not been superseded or
modified.
The representations and warranties in this subsection shall not apply to statements in or
omissions from the Registration Statement or the Prospectus made in reliance upon and in conformity
with any Underwriter’s Information (as defined in Section 6(a)(3) below).
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with the other
information in the preliminary prospectus or the Prospectus, at the time the Post-Effective
Amendment and each other post-effective amendment thereto became effective, did not, and at the
earlier of the time the Prospectus was first used and the first “time of sale,” within the meaning
of Rule 159 under the 1933 Act Regulations, of Securities in this offering and at the Closing Time
will not, include an untrue statement of a material fact or omit to state a material fact necessary
in order to make the statements therein, in the light of the circumstances under which they were
made, not misleading. The documents incorporated or deemed to be incorporated by reference in the
Prospectus, when filed with the Commission, conformed or will conform, as the case may be, in all
material respects to the applicable requirements of the 1934 Act and the rules and regulations of
the Commission thereunder (the “1934 Act Regulations”).
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from, or has adopted
any board resolutions at the request of, any Regulatory Agency (as defined below) that in any
material respect (considered on a consolidated basis) currently relates to or restricts the conduct
of their business or that in any manner relates to their capital adequacy, their credit policies,
or their management (each, a “Regulatory Agreement”), nor has the Company or any of its
subsidiaries been advised in writing by any Regulatory Agency that it is considering issuing or
requesting any such Regulatory Agreement. There is no unresolved violation, criticism or exception
by any Regulatory Agency with respect to any report or statement relating to any examination of the
Company or any of its subsidiaries which, in the reasonable judgment of the Company, is expected to
result in a Material Adverse Effect. As used herein, the term “Regulatory Agency” means any
federal or state agency charged with the supervision or regulation of depository institutions, or
holding companies of depository institutions, or engaged in the insurance of depository institution
deposits, or any court, administrative agency or commission or other governmental agency, authority
or instrumentality having supervisory or regulatory authority with respect to the Company or any of
its subsidiaries.
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are
owned by the Company, directly or through one or more other subsidiaries, free and clear of any
security interest, mortgage, pledge, lien, encumbrance, claim or equitable right. None of the
issued and outstanding shares of capital stock of the Company or the Subsidiary were issued in
violation of any preemptive or similar rights of any shareholder of the Company or the Subsidiary,
as the case may be, arising by operation of law, or under the certificate of incorporation, by-laws
or other organizational documents of the Company or the Subsidiary or under any agreement to which
the Company or the Subsidiary is a party.
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holder’s behalf) the right to require the repurchase, redemption or repayment of all or a
portion of such indebtedness by the Company or the Subsidiary.
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effect,
except when the invalidity of such Governmental Licenses or the failure of such Governmental
Licenses to be in full force and effect would not have a Material Adverse Effect. None of the
Company or any of its subsidiaries has received any notice of proceedings relating to the
revocation or modification of any such Governmental Licenses which, individually or in the
aggregate, in the reasonable judgment of the Company, is reasonably expected to have a Material
Adverse Effect.
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recorded accountability for assets is compared with the existing assets at reasonable
intervals and appropriate action is taken with respect to any differences. Except as described in
the Registration Statement, the Prospectus and the Disclosure Package, since the end of the period
for which the Company has filed with the Commission its most recent Form 10-K under the 1934 Act,
there has been (I) no material weakness in the Company’s internal control over financial reporting
(whether or not remediated) and (II) no change in the Company’s internal control over financial
reporting that has materially affected, or is reasonably likely to materially affect, the Company’s
internal control over financial reporting. The Company has established and maintains disclosure
controls and procedures (as such term is defined in Rules 13a-15(e) and 15d-15(e) of the 1934 Act
Regulations) and such disclosure controls and procedures are effective to perform the functions for
which they were established. Since the end of the period for which the Company has filed with the
Commission its most recent Form 10-K under the 1934 Act, there have been no significant changes in
internal controls or in other factors that could significantly affect internal controls, including
any corrective actions with regard to significant deficiencies and material weaknesses.
Any certificate signed by any duly authorized officer of the Company or any of its
subsidiaries and delivered to the Representative or to counsel for the Underwriters shall be deemed
a representation and warranty by the Company or the applicable subsidiary, as the case may be, to
the Representative as to the matters covered thereby.
SECTION 2. Sale and Delivery to Underwriters; Closing.
On the basis of the representations and warranties herein contained and subject to the terms
and conditions herein set forth, the Company agrees to sell to each Underwriter,
severally and not jointly, and each Underwriter, severally and not jointly, agrees to purchase
from the Company, the aggregate principal amount of Securities set forth opposite the name of such
Underwriter on Schedule I hereto, at a purchase price equal to 99.064% of the aggregate principal
amount thereof.
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Deliveries of a certificate or certificates for the Securities shall be made at the offices of
Xxxxxxx Xxxxxxxx & Xxxx llp in The City of New York, New York, or such other place as may
be agreed to by the Representative and the Company, and payment of the purchase price for the
Securities shall be made by the Representative to the Company by wire transfer of immediately
available funds contemporaneous with closing at such place as shall be agreed upon by the
Representative and the Company, no later than 10:00 a.m., New York City time, on May 1, 2007 or
such other time not later than ten (10) business days after such date as shall be agreed upon by
the Representative and the Company (such time and date of payment and delivery being herein called
the “Closing Time”).
It is understood that each Underwriter has authorized the Representative, for its account, to
accept delivery of, receipt for, and make payment of the purchase price for, the Securities which
it has agreed to purchase. KBW, individually and not as Representative of the Underwriters, may
(but shall not be obligated to) make payment of the purchase price for the Securities to be
purchased by any Underwriter whose funds have not been received by the Closing Time, but such
payment shall not relieve such Underwriter from its obligations hereunder.
Payment for the Securities purchased by the Underwriters shall be made to the Company by wire
transfer of immediately available funds to a bank designated by the Company, against delivery to
the Representative for the respective accounts of the Underwriters of certificates for the
Securities to be purchased by them. Certificates for the Securities shall be in such denominations
and registered in such names as the Representative may request in writing at least two business
days prior to the Closing Time. All certificates for the Securities shall be made available for
examination and packaging, if applicable, by the Representative in The City of New York on the
business day prior to the Closing Time.
In performing its duties under this Agreement, the Underwriters shall be entitled to rely upon
any notice, signature or writing that the Underwriters shall in good faith believe to be genuine
and to be signed or presented by a proper party or parties. The Underwriters may rely upon any
opinions or certificates or other documents delivered by the Company or its counsel or designees to
them.
SECTION 3. Covenants of the Company. The Company covenants with the Underwriters as
follows:
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Commission of any stop order suspending the effectiveness of the Registration Statement or such new
registration statement or of any order preventing or suspending the use of any preliminary
prospectus or the Prospectus, or of the suspension of the qualification of the Securities for
offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for
any of such purposes or of any examination pursuant to Section 8(e) of the 1933 Act concerning the
Registration Statement and (v) if the Company becomes the subject of a proceeding under Section 8A
of the 1933 Act. With respect to the Securities, subject to Section 3(e), the Company will comply
with the requirements of Rule 430B, will prepare the Prospectus in the form approved by the
Representative, will effect the filings required under Rule 424(b) in the manner and within the
time period specified therein (without reliance on Rule 424(b)(8)) and will take such steps as they
deem necessary to ascertain promptly whether the Prospectus transmitted for filing under Rule
424(b) under the 1933 Act Regulations was received for filing by the Commission and, in the event
that it was not, it will promptly file such Prospectus. The Company will use its commercially
reasonable efforts to prevent the issuance of any stop order or other order and, if any stop order
or other order is issued, to obtain the lifting thereof as soon as possible. The Company shall pay
the required filing fees of the Commission relating to the Securities within the time required by
Rule 456(b)(1) (i) of the 1933 Act Regulations without regard to the proviso therein and otherwise
in accordance with Rules 456(b) and 457(r) of the 1933 Act Regulations.
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the distribution of the
Securities by the Underwriters, the Company will immediately notify the Representative, and confirm
such notice in writing, of (x) any filing made by the Company of information relating to the
offering of the Securities with any securities exchange or any other regulatory body in the United
States, and (y) any event or condition that results or is reasonably likely to result in a Material
Adverse Effect, which (i) makes any statement in the Prospectus false or misleading or (ii) which
is not disclosed in the Prospectus. If, at any time when a prospectus is required by the 1933 Act
to be delivered in connection with sales of the Securities, any event shall occur as a result of
which it is necessary, in the reasonable opinion of the Company, its counsel, the Representative or
counsel to the Underwriters, to amend or supplement the Prospectus in order that the Prospectus not
include any untrue statement of a material fact or omit to state a material fact necessary in order
to make the statements therein not misleading in the light of the circumstances existing at the
time it is delivered to purchasers, or if for any other reason it shall be necessary, in the
reasonable opinion of the Company, its counsel, the Representative or counsel to the Underwriters,
during such period to amend the Registration Statement or to file a new registration statement or
to amend or supplement the Prospectus to comply with the 1933 Act or the 1933 Act Regulations, the
Company will forthwith amend the Registration Statement, file such registration statement and/or
amend or supplement the Prospectus, subject to Section 3(e), so as to correct such untrue statement
or omission or effect such compliance. If at any time following the Applicable Time or at any time
following the issuance of an Issuer Free Writing Prospectus any event shall occur or condition
shall exist as a result of which the Disclosure Package or such Issuer Free Writing Prospectus,
individually or together with other information that is part of the Disclosure Package, as the case
may be, conflicted or would conflict with the information contained in the Registration Statement
or any other registration statement relating to the Securities or included or would include an
untrue statement of a material fact or omitted or would omit to state a material fact necessary in
order to make the statements therein, in the light of the circumstances prevailing at that
subsequent time, not misleading, the Company will promptly notify the Representative and will
promptly amend or supplement, at the Company’s own expense, the Disclosure Package or such Issuer
Free Writing Prospectus, as the case may be, to eliminate or correct such conflict, untrue
statement or omission.
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(g) DTC. The Company will cooperate with the Underwriters and use its commercially reasonable
efforts to permit the Securities to be eligible for clearance, settlement and trading through the
facilities of DTC.
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Representative, it
has not made and will not make any offer relating to the Securities that would constitute an
“issuer free writing prospectus” (as defined in Rule 433) or that would otherwise constitute a
“free writing prospectus” (as defined in Rule 405) required to be filed with the Commission. Any
such free writing prospectus consented to by the Company and the Representative is referred to
herein as a “Permitted Free Writing Prospectus.” The Company represents that it has treated, and
agrees that it will treat, each Permitted Free Writing Prospectus as an “issuer free writing
prospectus” (as defined in Rule 433(h)(i)) and have complied and will comply with the requirements
of Rule 433 applicable to any Permitted Free Writing Prospectus, including timely filing with the
Commission where required, legending and record keeping.
Subject to the consent of the Representative required in the immediately preceding paragraph,
the Company will prepare a final term sheet relating solely to the final pricing terms of the
Securities and will file such final term sheet within the period required by Rule 433(d)(5)(ii)
following the date such final terms have been established for such Securities. Any such final term
sheet is an Issuer Free Writing Prospectus and a Permitted Free Writing Prospectus for purposes of
this Agreement. Notwithstanding anything to the contrary contained herein, the Company consents to
the use by any Underwriter of a free writing prospectus that contains only (a) (i) information
describing the preliminary terms of the Securities generally or the Securities specifically or
their offering or (ii) information that describes the final terms of the Securities or their
offering and that is or is to be included in the final term sheet of the Company contemplated in
the first sentence of this paragraph or (b) other customary information that is not “issuer
information,” as defined in Rule 433.
SECTION 4. Payment of Expenses.
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reimburse
such Underwriter for such reasonable and documented fees and expenses whether or not the
transactions contemplated hereby are consummated.
SECTION 5. Conditions of Underwriter’s Obligations. The obligations of the several
Underwriters hereunder are subject to the accuracy of the representations and warranties of the
Company contained in Section 1 hereof or in certificates of any officer of the Company or any of
its subsidiaries delivered pursuant to the provisions hereof, to the performance by the Company of
its obligations hereunder required to be performed prior to Closing Time, and to the following
further conditions:
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certificate of
the Chief Executive Officer or the President of the Company and of the Chief Financial Officer of
the Company, dated the Closing Time, to the effect that (i) there has been no such Material Adverse
Effect, (ii) the representations and warranties in Section 1 hereof were true and correct when made
and are true and correct with the same force and effect as though expressly made at and as of the
Closing Time, and (iii) the Company has complied with all agreements and satisfied all conditions
on their part to be performed or satisfied at or prior to the Closing Time.
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taken by the Company in connection with the issuance and sale of the Securities as herein
contemplated shall be reasonably satisfactory in form and substance to the Representative and
counsel for the Underwriters.
SECTION 6. Indemnification.
(1) against any and all loss, liability, claim, damage and expense whatsoever, as incurred,
arising out of (A) any untrue statement or alleged untrue statement of a material fact included in
the Registration Statement (or any amendment thereto) or the omission or alleged omission therefrom
of a material fact required to be stated therein or necessary to make the statements therein not
misleading or (B) any untrue statement or alleged untrue statement of a material fact included in
any preliminary prospectus, the Disclosure Package, the Prospectus or any Issuer Free Writing
Prospectus (or any amendment or supplement thereto), or the omission or alleged omission therefrom
of a material fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(2) against any and all loss, liability, claim, damage and expense whatsoever, as incurred, to
the extent of the aggregate amount paid in settlement of any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened, or of any claim whatsoever
based upon any such untrue statement or omission, or any such alleged untrue statement or omission;
provided that (subject to Section 6(d) hereof) any such settlement is effected with the written
consent of the Company; and
(3) against any and all expense whatsoever, as incurred (including the fees and disbursements
of counsel chosen by the Representative), reasonably incurred in investigating, preparing or
defending against any litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission, to the extent that any such expense is
not paid under (1) or (2) above;
provided, however, that this indemnity agreement shall not apply to any loss, liability, claim,
damage or expense to the extent arising out of any untrue statement or omission or alleged untrue
statement or omission made in reliance upon and in conformity with information furnished to the
Company by the Underwriters through the Representative for inclusion in the Prospectus (or any
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amendment or supplement thereto) and the parties hereto agree that such information consists only
of the following: the third and fourth sentences of the paragraph under the heading “Risk Factors –
There may be no active market for the subordinated notes” on page S-11 of each of the preliminary
prospectus supplement and the Prospectus and the third, seventh, eighth and ninth paragraphs under
the heading “Underwriting” beginning on page S-36 of each of the preliminary prospectus supplement
and the Prospectus (collectively, the “Underwriters’ Information”).
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proceeding or claim and (ii) does not include a statement as to or an admission of fault,
culpability or a failure to act by or on behalf of any indemnified party.
SECTION 7. Contribution. In order to provide for just and equitable contribution in
circumstances under which the indemnification provided for in Section 6 hereof is for any reason
held to be unavailable to an indemnified party or insufficient in respect of any losses,
liabilities, claims, damages or expenses referred to therein, then each indemnifying party shall
contribute to the aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, (i) in such proportion as is appropriate to
reflect the relative benefits received by the Company, on the one hand, and the Underwriters, on
the other hand, from the offering of the Securities pursuant to this Agreement 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) above but also the
relative fault of the Company, on the one hand, and the Underwriters, on the other hand, in
connection with the statements or omissions which resulted in such losses, liabilities, claims,
damages or expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Company, on the one hand, and the Underwriters, on the
other hand, in connection with the offering of the Securities pursuant to this Agreement shall be
deemed to be in the same respective proportions as the total net proceeds from the offering of the
Securities pursuant to this Agreement (before deducting expenses) received by the Company and the
total commission received by the Underwriters bears to the aggregate initial offering price of the
Securities.
The relative fault of the Company, on the one hand, and the Underwriters, on the other hand,
shall be determined by reference to, among other things, whether any such untrue or alleged untrue
statements of a material fact or omission or alleged omission to state a material fact relates to
information supplied by the Company or by the Underwriters and the parties’ relative intent,
knowledge, access to information and opportunity to correct or prevent such statement or omission.
The 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
which does not take account of the equitable considerations referred to above in this Section 7.
The aggregate amount of losses, liabilities, claims, damages and expenses incurred by an
indemnified party and referred to above in this Section 7 shall be deemed to include any legal or
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other expenses reasonably incurred by such indemnified party in investigating, preparing or
defending against any litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at which such Securities
were sold by it to its investors exceeds the amount of any damages which 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
0000 Xxx) shall be entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation.
For purposes of this Section 7, each person, if any, who controls an Underwriter within the
meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act and the respective partners,
directors, officers, employees and agents of such Underwriter or any such controlling person shall
have the same rights to contribution as such Underwriter, while each officer, employee, agent and
director of the Company, and each person, if any, who controls the Company within the meaning of
Section 15 of the 1933 Act or Section 20 of the 1934 Act shall have the same rights to contribution
as the Company. The obligations of the Underwriters in this Section 7 to contribute are several in
proportion to their respective underwriting obligations and not joint.
SECTION 8. Representations, Warranties and Agreements to Survive Delivery. All
representations, warranties and agreements contained in this Agreement or in certificates of
officers of the Company or its subsidiaries submitted pursuant hereto shall remain operative and in
full force and effect, regardless of any investigation made by or on behalf of any Underwriter or
controlling person, or by or on behalf of the Company, and shall survive delivery of the Securities
to the Underwriters.
SECTION 9. Termination of Agreement.
(a) Termination; General. The Representative may terminate this Agreement, by notice to the
Company, at any time at or prior to the Closing Time if, since the time of execution of this
Agreement or since the respective dates as of which information is given in the Disclosure Package
or the Prospectus, (i) there has occurred any Material Adverse Effect, or (ii) there has occurred
any material adverse change in the financial markets in the United States, any outbreak of
hostilities or escalation thereof or any other calamity or crisis, or any change or development
involving a prospective change in national political, financial or economic conditions, in each
case the effect of which is such as to make it, in the reasonable judgment of the Representative,
impracticable to market the Securities or to enforce contracts for the sale of
the Securities, or (iii) trading in any securities of the Company has been suspended or
limited by the Commission or by the NASDAQ Global Market, or if trading generally on the American
Stock Exchange, the New York Stock Exchange or the NASDAQ Global Market has been suspended or
limited, or minimum or maximum prices for trading have been fixed, or maximum
23
ranges for prices
have been required, by any of said exchanges or by such system or by order of the Commission, the
NASD or any other governmental authority, or (iv) a banking moratorium has been declared by the
United States, New York or Pennsylvania authorities or a material disruption has occurred in
commercial banking or securities settlement and clearances services in the United States.
SECTION 10. Defaulting Underwriter.
(a) If, at the Closing Time, any Underwriter defaults on its obligation to purchase the
Securities that it has agreed to purchase hereunder, the Representative may in its discretion
arrange for the purchase of such Securities by other persons satisfactory to the Company on the
terms contained in this Agreement. If other persons become obligated or agree to purchase the
Securities of a defaulting Underwriter, either the Representative or the Company may postpone the
Closing Time for up to five (5) 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
Prospectus or in any other document or arrangement, and the Company agrees to promptly prepare any
amendment or supplement to 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 I hereto that, pursuant to this Section 10,
purchases Securities that a defaulting Underwriter agreed but failed to purchase.
(b) If, after giving effect to any arrangement for the purchase of the Securities of a
defaulting Underwriter or Underwriters by the Representative and the Company as provided in
paragraph (a) above, the aggregate principal amount of such Securities that remains unpurchased
does not exceed 10% of the aggregate principal amount of all of the Securities, then the Company
shall have the right to require each non-defaulting Underwriter to purchase the aggregate principal
amount of Securities that such Underwriter agreed to purchase hereunder plus such Underwriter’s
pro rata share (based on the aggregate principal amount of Securities that such
Underwriter agreed to purchase hereunder) of the Securities of such defaulting Underwriter or
Underwriters for which such arrangement has not been made.
(c) If, after giving effect to any arrangements for the purchase of the Securities of a
defaulting Underwriter or Underwriters by the non-defaulting Underwriter and the Company as
provided in paragraph (a) above, the aggregate principal amount of such Securities that remains
unpurchased exceeds 10% of the aggregate principal amount of all of the Securities, or if the
Company shall not exercise the right described in paragraph (b) above, then this Agreement 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 4 hereof and except that the provisions of Sections 1, 6 and 7 hereof shall
not terminate and shall remain in effect.
24
(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.
SECTION 11. Notices. All notices and other communications hereunder shall be in
writing and shall be deemed to have been duly given if mailed or transmitted by any standard form
of telecommunication. Notices to the Underwriters shall be directed to Xxxxx, Xxxxxxxx & Xxxxx,
Inc., 000 Xxxxxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxx Xxxxxxxx, General
Counsel and Executive Vice President, with a copy to Sidley Austin llp, 000 Xxxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxx X. Xxxxxxx; and notices to the Company shall
be directed to it at X.X. Xxx 0000, Xxxxxxxxx, Xxxxxxxxxxxx 00000, Attention: General Counsel, with
a copy to Xxxxxxx Xxxxxxxx & Wood llp, Xxx Xxxxx Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Xxxxxx Xxxxxx.
SECTION 12. Parties. This Agreement shall inure to the benefit of and be binding upon
each Underwriter, the Company and their respective successors. Nothing expressed or mentioned in
this Agreement is intended or shall be construed to give any person, firm or corporation, other
than the Underwriters and the Company, and their respective successors and the controlling persons
and other persons referred to in Sections 1, 6 and 7 hereof and their heirs and legal
representatives, any legal or equitable right, remedy or claim under or in respect of this
Agreement or any provision herein contained. This Agreement and all conditions and provisions
hereof are intended to be for the sole and exclusive benefit of the Underwriters and the Company
and their respective successors, and said controlling persons and other persons and their heirs and
legal representatives, and for the benefit of no other person, firm or corporation. No purchaser
of Securities from any Underwriter shall be deemed to be a successor by reason merely of such
purchase.
SECTION 13. Counterparts; Facsimile. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, and signature pages may be
delivered by facsimile, each of which when so executed shall be deemed to be an original and all of
which taken together shall constitute one and the same agreement.
SECTION 14. GOVERNING LAW; JURISDICTION. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAW
PRINCIPLES OF SAID STATE OTHER THAN SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW.
THE COMPANY ON BEHALF OF ITSELF AND ITS SUBSIDIARIES HEREBY IRREVOCABLY SUBMITS TO THE
EXCLUSIVE JURISDICTION OF THE FEDERAL AND NEW YORK STATE COURTS LOCATED IN THE CITY OF NEW YORK IN
CONNECTION WITH ANY SUIT, ACTION OR PROCEEDING RELATED TO THIS AGREEMENT OR ANY OF THE MATTERS
CONTEMPLATED HEREBY,
IRREVOCABLY WAIVES ANY DEFENSE OF LACK OF PERSONAL JURISDICTION AND IRREVOCABLY AGREES THAT
ALL CLAIMS IN RESPECT OF ANY SUIT, ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN ANY SUCH
COURT. THE COMPANY ON BEHALF OF ITSELF AND ITS SUBSIDIARIES
25
IRREVOCABLY WAIVES, TO THE FULLEST
EXTENT IT MAY EFFECTIVELY DO SO UNDER APPLICABLE LAW, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER
HAVE TO THE LAYING OF VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT AND
ANY CLAIM THAT ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN
INCONVENIENT FORUM.
SECTION 15. Effect of Headings. The Article and Section headings herein are for
convenience only and shall not affect the construction hereof.
SECTION 16 Nature of Relationship. The Company acknowledges and agrees that (a) the
offering or purchase and sale of the Securities pursuant to this Agreement, including the
determination of the terms of the Securities and the offering price thereof, is an arm’s-length
commercial transaction between the Company, on the one hand, and the several Underwriters, on the
other hand, (b) in connection with the offering pursuant to this Agreement and the process leading
to such offering each Underwriter is and has been acting solely as a principal and not a fiduciary
of the Company or its stockholders, creditors, employees or any other party, (c) no Underwriter has
assumed or will assume an advisory or fiduciary responsibility in favor of the Company with respect
to the offering pursuant to this Agreement or the process leading thereto (irrespective of whether
such Underwriter has advised or is currently advising the Company on other matters) and no
Underwriter has any obligation to the Company with respect to the offering pursuant to this
Agreement except the obligations expressly set forth in this Agreement, (d) the Underwriters and
their respective affiliates may be engaged in a broad range of transactions that involve interests
that differ from those of the Company and (e) the Underwriters have not provided any legal,
accounting, regulatory or tax advice with respect to the offering contemplated hereby and the
Company has consulted its own legal, accounting, regulatory and tax advisors to the extent it
deemed appropriate.
26
If the foregoing is in accordance with your understanding of our agreement, please sign and
return to the Company a counterpart hereof, whereupon this instrument, along with all counterparts,
will become a binding agreement among the Underwriters and the Company in accordance with its
terms.
Very truly yours, XXXXXX FINANCIAL CORPORATION |
||||
By: | /s/ Xxxxxxx X. Xxxxxx | |||
Name: | Xxxxxxx X. Xxxxxx | |||
Title: | Senior Executive Vice President and Chief Financial Officer | |||
CONFIRMED AND ACCEPTED,
as of the date first above written:
as of the date first above written:
XXXXX, XXXXXXXX & XXXXX, INC.
BB&T CAPITAL MARKETS, A DIVISION OF
XXXXX & STRONGFELLOW, INC.
BB&T CAPITAL MARKETS, A DIVISION OF
XXXXX & STRONGFELLOW, INC.
X.X. XXXXXX SECURITIES INC.
SUNTRUST CAPITAL MARKETS, INC.
SUNTRUST CAPITAL MARKETS, INC.
By: XXXXX, XXXXXXXX & XXXXX, INC. | ||||
By:
|
/s/ Xxxxxx Xxxxxxxx | |||
Title: Managing Director |
For itself and as Representative of the other Underwriters named in Schedule I hereto.
SCHEDULE I
Aggregate Principal | ||||
Amount of | ||||
Name of Underwriter | Securities to be Purchased | |||
Xxxxx, Xxxxxxxx & Xxxxx, Inc. |
$ | 50,000,000 | ||
BB&T Capital Markets, a division of
Xxxxx & Strongfellow, Inc. |
16,667,000 | |||
X.X. Xxxxxx Securities Inc. |
16,667,000 | |||
Suntrust Capital Markets, Inc. |
16,666,000 | |||
Total |
$ | 100,000,000 | ||
SCHEDULE II
![(FULTON FINANCIAL LOGO)](https://www.sec.gov/Archives/edgar/data/700564/000089322007001579/w34212w3421200.gif)
$100,000,000
Xxxxxx Financial Corporation
5.75% Subordinated Notes due May 1, 2017
Xxxxxx Financial Corporation
5.75% Subordinated Notes due May 1, 2017
Issuer: |
Xxxxxx Financial Corporation | |
Amount Offered: |
$ 100 million aggregate principal amount of Subordinated Notes (the “Securities”) | |
Trade Date: |
April 26, 2007 | |
Settlement Date: |
May 1, 2007 (T+3) | |
Maturity: |
May 1, 2017 | |
Coupon: |
5.75% | |
Payment Dates: |
Semiannual, 30/360 day count: May 1 and November 1 | |
Initial Coupon November 1, 2007 | ||
Yield to Investors: |
5.788% | |
Spread: |
+110 basis points versus UST 4.625% due 02/15/17 (Strike Price: 99-16, Strike Yield: 4.688%) | |
Purchase Price (to Investors): |
99.714% | |
Gross Spread: |
0.65% | |
Price to Issuer: |
$ 99,064,000 (99.064%) | |
Redemption: |
The notes are not subject to redemption or repayment prior to maturity | |
Credit Rating: |
A3/A- (Xxxxx’x/Fitch) | |
Ranking: |
The Securities will be general unsecured subordinated obligations of the Issuer and will rank equally with all of the Issuer’s other unsecured subordinated obligations from time to time outstanding, provided that the Securities will rank senior to the junior subordinated debentures issued to the Issuer’s capital trust subsidiaries, and will rank junior to all of the Issuer’s existing and future senior indebtedness to the extent and manner set forth in the subordinated debt indenture under which the Securities will be issued. | |
Method of Distribution: |
SEC Registered, Shelf Takedown | |
Lead Manager: |
Xxxxx, Xxxxxxxx & Xxxxx | |
Co-Manager: |
BB&T Capital Markets | |
Co-Manager: |
JPMorgan | |
Co-Manager: |
SunTrust Xxxxxxxx Xxxxxxxx | |
CUSIP: |
360271 AH3 | |
The Issuer has filed a registration statement (including a prospectus)with the SEC for the offering to which this communication relates. Before you invest, you should read the prospectus in that registration statement and other documents the Issuer has filed with the SEC for more complete information about the Issuer and this offering. You may get these documents for free by visiting XXXXX on the SEC Web site at xxx.xxx.xxx. Alternatively, the Issuer, any underwriter or any dealer participating in this offering will arrange to send you the prospectus if you request it by calling Xxxxx, Xxxxxxxx & Xxxxx at 1-800-966-1559. | ||
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ANNEX A
Pursuant to Section 5(b)(A) of the Agreement, Barley Xxxxxx LLC, counsel for the Company, shall
deliver an opinion in substantially the following form. Capitalized terms not defined herein shall
have the respective meanings ascribed to them in the Agreement.
A-1
the Securities have been duly authorized by all necessary corporate action on the part of the
Company, and do not and will not, whether with or without the giving of notice or passage of time
or both, (i) to our knowledge, violate, conflict with or constitute a breach of, or default or
Repayment Event under, or result in the creation or imposition of any, security interest, mortgage,
pledge, lien, charge, encumbrance, claim or equitable right upon any assets of the Company or the
Subsidiary pursuant to, any of the Agreements and Instruments (including, without limitation, the
Revolving Credit Agreement), (ii) result in any violation of any provision of the charter, bylaws
or other organizational document of the Company or the Subsidiary or (iii) result in any violation
by the Company or the Subsidiary of any applicable law, statute, rule, regulation, or, to our
knowledge, judgment, order, writ or decree (including, without limitation, the Banking Regulations)
of any state or federal government, governmental authority, agency or instrumentality or court,
domestic or foreign (including, without limitation, the Banking Regulators).
A-2
which Xxxxxx Financial is subject can be a competitive disadvantage” and the
statements in the Company’s 10-K for the fiscal year ended December 31, 2006 under the caption
“Business-Supervision and Regulation”, to the extent that such statements constitute matters of law
or legal conclusions or descriptions of statutes, regulations, legal or governmental proceedings or
contracts, have been reviewed by us and are accurate summaries in all material respects.
Nothing has come to our attention that would lead us to believe that (i) the Registration
Statement or any amendment thereto (except for financial statements and schedules and other
financial data included or incorporated by reference therein or omitted therefrom and the Form T-1,
as to which we need make no statement), at the time the Post-Effective Amendment became effective
on April 25, 2007 or at each deemed effective date with respect to the Securities pursuant to Rule
430B(f)(2) of the 1933 Act Regulations, contained an untrue statement of a material fact or omitted
to state a material fact required to be stated therein or necessary to make the statements therein
not misleading; (ii) the Prospectus or any amendment or supplement thereto (except for financial
statements and schedules and other financial data included or incorporated by reference therein or
omitted therefrom and the Form T-1, as to which we need make no statement), at the time the
Prospectus was issued, at the time any such amended or supplemented prospectus was issued or at the
Closing Time, included or includes an untrue statement of a material fact or omitted or omits to
state a material fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; or (iii) Disclosure Package (except for
the financial statements and schedules and other financial data included or incorporated by
reference therein or omitted therefrom, as to which we need make no statement), as of the
Applicable Time, contained any untrue statement of a material fact or omitted to state any material
fact necessary in order to make the statements therein, in the light of circumstances under which
they were made, not misleading.
A-3
ANNEX B
Pursuant to Section 5(b)(B) of the Agreement, Xxxx X. Xxxxx, Vice President and Deputy General
Counsel of the Company, shall deliver an opinion in substantially the following form. Capitalized
terms not defined herein shall have the respective meanings ascribed to them in the Agreement.
B-1
Company and do not and will not, whether with or without the giving of notice or passage of
time or both, result in any violation of any provision of the charter, bylaws or other
organizational document of the Company or the Subsidiary.
B-2
ANNEX C
Pursuant to Section 5(b)(C) of the Agreement, Xxxxxxx Xxxxxxxx & Xxxx LLP,
counsel for the Company, shall deliver an opinion in substantially the following form. Capitalized
terms not defined herein shall have the respective meanings ascribed to them in the Agreement.
C-1
reference therein, as of their respective effective or issue dates (including, without
limitation, each deemed effective date with respect to the Securities pursuant to Rule 430B(f)(2)
of the 1933 Act Regulations), other than the financial statements and supporting schedules included
therein or omitted therefrom and the trustees’ Statement of Eligibility on Form T-1 (collectively,
the “Form T-1”), as to which we need express no opinion, complied as to form in all material
respects with the requirements of the 1933 Act and the 1933 Act Regulations.
(h) The statements in the Disclosure Package and the Prospectus under the caption “Certain
U.S. Federal Income Tax Consequences” and “ERISA Considerations”, to the extent that such
statements constitute matters of law or legal conclusions or descriptions of statutes, regulations,
legal or governmental proceedings or contracts, have been reviewed by us and are accurate summaries
in all material respects.
Nothing has come to our attention that would lead us to believe that (i) the Registration
Statement or any amendment thereto (except for financial statements and schedules, other economic,
statistical and financial data included or incorporated by reference therein, and the Form T-1, as
to which we need make no statement) at the time the Post-Effective Amendment became effective on
April 25, 2007 or at each deemed effective date with respect to the Securities pursuant to Rule
430B(f)(2) of the 1933 Act Regulations, contained an untrue statement of a material fact or omitted
to state a material fact required to be stated therein or necessary to make the statements therein
not misleading; (ii) the Prospectus or any amendment or supplement thereto (except for financial
statements and schedules and other economic, statistical and financial data included or
incorporated by reference therein and the Form T-1, as to which we need make no statement), at the
time the Prospectus was issued, at the time any such amended or supplemented Prospectus was issued
or at the Closing Time, included or includes an untrue statement of a material fact or omitted or
omits to state a material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading; or (iii) Disclosure Package (except
for the financial statements and schedules and other economic, statistical and financial data
included or incorporated by reference therein, as to which we need make no statement), as of the
Applicable Time, contained any untrue statement of a material fact or omitted to state any material
fact necessary in order to make the statements therein, in the light of circumstances under which
they were made, not misleading.
C-2