7,700,000 Shares* PINNACLE FINANCIAL PARTNERS, INC. Common Stock UNDERWRITING AGREEMENT
Exhibit 1.1
7,700,000 Shares*
PINNACLE FINANCIAL PARTNERS, INC.
Common Stock
UNDERWRITING AGREEMENT
St. Petersburg, Florida
June 11, 2009
June 11, 2009
Xxxxxxx Xxxxx & Associates, Inc.
As Representative of the Several Underwriters
As Representative of the Several Underwriters
listed on Schedule I hereto
000 Xxxxxxxx Xxxxxxx
Xx. Xxxxxxxxxx, Xxxxxxx 00000
Xx. Xxxxxxxxxx, Xxxxxxx 00000
Ladies and Gentlemen:
Pinnacle Financial Partners, Inc., a Tennessee corporation (the “Company”), proposes, subject
to the terms and conditions stated herein, to issue and sell to the several Underwriters named in
Schedule I hereto (the “Underwriters”), an aggregate
of 7,700,000 shares of its common stock,
par value $1.00 per share (the “Common Stock”). The aggregate of 7,700,000 shares to be purchased
from the Company are called the “Firm Shares.” In addition, the Company has agreed to sell to the
Underwriters, upon the terms and conditions stated herein, up to an additional 1,155,000 shares of
Common Stock (the “Additional Shares”) to cover over-allotments by the Underwriters, if any. The
Firm Shares and the Additional Shares are collectively referred to in this Agreement as the
“Shares.” Xxxxxxx Xxxxx & Associates, Inc. is acting as the representative of the several
Underwriters and in such capacity is referred to in this Agreement as the “Representative.”
The Company wishes to confirm as follows its agreement with you and the other several
Underwriters, on whose behalf you are acting, in connection with the several purchases of the
Shares from the Company.
1. Registration Statement and Prospectus. The Company has prepared and filed with the
Securities and Exchange Commission (the “Commission”) in accordance with the provisions of the
Securities Act of 1933, as amended, and the rules and regulations of the Commission thereunder
(collectively, the “Act”), a registration statement on Form S-3 (File No. 333-159395),
| * | Plus an additional 1,155,000 shares subject to Underwriter’s over-allotment option. |
which contains a base prospectus (the “Base Prospectus”) relating to the Shares. Such
registration statement, as amended, including the financial statements, exhibits and schedules
thereto, at each time of effectiveness under the Act, including any required information deemed to
be part thereof at the time of effectiveness pursuant to Rule 430B under the Act or the Securities
Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder
(collectively, the “Exchange Act”) is called the “Registration Statement.” Any preliminary
prospectus supplement to the Base Prospectus that describes the Shares and the offering thereof and
is used prior to filing of the Prospectus is called, together with the Base Prospectus, a
“Preliminary Prospectus.” The term “Prospectus” shall mean the prospectus supplement relating to
the Shares, together with the Base Prospectus, that is first filed pursuant to Rule 424(b) after
the date and time that this Agreement is executed and delivered by the parties hereto. If the
Company files another registration statement with the Commission to register a portion of the
Shares pursuant to Rule 462(b) under the Act (the “Rule 462 Registration Statement”), then any
reference to “Registration Statement” herein shall be deemed to include the registration statement
on Form S-3 (File No. 333-159395) and the Rule 462 Registration Statement, as each such
registration statement may be amended pursuant to the Act. For purposes of this Agreement, “free
writing prospectus” has the meaning ascribed to it in Rule 405 under the Act, and “Issuer Free
Writing Prospectus” shall mean each free writing prospectus prepared by or on behalf of the Company
or used or referred to by the Company in connection with the offering of the Shares. “Time of Sale
Information” shall mean the Preliminary Prospectus together with the free writing prospectuses, if
any, identified in Schedule II hereto and the pricing-related
information set forth in Schedule III hereto. All references in this Agreement to the Registration
Statement, the Rule 462 Registration Statement, a Preliminary Prospectus, the Prospectus or the
Time of Sale Information, or any amendments or supplements to any of the foregoing, shall be deemed
to refer to and include any documents incorporated by reference therein, and shall include any copy
thereof filed with the Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval
System (“XXXXX”). 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 Act, as of the date of the Registration
Statement, such Preliminary Prospectus or the Prospectus, as the case may be, and any reference to
any amendment or supplement 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
Exchange Act that, upon filing, are incorporated by reference therein, as required by paragraph (b)
of Item 12 of Form S-3. As used herein, the term “Incorporated Documents” means the documents that
at the time of filing are incorporated by reference in the Registration Statement, any Preliminary
Prospectus, the Prospectus or any amendment or supplement thereto.
2. Agreements to Sell and Purchase. The Company hereby agrees to issue and sell the
Firm Shares to the Underwriters and, upon the basis of the representations, warranties and
agreements of the Company herein contained and subject to all the terms and conditions set forth
herein, each Underwriter agrees, severally and not jointly, to purchase from the Company at a
purchase price of $12.35 per Share (the “purchase price per Share”), the number of Firm Shares
set forth opposite the name of such Underwriter in Schedule I hereto.
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The Company hereby also agrees to sell to the Underwriters, and, upon the basis of the
representations, warranties and agreements of the Company herein contained and subject to all the
terms and conditions set forth herein, the Underwriters shall have the right for 30 days from the
date of the Prospectus to purchase from the Company up to 1,155,000 Additional Shares at the
purchase price per Share for the Firm Shares. The Additional Shares may be purchased solely for the
purpose of covering over-allotments, if any, made in connection with the offering of the Firm
Shares. If any Additional Shares are to be purchased, each Underwriter, severally and not jointly,
agrees to purchase the number of Additional Shares (subject to such adjustments as you may
determine to avoid fractional shares) that bears the same proportion to the total number of
Additional Shares to be purchased by the Underwriters as the number of Shares set forth opposite
the name of such Underwriter in Schedule I hereto bears to the total number of Shares. The option
to purchase Additional Shares may be exercised at any time within 30 days after the date of the
Prospectus, but no more than once.
3. Terms of Public Offering. The Company has been advised by you that the
Underwriters propose to make a public offering of their respective portions of the Shares as soon
after the Registration Statement and this Agreement have become effective as in your judgment is
advisable and initially to offer the Shares upon the terms set forth in the Prospectus.
Not later than 12:00 p.m. on the second business day following the date the Shares are
released by the Underwriters for sale to the public, the Company shall deliver or cause to be
delivered copies of the Prospectus in such quantities and at such places as the Representative
shall request.
4. Delivery of the Shares and Payment Therefor. Delivery to the Underwriters of the
Firm Shares and payment therefor shall be made at the offices of Xxxxxxx Xxxxx & Associates, Inc.,
000 Xxxxxxxx Xxxxxxx, Xx. Xxxxxxxxxx, Xxxxxxx at 10:00 a.m., St. Petersburg, Florida time, on June
16, 2009, or such other place, time and date not later than 1:30 p.m., St. Petersburg, Florida
time, on June 23, 2009 as the Representative shall designate by notice to the Company (the time and
date of such closing are called the “Closing Date”). The place of closing for the Firm Shares and
the Closing Date may be varied by agreement between the Representative and the Company. The
Company hereby acknowledges that circumstances under which the Representative may provide notice to
postpone the Closing Date as originally scheduled include any determination by the Company or the
Representative to recirculate to the public copies of an amended or supplemented Prospectus or a
delay as contemplated by the provisions of Section 11 hereof.
Delivery to the Underwriters of and payment for any Additional Shares to be purchased by the
Underwriters shall be made at the offices of Xxxxxxx Xxxxx & Associates, Inc., 000 Xxxxxxxx
Xxxxxxx, Xx. Xxxxxxxxxx, Xxxxxxx, at 10:00 a.m., St. Petersburg, Florida time, on such date or
dates (the “Additional Closing Date”) (which may be the same as the Closing Date, but shall in no
event be earlier than the Closing Date nor earlier than three nor later than ten business days
after the giving of the notice hereinafter referred to) as shall be specified in a written notice,
from the Representative on behalf of the Underwriters to the Company, of the Underwriters’
determination to purchase a number, specified in such notice, of Additional Shares. Such notice may
be given at any time within 30 days after the date of the Prospectus and must set forth (i) the
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aggregate number of Additional Shares as to which the Underwriters are exercising the option
and (ii) the names and denominations in which the certificates for which the Additional Shares are
to be registered. The place of closing for the Additional Shares and the Additional Closing Date
may be varied by agreement between you and the Company.
The certificates evidencing the Firm Shares and any Additional Shares to be purchased
hereunder shall be delivered to you on the Closing Date or the Additional Closing Date, as the case
may be, against payment of the purchase price therefore by wire transfer of immediately available
funds to an account specified in writing, not later than the close of business on the business day
next preceding the Closing Date or the Additional Closing Date, as the case may be, by the Company.
Payment for the Shares sold by the Company hereunder shall be delivered by the Representative to
the Company. Delivery of the Shares shall be made through the facilities of The Depositary Trust
Company unless the Underwriter shall otherwise instruct.
It is understood that the Representative has been authorized, for its own account and the
accounts of the several Underwriters, to accept delivery of and receipt for, and make payment of
the purchase price per Share for the Firm Shares and the Additional Shares, if any, that the
Underwriters have agreed to purchase. Xxxxxxx Xxxxx and Associates, Inc., individually and not as
Representative of the Underwriters, may, but shall not be obligated to, make payment for any Shares
to be purchased by any Underwriter whose funds shall not have been received by the Representative
by the Closing Date or the Additional Closing Date, as the case may be, for the account of such
Underwriter, but any such payment shall not relieve such Underwriter from any of its obligations
under this Agreement.
5. Covenants and Agreements of the Company. The Company covenants and agrees with the
several Underwriters as follows:
(a) The Company will use its best efforts to cause the Registration Statement and any
amendments thereto to become effective, if it has not already become effective, and will advise you
promptly and, if requested by you, will confirm such advice in writing (i) when the Registration
Statement has become effective and the time and date of any filing of any post-effective
Registration Statement or any amendment or supplement to any Preliminary Prospectus or the
Prospectus and the time and date that any post-effective amendment to the Registration Statement
becomes effective, (ii) if Rule 430A under the Act is employed, when the Prospectus has been timely
filed pursuant to Rule 424(b) under the Act, (iii) of the receipt of any comments of the
Commission, or any request by the Commission for amendments or supplements to the Registration
Statement, any Preliminary Prospectus or the Prospectus or for additional information, (iv) of the
issuance by the Commission of any stop order suspending the effectiveness of the Registration
Statement or of the suspension of qualification of the Shares for offering or sale in any
jurisdiction or the initiation of any proceeding for such purposes and (v) within the period of
time referred to in Section 5(h) below, of any change in the Company’s condition (financial or
other), business, prospects, properties, net worth or results of operations, or of any event that
comes to the attention of the Company that makes any statement made in the Registration Statement
or the Prospectus (as then amended or supplemented) untrue in any material respect or that requires
the making of any additions thereto or changes therein in order
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to make the statements therein (in the case of the Prospectus, in light of the circumstances
under which they were made) not misleading in any material respect, or of the necessity to amend or
supplement the Prospectus (as then amended or supplemented) to comply with the Act or any other
law. If at any time the Commission shall issue any stop order suspending the effectiveness of the
Registration Statement, the Company will make every reasonable effort to obtain the withdrawal or
lifting of such order at the earliest possible time. The Company will provide the Underwriters with
copies of the form of Prospectus, in such number as the Underwriters may reasonably request, and
file with the Commission such Prospectus in accordance with Rule 424(b) of the Act before the close
of business on the first business day immediately following the date hereof.
(b) The Company will furnish to you, without charge, two signed duplicate originals of the
Registration Statement as originally filed with the Commission and of each amendment thereto,
including financial statements and all exhibits thereto, and will also furnish to you, without
charge, such number of conformed copies of the Registration Statement as originally filed and of
each amendment thereto as you may reasonably request.
(c) The Company will give the Representative notice of its intention to file or prepare any
amendment to the Registration Statement (including any filing under Rule 462(b)) or any amendment,
supplement or revision to either any Preliminary Prospectus (including the Base Prospectus included
in the Registration Statement at the time it became effective) or to the Prospectus, whether
pursuant to the Act, the Exchange Act or otherwise, will furnish the Representative with copies of
any such documents a reasonable amount of time prior to such proposed filing or use, as the case
may be, and will not file or use any such document to which the Representative or counsel for the
Underwriters shall reasonably object.
(d) The Company will not make any offer relating to the Common Stock that would constitute an
Issuer Free Writing Prospectus without your prior consent.
(e) The Company will retain in accordance with the Act all Issuer Free Writing Prospectuses
not required to be filed pursuant to the Act; and if at any time after the date hereof any events
shall have occurred as a result of which any Issuer Free Writing Prospectus, as then amended or
supplemented, would conflict with the information in the Registration Statement, the most recent
Preliminary Prospectus or the Prospectus or would include an 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, or, if for any other reason it shall
be necessary to amend or supplement any Issuer Free Writing Prospectus, to notify you and, upon
your request, to file such document and to prepare and furnish without charge to each Underwriter
as many copies as they may from time to time reasonably request of an amended or supplemented
Issuer Free Writing Prospectus that will correct such conflict, statement or omission; provided,
however, that the Company’s obligations under this Section 5(e) shall not apply to any statements
or omissions in an Issuer Free Writing Prospectus made in reliance on and in conformity with
written information furnished to the Company through the Representative by or on behalf of any
Underwriter specifically for inclusion therein.
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(f) Prior to the execution and delivery of this Agreement, the Company has delivered or will
deliver to you, without charge, in such quantities as you have requested or may hereafter
reasonably request, copies of each form of the Preliminary Prospectus. Consistent with the
provisions of Section 5(h) hereof, the Company consents to the use, in accordance with the
provisions of the Act and with the securities or Blue Sky laws of the jurisdictions in which the
Shares are offered by the several Underwriters and by dealers, prior to the date of the Prospectus,
of each Preliminary Prospectus so furnished by the Company.
(g) During the Prospectus Delivery Period (as hereinafter defined), the Company will file all
documents required to be filed with the Commission pursuant to Sections 13, 14 and 15 of the
Exchange Act in the manner and within the time periods required by the Exchange Act.
(h) As soon after the execution and delivery of this Agreement as is practicable and
thereafter from time to time for such period as in the reasonable opinion of counsel for the
Underwriters a prospectus is required by the Act to be delivered in connection with sales by any
Underwriter or a dealer (the “Prospectus Delivery Period”), and for so long a period as you may
request for the distribution of the Shares, the Company will deliver to each Underwriter and each
dealer, without charge, as many copies of the Prospectus and the Time of Sale Information (and of
any amendment or supplement thereto) as they may reasonably request. The Company consents to the
use of the Prospectus and the Time of Sale Information (and of any amendment or supplement thereto)
in accordance with the provisions of the Act and with the securities or Blue Sky laws of the
jurisdictions in which the Shares are offered by the several Underwriters and by all dealers to
whom Shares may be sold, both in connection with the offering and sale of the Shares and for such
period of time thereafter as the Prospectus is required by the Act to be delivered in connection
with sales by any Underwriter or dealer. If at any time prior to the later of (i) the completion of
the distribution of the Shares pursuant to the offering contemplated by the Registration Statement
or (ii) the expiration of prospectus delivery requirements with respect to the Shares under Section
4(3) of the Act and Rule 174 thereunder, any event shall occur that in the judgment of the Company
or in the opinion of counsel for the Underwriters is required to be set forth in the Prospectus (as
then amended or supplemented) or should be set forth therein in order to make the statements
therein, in the light of the circumstances under which they were made, not misleading, or if it is
necessary to supplement or amend the Prospectus to comply with the Act or any other law, the
Company will forthwith prepare and, subject to Section 5(a) hereof, file with the Commission and
use its best efforts to cause to become effective as promptly as possible an appropriate supplement
or amendment thereto, and will furnish to each Underwriter who has previously requested
Prospectuses, without charge, a reasonable number of copies thereof.
(i) The Company will cooperate with you and counsel for the Underwriters in connection with
the registration or qualification of the Shares for offering and sale by the several Underwriters
and by dealers under the securities or Blue Sky laws of such jurisdictions as you may reasonably
designate and will file such consents to service of process or other documents as may be reasonably
necessary in order to effect and maintain such registration or qualification for so long as
required to complete the distribution of the Shares; provided that in
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no event shall the Company be obligated to qualify to do business in any jurisdiction where it
is not now so qualified or to take any action that would subject it to general service of process
in suits in any jurisdiction where it is not now so subject. In the event that the qualification of
the Shares in any jurisdiction is suspended, the Company shall so advise you promptly in writing.
(j) The Company will make generally available to its security holders a consolidated earnings
statement (in form complying with the provisions of Rule 158), which need not be audited, covering
a twelve-month period commencing after the effective date of the Registration Statement and the
Rule 462 Registration Statement, if any, and ending not later than 15 months thereafter, as soon as
practicable after the end of such period, which consolidated earnings statement shall satisfy the
provisions of Section 11(a) of the Act.
(k) If this Agreement shall terminate or shall be terminated after execution pursuant to any
provision hereof (except pursuant to a termination under Section 12 hereof) or if this Agreement
shall be terminated by the Underwriters because of any inability, failure or refusal on the part of
the Company to perform in all material respects any agreement herein or to comply in all material
respects with any of the terms or provisions hereof or to fulfill in all material respects any of
the conditions of this Agreement, the Company agrees to reimburse you and the other Underwriters
for all out-of-pocket expenses (including travel expenses and reasonable fees and expenses of
counsel for the Underwriters, but excluding wages and salaries paid by you) reasonably incurred by
you in connection herewith.
(l) The Company will apply the net proceeds from the sale of the Shares to be sold by it
hereunder in accordance in all material respects with the statements under the caption “Use of
Proceeds” in the Prospectus.
(m) For a period commencing on the date hereof and ending on the 90th day after the date of
the Prospectus (the “Lock-Up Period”), not to, directly or indirectly, (1) offer for sale, sell,
pledge or otherwise dispose of (or enter into any transaction or device that is designed to, or
reasonably could be expected to, result in the disposition by any person within the Lock-Up Period)
any shares of Common Stock or securities convertible into or exchangeable for Common Stock or sell
or grant options, rights or warrants with respect to any shares of Common Stock or securities
convertible into or exchangeable for Common Stock, (2) enter into any swap or other derivatives
transaction that transfers to another, in whole or in part, any of the economic benefits or risks
of ownership of such shares of Common Stock, whether any such transaction described in clause (1)
or (2) above is to be settled by delivery of Common Stock or other securities, in cash or
otherwise, (3) file or cause to be filed a registration statement, including any amendments, with
respect to the registration of any shares of Common Stock or securities convertible, exercisable or
exchangeable into Common Stock or any other securities of the Company or (4) publicly disclose the
intention to do any of the foregoing, in each case without the prior written consent of the
Representatives on behalf of the Underwriters. The restrictions contained in the preceding
sentence shall not apply to (A) the Shares to be sold hereunder, (B) the issuance of shares of
Common Stock or options to purchase Common Stock pursuant to employee benefit plans in effect on
the date of this Agreement, or (C) the conversion or exchange of convertible or exchangeable
securities outstanding as of the date of this Agreement,
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or (D) the establishment of a trading plan pursuant to Rule 10b5-1 under the Exchange Act, for
the transfer of shares of Common Stock, provided that such plan does not provide for the transfer
of Common Stock during the Lock-Up Period. Notwithstanding the foregoing, if (1) during the last
17 days of the Lock-Up Period, the Company issues an earnings release or announces material news or
a material event relating to the Company occurs or (2) prior to the expiration of the Lock-Up
Period, the Company announces that it will release earnings results during the 16-day period
beginning on the last day of the Lock-Up Period, then the restrictions imposed in the preceding
paragraph shall continue to apply until the expiration of the 18-day period beginning on the date
of issuance of the earnings release or the announcement of the material news or the occurrence of
the material event, unless the Representatives, on behalf of the Underwriters, waive such extension
in writing. The Company will cause each officer, director and stockholder of the Company set forth
on Schedule IV hereto to furnish to the Representatives, prior to the Closing Date, a letter or
letters, substantially in the form of Exhibit A hereto (the “Lock-Up Agreements”).
(n) Prior to the Closing Date or the Additional Closing Date, as the case may be, the Company
will furnish to you, as promptly as possible, copies of any unaudited interim quarterly
consolidated financial statements of the Company and its subsidiaries for any period subsequent to
the periods covered by the financial statements appearing in the Prospectus.
(o) The Company will comply with all provisions of any undertakings contained in the
Registration Statement.
(p) The Company will not at any time, directly or indirectly, take any action designed, or
which might reasonably be expected to cause or result in, or which will constitute, stabilization
or manipulation of the price of the shares of Common Stock to facilitate the sale or resale of any
of the Shares.
(q) The Company will use its reasonable best efforts to list for quotation the Shares on the
Nasdaq Global Select Market (“Nasdaq”).
(r) The Company shall engage and maintain, at its expense, a transfer agent and, if necessary
under the jurisdiction of its incorporation or the rules of any national securities exchange on
which the Common Stock is listed, a registrar (which, if permitted by applicable laws and rules may
be the same entity as the transfer agent) for the Common Stock.
6. Representations and Warranties of the Company. The Company hereby represents and
warrants to each Underwriter on the date hereof, and shall be deemed to represent and warrant to
each Underwriter on the Closing Date and the Additional Closing Date, as the case may be, that:
(a) The Company satisfies all of the requirements of the Act for use of Form S-3 for the
offering of Shares contemplated hereby. The Company was not at the time of initial filing of the
Registration Statement and at the earliest time thereafter that the Company or another offering
participant made a bona fide offer (within the meaning of Rule 164(h)(2) of the
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Act) of the Common Stock and is not on the date hereof an “ineligible issuer” (as defined in
Rule 405).
(b) The Registration Statement conformed, and any amendment to the Registration Statement
filed after the date hereof will conform in all material respects when filed, to the requirements
of the Act. The most recent Preliminary Prospectus conformed, and the Prospectus will conform, in
all material respects when filed with the Commission pursuant to Rule 424(b).
(c) The Registration Statement does 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; provided, that no representation or warranty is made as to information contained in
or omitted from the Registration Statement in reliance upon and in conformity with written
information furnished to the Company through the Representatives by or on behalf of any Underwriter
specifically for inclusion therein.
(d) The Incorporated Documents heretofore filed, when they were filed (or, if any amendment
with respect to any such document was filed, when such amendment was filed), conformed in all
material respects with the requirements of the Exchange Act and the rules and regulations
thereunder, and any further Incorporated Documents so filed will, when they are filed, conform in
all material respects with the requirements of the Exchange Act and the rules and regulations
thereunder; no such Incorporated Document when it was filed (or, if an amendment with respect to
any such document was filed, when such amendment was filed), contained an untrue statement of a
material fact or omitted to state a material fact required to be stated therein or necessary in
order to make the statements therein not misleading; and no such further Incorporated Document,
when it is filed, will contain an untrue statement of a material fact or will omit to state a
material fact required to be stated therein or necessary in order to make the statements therein
not misleading.
(e) The Prospectus, at the time it was issued and at the Closing Date (and if any Additional
Shares are purchased, at the Additional Closing Date) did not contain, 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 to make the statements therein, in the light of the circumstances under which they
were made, not misleading; provided that no representation or warranty is made as to information
contained in or omitted from the Prospectus in reliance upon and in conformity with written
information furnished to the Company through the Representatives by or on behalf of any Underwriter
specifically for inclusion therein.
(f) As of the Applicable Time, the Time of Sale Information did 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, in the light of the circumstances under which they were
made, not misleading; provided that no representation or warranty is made as to information
contained in or omitted from the Time of Sale Information in reliance upon and in conformity with
written information furnished to the Company through the Representatives by or on behalf of any
Underwriter specifically for inclusion therein. For purposes of this Agreement,
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the “Applicable Time” is 8:45 a.m. (New York City time) on the date of this Agreement.
(g) As of the Applicable Time, each Issuer Free Writing Prospectus (including, without
limitation, any road show that is a free writing prospectus under Rule 433), as supplemented and
taken together with the Time of Sale Information, did 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, in the light of the circumstances under which they were made, not misleading;
provided, however, that no representation or warranty is made as to information contained in or
omitted in any Issuer Free Writing Prospectus in reliance upon and in conformity with written
information furnished to the Company through the Representative by or on behalf of any Underwriter
specifically for inclusion therein.
(h) Each Issuer Free Writing Prospectus conformed or will conform in all material respects to
the requirements of the Act on the date of first use, and the Company has complied with all
prospectus delivery and any filing requirements applicable to such Issuer Free Writing Prospectus
pursuant to the Act. The Company has not made any offer relating to the Stock that would
constitute an Issuer Free Writing Prospectus without the prior written consent of the
Representatives. The Company has retained in accordance with the Act all Issuer Free Writing
Prospectuses that were not required to be filed pursuant to the Act. The Company has taken all
actions necessary so that any “road show” (as defined in Rule 433) in connection with the offering
of the Stock will not be required to be filed pursuant to the Act.
(i) The capitalization of the Company is as set forth in the Prospectus in the column entitled
“Actual” under the caption “Capitalization” as of the date set forth therein. All the outstanding
shares of Common Stock of the Company have been, and as of the Closing Date and the Additional
Closing Date, as the case may be, will be, duly authorized and validly issued, are fully paid and
nonassessable and are free of any preemptive or similar rights; except as set forth in the Time of
Sale Information and the Prospectus, the Company is not a party to or bound by any outstanding
options, warrants or similar rights to subscribe for, or contractual obligations to issue, sell,
transfer or acquire, any of its capital stock or any securities convertible into or exchangeable
for any of such capital stock; the Shares to be issued and sold to the Underwriters by the Company
hereunder have been duly authorized and, when issued and delivered to the Underwriters against full
payment therefor in accordance with the terms hereof will be validly issued, fully paid and
nonassessable and free of any preemptive or similar rights; the capital stock of the Company
conforms to the description thereof in the Registration Statement, the Time of Sale Information and
the Prospectus (or any amendment or supplement thereto). The certificates for the Shares being
sold by the Company are in valid and sufficient form.
(j) Each of the Company and its subsidiaries is a corporation duly organized and validly
existing as a corporation in good standing under the laws of the state of its incorporation with
full corporate power and authority to own, lease and operate its properties and to conduct its
business as presently conducted and as described in the Registration Statement, the Time of Sale
Information and the Prospectus (and any amendment or supplement thereto) and is duly registered and
qualified to conduct its business and is in good standing in each jurisdiction or place where the
nature of its properties or the conduct of its business requires such registration or
qualification, except where the failure to so register or qualify has not had or will not have a
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material adverse effect on the condition (financial or other), business, properties, net
worth, results of operations or prospects of the Company and its subsidiaries, taken as a whole (a
“Material Adverse Effect”).
(k) The Company is duly registered as a bank holding company under the Bank Holding Company
Act of 1956, as amended (the “BHC Act”). The Company’s banking subsidiary holds the requisite
authority from the Office of the Comptroller of Currency to do business as a national bank under
the federal National Bank Act. The Company and its banking subsidiary are in compliance in all
material respects with all laws administered by and regulations of the U.S. Department of Treasury,
Board of Governors of the Federal Reserve System, the Federal Deposit Insurance Corporation (the
“FDIC”), the Office of Thrift Supervision, and any other federal or state bank regulatory authority
with jurisdiction over the Company or any of its subsidiaries (which shall include, for the
avoidance of doubt, the U.S. Department of Treasury in respect of the TARP Capital Purchase
Program) (the “Bank Regulatory Authorities”), other than where such failures to comply would not
have a Material Adverse Effect on the Company and its subsidiaries, taken as a whole. 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 resolutions at the request of, any Bank Regulatory Authority which restricts
materially the conduct of its business, or requires any material change in its policies or
practices relating to capital, credit or management, nor have any of them been advised by any Bank
Regulatory Authority that it is contemplating issuing or requesting (or is considering the
appropriateness of issuing or requesting) any such order, decree, agreement, memorandum of
understanding, extraordinary supervisory letter, commitment letter or similar submission, or any
such board resolutions.
(l) The issued shares of capital stock of each of the Company’s subsidiaries have been duly
authorized and validly issued, are fully paid and nonassessable and are owned by the Company or a
subsidiary of the Company free and clear of any security interests, liens, encumbrances, equities
or claims. The Company does not have any subsidiaries and does not own a material interest in or
control, directly or indirectly, any other corporation, partnership, joint venture, association,
trust or other business organization, except as set forth in Exhibit 21 to the Company’s Annual
Report on Form 10-K for its fiscal year ended December 31, 2008. As used in this Agreement,
subsidiaries shall mean direct and indirect subsidiaries of the Company.
(m) There are no legal or governmental proceedings pending or, to the best knowledge of the
Company, threatened, against the Company or its subsidiaries or to which the Company or its
subsidiaries or any of their properties are subject, that are required to be described in the
Registration Statement or the Prospectus (or any amendment or supplement thereto) but are not
described as required. Except as described in the Registration Statement, the Time of Sale
Information and Prospectus, there is no action, suit, inquiry, proceeding or investigation by or
before any court or governmental or other regulatory or administrative agency or commission pending
or, to the best knowledge of the Company, threatened, against or involving the Company or its
subsidiaries, which might individually or in the aggregate prevent
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or adversely affect the transactions contemplated by this Agreement or result in a Material
Adverse Effect, nor to the Company’s knowledge, is there any basis for any such action, suit,
inquiry, proceeding or investigation. There are no agreements, contracts, indentures, leases or
other instruments that are required to be described in the Registration Statement, the Time of Sale
Information or the Prospectus (or any amendment or supplement thereto) or to be filed as an exhibit
to the Registration Statement that are not described, filed or incorporated by reference in the
Registration Statement, the Time of Sale Information and the Prospectus as required by the Act.
(n) Neither the Company nor any of its subsidiaries is (i) in violation of (A) its articles of
incorporation or bylaws, or other organizational documents, (B) any law, ordinance, administrative
or governmental rule or regulation applicable to the Company or any of its subsidiaries, the
violation of which would have a Material Adverse Effect or (C) any decree of any court or
governmental agency or body having jurisdiction over the Company or any of its subsidiaries; or
(ii) in default in any material respect in the performance of any obligation, agreement or
condition contained in (A) any bond, debenture, note or any other evidence of indebtedness or (B)
any agreement, indenture, lease or other instrument (each of (A) and (B), an “Existing Instrument”)
to which the Company or any of its subsidiaries is a party or by which any of their properties may
be bound, which default would have a Material Adverse Effect; and there does not exist any state of
facts that constitutes an event of default on the part of the Company or any of its subsidiaries as
defined in such documents or that, with notice or lapse of time or both, would constitute such an
event of default.
(o) The Company’s execution and delivery of this Agreement and the performance by the Company
of its obligations under this Agreement have been duly and validly authorized by the Company and
this Agreement has been duly executed and delivered by the Company, and constitutes a valid and
legally binding agreement of the Company, enforceable against the Company in accordance with its
terms, except to the extent enforceability may be limited by (i) the application of bankruptcy,
reorganization, insolvency and other laws affecting creditors’ rights generally and (ii) equitable
principles being applied at the discretion of a court before which any proceeding may be brought,
except as rights to indemnity and contribution hereunder may be limited by federal or state
securities laws.
(p) None of the issuance and sale of the Shares by the Company, the execution, delivery or
performance of this Agreement by the Company nor the consummation by the Company of the
transactions contemplated hereby (i) requires any consent, approval, authorization or other order
of or registration or filing with, any court, regulatory body, administrative agency or other
governmental body, agency or official (except such as may be required for the registration of the
Shares under the Act, the listing of the Shares for trading on Nasdaq, the registration of the
Common Stock under the Exchange Act and compliance with the securities or Blue Sky laws of various
jurisdictions, all of which will be, or have been, effected in accordance with this Agreement and
except for the clearance by the Financial Industry Regulatory Authority, Inc. (“FINRA”) of the
underwriting terms of the offering contemplated hereby if required under FINRA’s Rules of Fair
Practice), (ii) conflicts with or will conflict with or constitutes or will constitute a breach of,
or a default under, the Company’s articles of
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incorporation or the Company’s bylaws or any agreement, indenture, lease or other instrument
to which the Company or any of its subsidiaries is a party or by which any of its properties may be
bound, (iii) violates any statute, law, regulation, ruling, filing, judgment, injunction, order or
decree applicable to the Company or any of its subsidiaries or any of their properties, or (iv)
results in a breach of, or default or Debt Repayment Triggering event (as defined below) under, or
results 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, or requires the consent of any other
party to, any Existing Instrument, except for such conflicts, breaches, defaults, liens, charges or
encumbrances that will not, individually or in the aggregate, result in a Material Adverse Effect.
As used herein, a “Debt Repayment Triggering Event” means any event or condition that gives, or
with the giving of notice or lapse of time would give, the holder of any note, debenture or other
evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the
repurchase, redemption or repayment of all or a portion of such indebtedness by the Company or any
of its subsidiaries.
(q) Except as described in the Time of Sale Information and the Prospectus, and except for
options to purchase capital stock issued pursuant to the Company’s stock option or stock incentive
plans in place prior to the date of this Agreement, neither the Company nor any of its subsidiaries
has outstanding and at the Closing Date and the Additional Closing Date, as the case may be, will
have outstanding any options to purchase, or any warrants to subscribe for, or any securities or
obligations convertible into, or any contracts or commitments to issue or sell, any shares of
Common Stock or any such warrants or convertible securities or obligations. No holder of securities
of the Company has rights to the registration of any securities of the Company as a result of or in
connection with the filing of the Registration Statement or the consummation of the transactions
contemplated hereby that have not been satisfied or heretofore waived in writing.
(r) KPMG LLP, the certified public accountants who have certified the financial statements
(including the related notes thereto and supporting schedules) filed as part of the Registration
Statement and the Prospectus (or any amendment or supplement thereto), are independent public
accountants as required by the Act and the Exchange Act.
(s) The deposit accounts of the Company’s banking subsidiary are insured up to the maximum
amount provided by the FDIC and no proceedings for the modification, termination or revocation of
any such insurance are pending or, to the knowledge of the Company, threatened against the Company.
(t) The financial statements, together with related schedules and notes, included in the
Registration Statement, the Time of Sale Information and the Prospectus (and any amendment or
supplement thereto), present fairly the financial condition, results of operations, cash flows and
changes in financial position of the Company on the basis stated therein at the respective dates or
for the respective periods to which they apply; such statements and related schedules and notes
have been prepared in accordance with generally accepted accounting principles consistently applied
throughout the periods involved, except as disclosed therein; and the other financial and
statistical information and data set forth in the Registration Statement and
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Prospectus (and any amendment or supplement thereto) is accurately presented and prepared on a
basis consistent with such financial statements and the books and records of the Company. No other
financial statements or schedules are required to be included in the Registration Statement.
(u) Except as disclosed in the Registration Statement, the Time of Sale Information and the
Prospectus (or any amendment or supplement thereto), (i) neither the Company nor any of its
subsidiaries has incurred any material liabilities or obligations, indirect, direct or contingent,
or entered into any transaction that is not in the ordinary course of business, (ii) neither the
Company nor any of its subsidiaries has sustained any material loss or interference with its
business or properties from fire, flood, windstorm, accident or other calamity, whether or not
covered by insurance, (iii) neither the Company nor any of its subsidiaries has paid or declared
any dividends or other distributions with respect to its capital stock (other than dividends from a
subsidiary to the Company or from a subsidiary to another subsidiary) and the Company is not in
default under the terms of any class of capital stock of the Company or any outstanding debt
obligations, (iv) there has not been any change in the authorized or outstanding capital stock of
the Company or any material change in the indebtedness of the Company (other than in the ordinary
course of business) and (v) there has not been any material adverse change, or any development
involving or that may reasonably be expected to result in a Material Adverse Effect.
(v) All offers and sales of the Company’s capital stock and other debt or other securities
prior to the date hereof were made in compliance with or were the subject of an available exemption
from the Act and all other applicable state and federal laws or regulations, or any actions under
the Act or any state or federal laws or regulations in respect of any such offers or sales are
effectively barred by effective waivers or statutes of limitation.
(w) The Company is in compliance with the requirements of Nasdaq for continued quotation of
the Common Stock thereon. The Company has taken no action designed to, or likely to have the
effect of, terminating the registration of the Common Stock under the Exchange Act or the quotation
of the Common Stock on Nasdaq, nor has the Company received any notification that the Commission or
Nasdaq is contemplating terminating such registration or quotation. The transactions contemplated
by this Agreement will not contravene the rules and regulations of Nasdaq. The Company will comply
in all material respects with all requirements of Nasdaq with respect to the issuance of the
Shares.
(x) Other than excepted activity pursuant to Regulation M under the Exchange Act, the Company
has not taken and will not take, directly or indirectly, any action that constituted, or any action
designed to, or that might reasonably be expected to cause or result in or constitute, under the
Act or otherwise, stabilization or manipulation of the price of any security of the Company to
facilitate the sale or resale of the Shares or for any other purpose.
(y) The Company has complied with all provisions of Section 517.075, Florida Statutes
(Chapter 92-198, Laws of Florida), relating to doing business with the Government of Cuba or with
any person or affiliate located in Cuba.
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(z) The Company and each of its subsidiaries have filed all tax returns required to be filed
(other than certain state or local tax returns, as to which the failure to file, individually or in
the aggregate, would not have a Material Adverse Effect), which returns are complete and correct in
all material respects, and neither the Company nor any subsidiary is in default in the payment of
any taxes that were payable pursuant to said returns or any assessments with respect thereto.
Except as disclosed in the Time of Sale Information and the Prospectus (and any amendment or
supplement thereto), all deficiencies asserted as a result of any federal, state, local or foreign
tax audits have been paid or finally settled and no issue has been raised in any such audit that,
by application of the same or similar principles, reasonably could be expected to result in a
proposed deficiency for any other period not so audited. There are no outstanding agreements or
waivers extending the statutory period of limitation applicable to any federal, state, local or
foreign tax return for any period. On the Closing Date and the Additional Closing Date, as the case
may be, all stock transfer and other taxes that are required to be paid in connection with the sale
of the shares to be sold by the Company to the Underwriters will have been fully paid by the
Company and all laws imposing such taxes will have been complied with.
(aa) Except as set forth in the Time of Sale Information and the Prospectus (or any amendment
or supplement thereto), there are no transactions with “affiliates” (as defined in Rule 405
promulgated under the Act) or any officer, director or security holder of the Company (whether or
not an affiliate) that are required by the Act to be disclosed in the Registration Statement.
Additionally, no relationship, direct or indirect, exists between the Company or any of its
subsidiaries on the one hand, and the directors, officers, stockholders, customers or suppliers of
the Company or any subsidiary on the other hand that is required by the Act to be disclosed in the
Registration Statement, the Time of Sale Information and the Prospectus that is not so disclosed.
(bb) The Company is not an “investment company” or an “affiliated person” of, or “promoter” or
“principal underwriter” for, an investment company within the meaning of the Investment Company Act
of 1940, as amended.
(cc) Each of the Company and its subsidiaries has good and valid title to all property (real
and personal) described in the Time of Sale Information and the Prospectus (and any amendment or
supplement thereto) as being owned by it, free and clear of all liens, claims, security interests
or other encumbrances except (i) such as are described in the Time of Sale Information and the
Prospectus (and any amendment or supplement thereto) or (ii) such as are not materially burdensome
and do not have or will not result in a Material Adverse Effect. All property (real and personal)
held under lease by the Company and its subsidiaries is held by it under valid, subsisting and
enforceable leases with only such exceptions as in the aggregate are not materially burdensome and
do not have or result in a Material Adverse Effect to the use of the property or the conduct of the
business of the Company.
(dd) Each of the Company and its subsidiaries has all permits, licenses, franchises,
approvals, consents and authorizations of governmental or regulatory authorities (hereinafter
“permit” or “permits”) as are necessary to own its properties and to conduct its business in the
manner described in the Time of Sale Information and the Prospectus, subject to
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such qualifications as may be set forth in the Time of Sale Information and the Prospectus
(and any amendment or supplement thereto), except where the failure to have obtained any such
permit has not had and will not have a Material Adverse Effect; each of the Company and its
subsidiaries has operated and is operating its business in material compliance with and not in
material violation of all of its obligations with respect to each such permit and no event has
occurred that allows, or after notice or lapse of time would allow, revocation or termination of
any such permit or result in any other material impairment of the rights of any such permit,
subject in each case to such qualification as may be set forth in the Time of Sale Information and
the Prospectus (and any amendment or supplement thereto); and, except as described in the Time of
Sale Information and the Prospectus (and any amendment or supplement thereto), such permits contain
no restrictions that are materially burdensome to the Company or any of its subsidiaries.
(ee) The Company and its subsidiaries maintain a system of internal accounting controls
sufficient to provide reasonable assurances that (i) transactions are executed in accordance with
management’s general or specific authorizations, (ii) transactions are recorded as necessary to
permit preparation of financial statements in conformity with generally accepted accounting
principles and to maintain accountability for assets, (iii) access to assets is permitted only in
accordance with management’s general or specific authorizations and (iv) the recorded
accountability for assets is compared with existing assets at reasonable intervals and appropriate
action is taken with respect to any differences.
(ff) Neither the Company, nor any subsidiary, nor, to the knowledge of the Company, any
director, officer, agent, employee or other Person acting on behalf of the Company or any
subsidiary has, in the course of its actions for, or on behalf of, the Company (i) used any
corporate funds for any unlawful contribution, gift, entertainment or other unlawful expenses
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 U.S. Foreign Corrupt Practices Act of 1977, as amended; or (iv) made any
unlawful bribe, rebate, payoff, influence payment, kickback or other unlawful payment to any
foreign or domestic government official or employee.
(gg) The operations of the Company and its subsidiaries are and have been conducted at all
times in all material respects and in accordance with the policies and procedures that are
reasonably designed to ensure 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 in which the Company conducts operations, and any 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) 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
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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, knowingly use the proceeds of the offering of the Shares hereunder, or knowingly
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) The Company has procured Lock-Up Agreements, in the form of Exhibit A attached hereto,
from each of the Company’s executive officers and directors.
(jj) No officer, director or nominee for director of the Company has a direct or indirect
affiliation or association with any member of the FINRA.
(kk) The Company and each of its subsidiaries are insured by insurers of recognized financial
responsibility against such losses and risks and in such amounts as are prudent and customary in
the businesses in which it is engaged; and neither the Company nor any of its subsidiaries has
reason to believe that it will not be able to renew its existing insurance coverage as and when
such coverage expires or to obtain similar coverage from similar insurers as may be necessary to
continue its business at a comparable cost.
(ll) The Company and its subsidiaries and any “employee benefit plan” (as defined under the
Employee Retirement Income Security Act of 1974, as amended, and the regulations and published
interpretations thereunder (collectively, “ERISA”)) established or maintained by the Company, its
subsidiaries or their “ERISA Affiliates” (as defined below) are in compliance in all material
respects with ERISA and all other applicable state and federal laws. “ERISA Affiliate” means, with
respect to the Company or a subsidiary, any member of any group or organization described in
Sections 414(b), (c), (m) or (o) of the Code of which the Company or such subsidiary is a member.
No “reportable event” (as defined in ERISA) has occurred or is reasonably expected to occur with
respect to any “employee benefit plan” established or maintained by the Company, its subsidiaries
or any of their ERISA Affiliates. No “employee benefit plan” established or maintained by the
Company, its subsidiaries or any of their ERISA Affiliates, if such “employee benefit plan” were
terminated, would have any “amount of unfunded benefit liabilities” (as defined in ERISA). Neither
the Company, its subsidiaries nor any of their ERISA Affiliates has incurred or reasonably expects
to incur any liability under (i) Title IV of ERISA with respect to termination of, or withdrawal
from, any “employee benefit plan” or (ii) Sections 412, 4971, 4975 or 4980B of the Code. Each
“employee benefit plan” established or maintained by the Company, its subsidiaries or any of their
ERISA Affiliates that is intended to be qualified under Section 401(a) of the Code is so qualified
and nothing has occurred, whether by action or failure to act, that would cause the loss of such
qualification.
7. Expenses. Whether or not the transactions contemplated hereby are consummated or
this Agreement becomes effective or is terminated, the Company agrees to pay or cause to be paid
the following: (i) the fees, disbursements and expenses of the Company’s counsel and accountants in
connection with the registration of the Shares under the Act and all
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other expenses in connection with the preparation, printing and filing of the Registration
Statement and the Prospectus and amendments and supplements thereto and the mailing and delivering
of copies thereof and of any Preliminary Prospectus to the Underwriters and dealers; (ii) the
printing and delivery (including postage, air freight charges and charges for counting and
packaging) of such copies of the Registration Statement, the Prospectus, each Preliminary
Prospectus, the Time of Sale Information, the Blue Sky memoranda, the Master Agreement Among
Underwriters, this Agreement, the Selected Dealers Agreement and all amendments or supplements to
any of them as may be reasonably requested for use in connection with the offering and sale of the
Shares; (iii) consistent with the provisions of Section 5.1(i), all expenses in connection with the
qualification of the Shares for offering and sale under state securities laws or Blue Sky laws,
including reasonable attorneys’ fees and out-of-pocket expenses of the counsel for the Underwriters
in connection therewith; (iv) the filing fees incident to securing any required review by FINRA of
the fairness of the terms of the sale of the Shares and the reasonable fees and disbursements of
the Underwriters’ counsel relating thereto; (v) the fees and expenses associated with listing the
Shares on Nasdaq; (vi) the cost of preparing stock certificates; (vii) the costs and charges of any
transfer agent or registrar; (viii) the cost of the tax stamps, if any, in connection with the
issuance and delivery of the Shares to the respective Underwriters; (ix) all other fees, costs and
expenses referred to in Item 13 of the Registration Statement; and (x) the transportation, lodging,
graphics and other expenses incidental to the Company’s preparation for and participation in the
“roadshow” for the offering contemplated hereby. Except as provided in this Section 7 and in
Section 8 hereof, the Underwriters shall pay their own expenses, including the fees and
disbursements of their counsel. In addition, in the event that the proposed offering is terminated
for the reasons set forth in Section 5.1(k) hereof, the Company agrees to reimburse the
Underwriters as provided in Section 5.1(k).
8. Indemnification and Contribution. Subject to the limitations in this paragraph
below, the Company agrees to indemnify and hold harmless you and each other Underwriter, the
directors, officers, employees, agents and partners of each Underwriter, and each person, if any, who
controls any Underwriter within the meaning of Section 15 of the Act or Section 20 of the Exchange
Act from and against any and all losses, claims, damages, liabilities and expenses, including
reasonable costs of investigation and attorneys’ fees and expenses (collectively, “Damages”)
arising out of or based upon (i) any untrue statement or alleged untrue statement of a material
fact contained in any Preliminary Prospectus, in the Registration Statement, the Time of Sale
Information, any Issuer Free Writing Prospectus or the Prospectus or in any amendment or supplement
thereto, or any omission or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein (in the case of the Prospectus, in light of the
circumstances under which they were made) not misleading, except to the extent that any such
Damages arise out of or are based upon an untrue statement or omission or alleged untrue statement
or omission that has been made therein or omitted therefrom in reliance upon and in conformity with
the information furnished in writing to the Company by or on behalf of any Underwriter through you,
expressly for use in connection therewith or (ii) any inaccuracy in or breach of the
representations and warranties of the Company contained herein or any failure of the Company to
perform its obligations hereunder or under law. This indemnification shall be in addition to any
liability that the Company may otherwise have.
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If any action or claim shall be brought against any Underwriter or any person controlling any
Underwriter in respect of which indemnity may be sought against the Company, such Underwriter or
such controlling person shall promptly notify in writing the party(s) against whom indemnification
is being sought (the “indemnifying party” or “indemnifying parties”), and such indemnifying
party(s) shall assume the defense thereof, including the employment of counsel reasonably
acceptable to such Underwriter or such controlling person and the payment of all reasonable fees of
and expenses incurred by such counsel. Such Underwriter or any such controlling person shall have
the right to employ separate counsel in any such action and participate in the defense thereof, but
the fees and expenses of such counsel shall be at the expense of such Underwriter or such
controlling person, unless (i) the indemnifying party(s) has (have) agreed in writing to pay such
fees and expenses, (ii) the indemnifying party(s) has (have) failed to assume the defense and
employ counsel reasonably acceptable to the Underwriter or such controlling person or (iii) the
named parties to any such action (including any impleaded parties) include both such Underwriter or
such controlling person and the indemnifying party(s), and such Underwriter or such controlling
person shall have been advised by its counsel that one or more legal defenses may be available to
the Underwriter that may not be available to the Company, or that representation of such
indemnified party and any indemnifying party(s) by the same counsel would be inappropriate under
applicable standards of professional conduct (whether or not such representation by the same
counsel has been proposed) due to actual or potential differing interests between them (in which
case the indemnifying party(s) shall not have the right to assume the defense of such action on
behalf of such Underwriter or such controlling person (but the Company shall not be liable for the
fees and expenses of more than one counsel for the Underwriters and such controlling persons)). The
indemnifying party(s) shall not be liable for any settlement of any such action effected without
its (their several) written consent, but if settled with such written consent, or if there be a
final judgment for the plaintiff in any such action, the indemnifying party(s) agree(s) to
indemnify and hold harmless any Underwriter and any such controlling person from and against any
loss, claim, damage, liability or expense by reason of such settlement or judgment, but in the case
of a judgment only to the extent stated in the first and second paragraph of this Section 8.
Each Underwriter agrees, severally and not jointly, to indemnify and hold harmless the
Company, its directors, its officers who sign the Registration Statement and any person who
controls the Company within the meaning of Section 15 of the Act or Section 20 of the Exchange Act,
to the same extent as the foregoing several indemnity from the Company to each Underwriter, but
only with respect to information furnished in writing by or on behalf of such Underwriter through
you expressly for use in the Registration Statement, the Prospectus, the Time of Sale Information,
any Issuer Free Writing Prospectus or any Preliminary Prospectus, or any amendment or supplement
thereto. If any action or claim shall be brought or asserted against the Company, any of its
directors, any of its officers or any such controlling person based on the Registration Statement,
the Prospectus, the Time of Sale Information or any Preliminary Prospectus, or any amendment or
supplement thereto, and in respect of which indemnity may be sought against any Underwriter
pursuant to this paragraph, such Underwriter shall have the rights and duties given to the Company
by the immediately preceding paragraph (except that if the Company shall have assumed the defense
thereof such Underwriter shall not be required to do so, but may employ separate counsel therein
and participate in the defense thereof, but the fees
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and expenses of such counsel shall be at such Underwriter’s expense), and the Company, its
directors, any such officers and any such controlling persons, shall have the rights and duties
given to the Underwriters by the immediately preceding paragraph.
In any event, the Company will not, without the prior written consent of the Representative,
settle or compromise or consent to the entry of any judgment in any proceeding or threatened claim,
action, suit or proceeding in respect of which the indemnification may be sought hereunder (whether
or not the Representative or any person who controls the Representative within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act is a party to such claim, action, suit or
proceeding) unless such settlement, compromise or consent includes an unconditional release of all
Underwriters and such controlling persons from all liability arising out of such claim, action,
suit or proceeding.
If the indemnification provided for in this Section 8 is unavailable or insufficient for any
reason whatsoever to an indemnified party in respect of any Damages referred to herein, then an
indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount
paid or payable by such indemnified party as a result of such Damages (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 and sale of the Shares or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i) above but also the
relative and several fault of the Company on the one hand, and the Underwriters on the other hand,
in connection with the statements or omissions that resulted in such Damages as well as any other
relevant equitable considerations. The relative and several benefits received by the Company on the
one hand, and the Underwriters on the other hand, shall be deemed to be in the same proportion as
the total net proceeds from the offering (before deducting expenses) received by the Company bear
to the total underwriting discounts and commissions received by the Underwriters, in each case as
set forth in the table on the cover page of the Prospectus; provided that, in the event that the
Underwriters shall have purchased any Additional Shares hereunder, any determination of the
relative benefits received by the Company or the Underwriters from the offering of the Shares shall
include the net proceeds (before deducting expenses) received by the Company and the underwriting
discounts and commissions received by the Underwriters, from the sale of such Additional Shares, in
each case computed on the basis of the respective amounts set forth in the notes to the table on
the cover page of the Prospectus. The relative fault of the Company on the one hand, and the
Underwriters on the other hand, shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the omission or alleged omission to
state a material fact relates to information supplied by the Company on the one hand, or by the
Underwriters on the other hand 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 8 was determined by a 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
into account the equitable considerations referred to in the immediately
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preceding paragraph. The amount paid or payable by an indemnified party as a result of the
Damages referred to in the immediately preceding paragraph shall be deemed to include, subject to
the limitations set forth above, any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 8, no Underwriter shall be required to contribute
any amount in excess of the amount of the underwriting commissions received by such Underwriter in
connection with the Shares underwritten by it and distributed to the public. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent misrepresentation. The
Underwriters’ obligations to contribute pursuant to this Section 8 are several in proportion to the
respective numbers of Firm Shares set forth opposite their names in Schedule I hereto (or such
numbers of Firm Shares increased as set forth in Section 10 hereof) and not joint.
The indemnity, contribution and reimbursement agreements contained in this Section 8 and the
representations and warranties of the Company set forth in this Agreement shall remain operative
and in full force and effect, regardless of (i) any investigation made by or on behalf of any
Underwriter or any person controlling any Underwriter, the Company, its directors or officers or
any person controlling the Company, (ii) acceptance of any Shares and payment therefor hereunder
and (iii) any termination of this Agreement. A successor to any Underwriter or any person
controlling any Underwriter, or to the Company, its directors or officers or any person controlling
the Company, shall be entitled to the benefits of the indemnity, contribution and reimbursement
agreements contained in this Section 8.
9. Conditions of Underwriters’ Obligations. The several obligations of the
Underwriters to purchase the Firm Shares hereunder are subject to the following conditions:
(a) The Registration Statement shall have become effective not later than 12:00 noon, New York
City time, on the date hereof, or at such later date and time as shall be consented to in writing
by the Representative, and all filings required by Rules 424(b), 430A and 462 under the Act shall
have been timely made.
(b) You shall be reasonably satisfied that since the respective dates as of which information
is given in the Registration Statement, the Time of Sale Information and Prospectus, (i) except as
set forth in or contemplated by the Registration Statement, the Time of Sale Information or the
Prospectus, there shall not have been any change in the capital stock of the Company or any
material change in the indebtedness (other than in the ordinary course of business) of the Company,
(ii) except as set forth or contemplated by the Registration Statement, the Time of Sale
Information or the Prospectus, no material oral or written agreement or other transaction shall
have been entered into by the Company that is not in the ordinary course of business or that could
reasonably be expected to result in a material reduction in the future earnings of the Company,
(iii) no loss or damage (whether or not insured) to the property of the Company shall have been
sustained that had or could reasonably be expected to have a Material Adverse Effect, (iv) except
as described in the Registration Statement, the Time of Sale Information and Prospectus, there is
no action, suit, inquiry, proceeding or investigation by or
-21-
before any court or governmental or other regulatory or administrative agency or commission
pending or, to the best knowledge of the Company, threatened, against or involving the Company or
its subsidiaries, which might individually or in the aggregate prevent or adversely affect the
transactions contemplated by this Agreement or result in a Material Adverse Effect, nor to the
Company’s knowledge, is there any basis for any such action, suit, inquiry, proceeding or
investigation, and (v) there shall not have been any material change in the condition (financial or
otherwise), business, management, results of operations or prospects of the Company or its
subsidiaries that makes it impractical or inadvisable in your judgment to proceed with the public
offering or purchase of the Shares as contemplated hereby.
(c) You shall have received on the Closing Date (and the Additional Closing Date, if any) an
opinion of Bass, Xxxxx & Xxxx PLC, counsel to the Company, substantially to the effect that:
(i) The Company is a registered bank holding company under the Bank Holding Company Act; has
been duly incorporated and is validly existing as a corporation in good standing under the laws of
the State of Tennessee, with the corporate power and corporate authority to own, lease and operate
its properties and to conduct its business as described in the Registration Statement and the
Prospectus (and any amendment or supplement thereto), and is duly registered or otherwise qualified
to conduct its business as a foreign corporation and is in good standing in each jurisdiction or
place where the nature of its properties or the conduct of its business requires such registration
or qualification, except where the failure to so register or qualify does not have a Material
Adverse Effect.
(ii) Pinnacle National Bank has been duly chartered and is validly existing as a national
bank, in good standing under the laws of the United States of America, with corporate power and
corporate authority to own its properties and conduct its business as described in the Prospectus,
and has been duly qualified as a foreign corporation for the transaction of business and is in good
standing under the laws of each other jurisdiction in which it owns or leases properties or
conducts any business so as to require such qualification, except where the failure to be so
qualified would not have a Material Adverse Effect. Except to the extent that shares of Pinnacle
National Bank’s capital stock are assessable under the banking laws of the United States of
America, all of the issued and outstanding capital stock of Pinnacle National Bank has been duly
authorized and validly issued and is fully paid and nonassessable and is owned directly by the
Company free and clear of any pledge, lien, encumbrance, claim or equity.
(iii) The Company has an authorized capitalization as set forth in the Prospectus under the
column “Actual” under the heading “Capitalization,” and all of the issued shares of capital stock
of the Company have been duly and validly authorized and issued and are fully paid and
nonassessable, and the Shares conform in all material respects to the description of the Common
Stock contained in the Prospectus or in documents incorporated by reference therein.
(iv) Except as described in the Prospectus or in documents
-22-
incorporated by reference therein, (A) there are no outstanding rights (contractual or
otherwise), warrants or options to acquire, or instruments convertible into or exchangeable for, or
agreements or understandings with respect to the sale or issuance of, any shares of capital stock
or other equity interest in the Company; and (B) there are no contracts, agreements or
understandings between the Company and any person granting such person the right to require the
Company to file a registration statement under the Act or otherwise register any securities of the
Company owned or to be owned by such person.
(v) To the knowledge of such counsel, neither the Company nor any of its subsidiaries is in
violation of its articles of incorporation or charter (as applicable) or bylaws or, to such
counsel’s knowledge, in default in the performance or observance of any material obligation,
agreement, covenant or condition contained in any indenture, mortgage, deed of trust, loan
agreement, lease or other agreement or instrument to which it is a party or by which it or any of
its properties may be bound and which has been filed or incorporated by reference as an exhibit to
the Registration Statement or as an exhibit to any document incorporated or deemed to be
incorporated by reference in the Registration Statement.
(vi) The issue and sale of the Shares and the compliance by the Company with all of the
provisions of this Agreement and the consummation of the transactions herein contemplated will not
(A) conflict with or result in a breach or violation of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which the Company is party or by which any of its properties is bound
and which has been filed or incorporated by reference as an exhibit to the Registration Statement
or as an exhibit to any document incorporated by reference in the Registration Statement, (B)
create or result in the creation or imposition of any lien, charge or encumbrance upon any property
or assets of the Company, or (C) result in any violation of the provisions of the charter, as
amended, or bylaws of the Company or any statute or any order, rule or regulation known to such
counsel of any court, governmental agency or authority or self-regulating body, association or
organization, except for such violations that would not have a Material Adverse Effect.
(vii) No consent, approval, authorization, order, registration or qualification of or with any
court, governmental agency or authority or self-regulating body, association or organization is
required for the issue and sale of the Shares or the consummation by the Company of the
transactions contemplated by this Agreement, except such as may be required for the registration of
the Shares under the Act, the listing of the Shares for trading on the Nasdaq, the registration of
the Shares under the Exchange Act and compliance with the securities or Blue Sky laws of various
jurisdictions, as to which such counsel need express no opinion, and except for FINRA’s clearance
of the underwriting terms of the offering contemplated hereby if required under FINRA’s Rules of
Fair Practice, and except for those consents, approvals, authorizations, orders, registrations or
qualifications, the failure of which to obtain will not have a material adverse effect on the
consummation of the transactions contemplated by the Agreement and the fulfillment of the terms
thereof by the Company.
-23-
(viii) The Agreement has been duly authorized, executed and delivered by the Company.
(ix) The Shares to be issued and sold to the Underwriters by the Company hereunder have been
duly authorized and, when issued and delivered to the Underwriters against payment therefor in
accordance with the terms hereof, such Shares will be validly issued, fully paid and nonassessable.
(x) The Registration Statement, including any Rule 462 Registration Statement, the Prospectus,
including any document incorporated by reference therein, and each amendment or supplement to the
Registration Statement and the Prospectus, including any document incorporated by reference
therein, as of their respective effective or issue dates (except for financial statements and
schedules and other financial data included or incorporated by reference or omitted therefrom as to
which no statement need be made) comply, or, in the case of documents incorporated by reference
therein when they were filed with the Commission complied, as to form in all material respects with
the requirements of the Act.
(xi) The statements set forth in, or incorporated by reference into, the Prospectus under the
caption “Description of Capital Stock,” insofar as they purport to constitute a summary of the
terms of, or rights related to, the Shares to the extent that they constitute matters of law,
summaries of legal matters, summaries of the provisions of the Company’s charter or bylaws or legal
conclusions have been reviewed by us and are correct in all material respects.
(xii) The Company is not an “investment company” or an “affiliated person” of, or “promoter”
or “principal investor” for, an “investment company,” as such terms are defined in the Investment
Company Act of 1940, as amended.
(xii) The documents incorporated by reference in the Time of Sale Information and the
Prospectus or any further amendment or supplement thereto made by the Company prior to the Closing
Date or the Additional Closing Date, as the case may be (except for financial statements and
schedules and other financial data included or incorporated by reference or omitted therefrom as to
which no statement need be made), when they were filed with the Commission, complied as to form in
all material respects with the requirements of the Exchange Act.
In rendering such opinion, counsel may rely, to the extent they deem such reliance proper, as
to matters of fact upon certificates of officers of the Company and of government officials.
Copies of all such certificates shall be furnished to you and your counsel on the Closing Date and
the Additional Closing Date, as the case may be.
In addition to the opinion set forth above, such counsel shall also have furnished to the
Underwriter a written statement, addressed to the Underwriter and dated the Closing Date, to the
effect that (x) such counsel has acted as counsel to the Company in connection with the preparation
of the Registration Statement (except for financial statements and schedules and
-24-
other financial data included or incorporated by reference or omitted therefrom as to which no
statement need be made), and (y) although such counsel has not independently verified and is not
passing upon and does not assume responsibility for the accuracy, completeness or fairness of the
statements contained in the Registration Statement, the Time of Sale Information and the
Prospectus, based on the foregoing, no facts have come to the attention of such counsel which lead
them to believe that (I) the Registration Statement (it being understood that we express no belief
or opinion with respect to the financial statements and schedules and other financial data included
or incorporated by reference therein or omitted therefrom), as of the Effective Date, contained any
untrue statement of a material fact or omitted to state a material fact required to be stated
therein or necessary in order to make the statements therein not misleading, (II) the Time of Sale
Information (it being understood that we express no belief or opinion with respect to the financial
statements and schedules and other financial data included or incorporated by reference therein or
omitted therefrom), as of the Applicable Time, contained any untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they were made, not misleading, or
(III) the Prospectus (it being understood that we express no belief or opinion with respect to the
financial statements and schedules and other financial data included or incorporated by reference
therein or omitted therefrom), as of its date and as of the Closing Date, contained or contains any
untrue statement of a material fact or omitted to state a material fact required to be stated
therein or necessary in order to make the statements therein, in light of the circumstances under
which they were made, not misleading.
(d) You shall have received on the Closing Date or Additional Closing Date, as the case may
be, an opinion of Xxxxxxxx & Xxxxxxxx LLP, as counsel for the Underwriters, dated the Closing Date
or Additional Closing Date, as the case may be, with respect to the issuance and sale of the
Shares, the Registration Statement and other related matters as you may reasonably request, and the
Company and its counsel shall have furnished to your counsel such documents as they may reasonably
request for the purpose of enabling them to pass upon such matters.
(e) You shall have received letters addressed to you and dated the date hereof and the Closing
Date or the Additional Closing Date, as the case may be, from (i) the firm of KPMG LLP, independent
certified public accountants and (ii) the Chief Financial Officer of the Company, substantially in
the forms heretofore approved by you.
(f) (i) No stop order suspending the effectiveness of the Registration Statement shall have
been issued by the Commission and no proceedings for that purpose shall be pending or, to the
knowledge of the Company, shall be threatened or contemplated by the Commission at or prior to the
Closing Date or Additional Closing Date, as the case may be; (ii) no order suspending the
effectiveness of the Registration Statement or the qualification or registration of the Shares
under the securities or Blue Sky laws of any jurisdiction shall be in effect and no proceeding for
such purpose shall be pending or, to the knowledge of the Company, threatened or contemplated by
the authorities of any jurisdiction; (iii) any request for additional information on the part of
the staff of the Commission or any such authorities shall have been complied with to the
satisfaction of the staff of the Commission or such authorities;
-25-
(iv) after the date hereof, no amendment or supplement to the Registration Statement or the
Prospectus shall have been filed unless a copy thereof was first submitted to you and you did not
object thereto in good faith; and (v) all of the representations and warranties of the Company
contained in this Agreement shall be true and correct in all material respects (except for such
representations and warranties qualified by materiality, which representations and warranties shall
be true and correct in all respects) on and as of the date hereof and on and as of the Closing Date
or Additional Closing Date, as the case may be, as if made on and as of the Closing Date or
Additional Closing Date, as the case may be, and you shall have received a certificate, dated the
Closing Date and signed by the chief executive officer and the chief financial officer of the
Company (or such other officers as are acceptable to you) to the effect set forth in this Section
9(f) and in Sections 9(b) and 9(g) hereof.
(g) The Company shall not have failed in any material respect at or prior to the Closing Date
or the Additional Closing Date, as the case may be, to have performed or complied with any of its
agreements herein contained and required to be performed or complied with by it hereunder at or
prior to the Closing Date or Additional Closing Date, as the case may be.
(h) The Company shall have furnished or caused to have been furnished to you such further
certificates and documents as you shall have reasonably requested.
(i) At or prior to the Closing Date, you shall have received the written commitment Lock-Up
Agreements substantially in the form of Exhibit A hereto signed by the persons listed on Schedule
IV hereto.
All such opinions, certificates, letters and other documents will be in compliance with the
provisions hereof only if they are reasonably satisfactory in form and substance to you and your
counsel.
The several obligations of the Underwriters to purchase Additional Shares hereunder are
subject to the satisfaction on and as of the Additional Closing Date of the conditions set forth in
this Section 9, except that, if the Additional Closing Date is other than the Closing Date, the
certificates, opinions and letters referred to in this Section 9 shall be dated as of the
Additional Closing Date and the opinions called for by paragraphs (c) and (d) shall be revised to
reflect the sale of Additional Shares.
If any of the conditions hereinabove provided for in this Section 9 shall not have been
satisfied when and as required by this Agreement, this Agreement may be terminated by you by
notifying the Company of such termination in writing or by telegram at or prior to such Closing
Date, but you shall be entitled to waive any of such conditions.
10. Underwriter Free Writing Prospectuses. Each Underwriter hereby represents and
agrees that 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 Act (which term includes use of any
-26-
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 Act) that was not included (including through incorporation by reference) in any
Preliminary Prospectus or a previously filed Issuer Free Writing Prospectus, (ii) any Issuer Free
Writing Prospectus listed on Schedule II (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”).
11. Effective Date of Agreement. This Agreement shall become effective upon the later
of (a) the execution and delivery hereof by the parties hereto and (b) release of notification of
the effectiveness of the Registration Statement by the Commission; provided, however, that the
provisions of Sections 7 and 8 shall at all times be effective.
12. Defaulting Underwriters. If any one or more of the Underwriters shall fail or
refuse to purchase Firm Shares that it or they have agreed to purchase hereunder, and the aggregate
number of Firm Shares that such defaulting Underwriter or Underwriters agreed but failed or refused
to purchase is not more than one-tenth of the aggregate number of the Firm Shares, each
non-defaulting Underwriter shall be obligated, severally, in the proportion in which the number of
Firm Shares set forth opposite its name in Schedule I hereto bears to the aggregate number of Firm
Shares set forth opposite the names of all non-defaulting Underwriters or in such other proportion
as you may specify in the Agreement Among Underwriters, to purchase the Firm Shares that such
defaulting Underwriter or Underwriters agreed, but failed or refused to purchase. If any
Underwriter or Underwriters shall fail or refuse to purchase Firm Shares and the aggregate number
of Firm Shares with respect to which such default occurs is more than one-tenth of the aggregate
number of Firm Shares and arrangements satisfactory to you and the Company for the purchase of such
Firm Shares are not made within 48 hours after such default, this Agreement will terminate without
liability on the part of any non-defaulting Underwriter or the Company. In any such case that does
not result in termination of this Agreement, either you or the Company shall have the right to
postpone the Closing Date, but in no event for longer than seven (7) days, in order that the
required changes, if any, in the Registration Statement and the Prospectus or any other documents
or arrangements may be effected. Any action taken under this paragraph shall not relieve any
defaulting Underwriter from liability in respect of any such default of any such Underwriter under
this Agreement.
13. Termination of Agreement. This Agreement shall be subject to termination in your
absolute discretion, without liability on the part of any Underwriter to the Company by notice to
the Company, if prior to the Closing Date or the Additional Closing Date (if different from the
Closing Date and then only as to the Additional Shares), as the case may be, in your sole judgment,
(i) trading in the Company’s Common Stock shall have been suspended by the Commission or the Nasdaq
Stock Market, (ii) trading in securities generally on the New York Stock Exchange or the Nasdaq
Stock Market shall have been suspended or materially limited, or minimum or maximum prices shall
have been generally established on such exchange, or
-27-
additional material governmental restrictions, not in force on the date of this Agreement,
shall have been imposed upon trading in securities generally by any such exchange or by order of
the Commission or any court or other governmental authority, (iii) a general moratorium on
commercial banking activities shall have been declared by either federal or New York State
authorities; or (iv) there shall have occurred any outbreak or escalation of hostilities or other
international or domestic calamity, crisis or change in political, financial or economic conditions
or other material event the effect of which on the financial markets of the United States is such
as to make it, in your judgment, impracticable or inadvisable to market the Shares or to enforce
contracts for the sale of the Shares. Notice of such cancellation shall be promptly given to the
Company and its counsel by telegraph, telecopy or telephone and shall be subsequently confirmed by
letter.
14. Information Furnished by the Underwriters. The Company acknowledges that the
paragraphs under the caption “Underwriting” in any Preliminary Prospectus, constitute the only
information furnished by or on behalf of the Underwriters through you or on your behalf as such
information is referred to in Sections 5(e), 6(c), 6(e), 6(f), 6(g) and 8 hereof.
15. Miscellaneous. Except as otherwise provided in Sections 5 and 13 hereof, notice
given pursuant to any of the provisions of this Agreement shall be in writing and shall be
delivered
| (i) | to the Company | ||
| Pinnacle Financial Partners, Inc. The Commerce Center 000 Xxxxxxxx Xxxxxx, Xxxxx 000 Xxxxxxxxx, Xxxxxxxxx 00000 Attn: Chief Executive Officer |
|||
| with a copy to | |||
| Xxx X. Xxxxxxxx Bass, Xxxxx & Xxxx PLC 000 Xxxxxxxx Xxxxxx, Xxxxx 0000 Xxxxxxxxx, Xxxxxxxxx 00000-0000 |
|||
| (ii) | to the Underwriters | ||
| Xxxxxxx Xxxxx & Associates, Inc. 000 Xxxxxxxx Xxxxxxx Xx. Xxxxxxxxxx, Xxxxxxx 00000 Attention: Xxxxx Xxxx |
|||
| with a copy to |
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| Xxxx X. Xxxxxx Xxxxxxxx & Xxxxxxxx LLP 1290 Avenue of the Americas Xxx Xxxx, Xxx Xxxx 00000-0000 |
This Agreement has been and is made solely for the benefit of the several Underwriters, the
Company and its directors and officers.
15. Applicable Law; Counterparts. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York without reference to choice of law principles
thereunder.
This Agreement may be signed in various counterparts, which together shall constitute one and
the same instrument.
This Agreement shall be effective when, but only when, at least one counterpart hereof shall
have been executed on behalf of each party hereto.
The Company and the Underwriters each hereby irrevocably waive any right they may have to a
trial by jury in respect to any claim based upon or arising out of this Agreement or the
transactions contemplated hereby.
[The remainder of this page is intentionally left blank.]
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Please confirm that the foregoing correctly sets forth the agreement among the Company and the
several Underwriters.
| Very truly yours, PINNACLE FINANCIAL PARTNERS, INC. |
||||
| By: | /s/ M. Xxxxx Xxxxxx | |||
| Name: | M. Xxxxx Xxxxxx | |||
| Title: | President and Chief Executive Officer | |||
| CONFIRMED as of the date first above mentioned, on behalf of the Representative and the other several Underwriters named in Schedule I hereto. | ||||
| XXXXXXX XXXXX & ASSOCIATES, INC. | ||||
By:
|
/s/ Xxxxx X. Xxxx |
|||
SCHEDULE I
| Number | ||||
| Name of Underwriter | Firm Shares | |||
Xxxxxxx Xxxxx & Associates, Inc. |
5,775,000 | |||
Sandler
X’Xxxxx and Partners, L.P. |
770,000 | |||
Sun Trust
Xxxxxxxx Xxxxxxxx, Inc. |
770,000 | |||
Xxxxxxxxxx
Securities, Inc. |
385,000 | |||
Total: |
7,700,000 | |||
SCHEDULE II
Free Writing Prospectuses
None.
SCHEDULE III
Pricing-Related
Information
Total
number of Firm Shares offered: 7,700,000 shares of Common Stock
Public
offering price: $13.00 per Share
Total
number of Additional Shares the Underwriters may purchase to cover
over-allotments: 1,155,000 shares of Common Stock
Trade
date: June 11, 2009
Settlement
date: June 16, 2009
Nasdaq symbol: PNFP
SCHEDULE
IV
Officers and Directors
Directors
Xxxxxxx Xxxxxx-Xxxxx
Xx X. Xxxxxxx, Xx.
Xxxx X. Xxxxxx
Xxxxx X. Xxxxx, III
M. Xxxxx Xxxxxx
Xxx X. Xxxxxxxx
Xxxxxx Xxxxxx Bone
Xxxxxxx X. Xxxxx
Xxxx X. Xxxxxxx
Xxxx X. Xxxxx
Xxxxx X. Xxxx
Xxxxxxx X. Xxxxxxxxxx, XX
Xxxxxx X. XxXxxx, Xx.
Xxxxx Xxxxx
Xxx X. Xxxxxxxxxx
Xx. Xxxxx X. Xxxxx
Xx X. Xxxxxxx, Xx.
Xxxx X. Xxxxxx
Xxxxx X. Xxxxx, III
M. Xxxxx Xxxxxx
Xxx X. Xxxxxxxx
Xxxxxx Xxxxxx Bone
Xxxxxxx X. Xxxxx
Xxxx X. Xxxxxxx
Xxxx X. Xxxxx
Xxxxx X. Xxxx
Xxxxxxx X. Xxxxxxxxxx, XX
Xxxxxx X. XxXxxx, Xx.
Xxxxx Xxxxx
Xxx X. Xxxxxxxxxx
Xx. Xxxxx X. Xxxxx
Executive Officers
M. Xxxxx Xxxxxx
Xxxxxx X. XxXxxx, Xx.
Xxxx X. Xxxxxxx
Xxxxxx X. Xxxxxxxxx, Xx.
Xxxxxxx X. XxXxxxx
Xxxxxx X. XxXxxx, Xx.
Xxxx X. Xxxxxxx
Xxxxxx X. Xxxxxxxxx, Xx.
Xxxxxxx X. XxXxxxx
