Exhibit 1.1
EXECUTION COPY
First Horizon National Corporation
60,000,000 Shares
Common Stock
($0.625 par value per Share)
Underwriting Agreement
April 28, 2008
Underwriting Agreement
April 28, 2008
Goldman, Sachs & Co.
UBS Securities LLC
FTN Midwest Securities Corp.
Underwriters
C/o Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
C/o UBS Securities LLC
299 Park Avenue
New York, New York 10171-0026
Ladies and Gentlemen:
First Horizon National Corporation, a Tennessee corporation (the
Company
), proposes
to issue and sell to the underwriters named in
Schedule A
annexed hereto (the
Underwriters
) an aggregate of 60,000,000 shares (the
Firm Shares
) of common
stock, $0.625 par value per share (the
Common Stock
), of the Company. In addition, the
Company proposes to grant to the Underwriters the option to purchase from the Company up to an
additional 9,000,000 shares of Common Stock (the
Additional Shares
). The Firm Shares and
the Additional Shares are hereinafter collectively sometimes referred to as the
Shares
.
The Shares are described in the Prospectus which is referred to below.
The Company has prepared and filed, in accordance with the provisions of the Securities Act of
1933, as amended, and the rules and regulations thereunder (collectively, the
Act
), with
the Securities and Exchange Commission (the
Commission
) a registration statement on Form
S-3 (File No. 333-150448) under the Act (the
registration statement
), including a
prospectus, which registration statement incorporates by reference documents which the Company has
filed, or will file, in accordance with the provisions of the Securities Exchange Act of 1934, as
amended, and the rules and regulations thereunder (collectively, the
Exchange Act
). Such
registration statement has become effective under the Act.
Except where the context otherwise requires,
Registration Statement
, as used herein,
means the registration statement, as amended at the time of such registration statements
effectiveness for purposes of Section 11 of the Act (the
Effective Time
), including (i)
all documents filed as a part thereof or incorporated or deemed to be incorporated by reference
therein and (ii) any information contained or incorporated by reference in a prospectus filed with
the Commission pursuant to Rule 424(b) under the Act, to the extent such information is deemed,
pursuant to Rule 430B or Rule 430C under the Act, to be part of the registration statement at the
Effective Time.
The Company has furnished to you, for use by the Underwriters and by dealers in connection
with the offering of the Shares, copies of one or more preliminary prospectus supplements, and the
documents incorporated by reference therein, relating to the Shares. Except where the context
otherwise requires,
Pre-Pricing Prospectus
, as used herein, means each such preliminary
prospectus supplement, in the form so furnished, including any basic prospectus (whether or not in
preliminary form) furnished to you by the Company and attached to or used with such preliminary
prospectus supplement. Except where the context otherwise requires,
Basic Prospectus
, as
used herein, means any such basic prospectus and any basic prospectus furnished to you by the
Company and attached to or used with the Prospectus Supplement (as defined below).
Except where the context otherwise requires,
Prospectus Supplement
, as used herein,
means the final prospectus supplement, relating to the Shares, filed by the Company with the
Commission pursuant to Rule 424(b) under the Act on or before the second business day after the
date hereof (or such earlier time as may be required under the Act), in the form furnished by the
Company to you for use by the Underwriters and by dealers in connection with the offering of the
Shares.
Except where the context otherwise requires,
Prospectus
, as used herein, means the
Prospectus Supplement together with the Basic Prospectus attached to or used with the Prospectus
Supplement.
Permitted Free Writing Prospectuses
, as used herein, means the documents listed on
Schedule B
attached hereto and each road show (as defined in Rule 433 under the Act), if
any, related to the offering of the Shares contemplated hereby that is a written communication
(as defined in Rule 405 under the Act). Each Underwriter represents, warrants, and agrees that it
has not and will not use, authorize use of, refer to, or participate in the planning for use of any
written communication that constitutes an offer to sell or the solicitation of an offer to buy the
Shares, other than (A) a Permitted Free Writing Prospectus, (B) such communications which do not
conflict with the Registration Statement, the Basic Prospectus, each Pre-Pricing Prospectus or the
Prospectus or which would constitute an underwriter free writing prospectus (as defined in Rule
405 of the Act) that is not required to be filed by the Underwriters with the Commission pursuant
to Rule 433 under the Act, (C) any written communication listed on Schedule B, or (D) any written
communication prepared by such Underwriter and approved in writing by the Company in advance.
Covered Free Writing Prospectuses
, as used herein, means (i) each issuer free
writing prospectus (as defined in Rule 433(h)(1) under the Act), if any, relating to the Shares,
which is not a Permitted Free Writing Prospectus and (ii) each Permitted Free Writing Prospectus.
Pricing Information
, means (i) the number of Shares offered for sale pursuant to the
Prospectus and (ii) the initial public offering price per Share, in the case of each of clause (i)
and clause (ii), as reflected on the cover page of the Prospectus Supplement.
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Any reference herein to the registration statement, the Registration Statement, any Basic
Prospectus, any Pre-Pricing Prospectus, the Prospectus Supplement, the Prospectus or any Permitted
Free Writing Prospectus shall be deemed to refer to and include the documents, if any, incorporated
by reference, or deemed to be incorporated by reference, therein (the
Incorporated
Documents
), including, unless the context otherwise requires, the documents, if any, filed as
exhibits to such Incorporated Documents. Any reference herein to the terms
amend
,
amendment
or
supplement
with respect to the Registration Statement, any Basic
Prospectus, any Pre-Pricing Prospectus, the Prospectus Supplement, the Prospectus or any Permitted
Free Writing Prospectus shall be deemed to refer to and include the filing of any document under
the Exchange Act on or after the initial effective date of the Registration Statement, or the date
of such Basic Prospectus, such Pre-Pricing Prospectus, the Prospectus Supplement, the Prospectus or
such Permitted Free Writing Prospectus, as the case may be, and deemed to be incorporated therein
by reference.
As used in this Agreement,
business day
shall mean a day on which the New York Stock
Exchange (the
NYSE
) is open for trading. The terms herein, hereof, hereto,
hereinafter and similar terms, as used in this Agreement, shall in each case refer to this
Agreement as a whole and not to any particular section, paragraph, sentence or other subdivision of
this Agreement. The term or, as used herein, is not exclusive.
The Company and the Underwriters agree as follows:
1.
Sale and Purchase
. Upon the basis of the representations and warranties and
subject to the terms and conditions herein set forth, the Company agrees to issue and sell to the
respective Underwriters and each of the Underwriters, severally and not jointly, agrees to purchase
from the Company the number of Firm Shares set forth opposite the name of such Underwriter in
Schedule A
attached hereto, subject to adjustment in accordance with Section 8 hereof, in
each case at a purchase price of $9.575 per Share. The Company is advised by you that the
Underwriters intend (i) to make a public offering of their respective portions of the Firm Shares
as soon after the effectiveness of this Agreement as in your judgment is advisable and (ii)
initially to offer the Firm Shares upon the terms set forth in the Prospectus. You may from time
to time increase or decrease the public offering price after the initial public offering to such
extent as you may determine. Upon the authorization by the Company of the release of the Firm
Shares, the several Underwriters agree to offer the Firm Shares for sale in accordance with the
terms and conditions set forth in the Prospectus.
In addition, the Company hereby grants to the several Underwriters the option to purchase
Additional Shares (the
Option
), and upon the basis of the representations and warranties
and subject to the terms and conditions herein set forth, the Underwriters shall have the right to
purchase, severally and not jointly, from the Company, ratably in accordance with the number of
Firm Shares to be purchased by each of them, all or a portion of the Additional Shares, at the same
purchase price per share to be paid by the Underwriters to the Company for the Firm Shares. The
Option may be exercised by UBS Securities LLC (
UBS
) on behalf of the several Underwriters
at any time and from time to time on or before the thirtieth day following the date of the
Prospectus Supplement, by written notice to the Company. Such notice shall set
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forth the aggregate number of Additional Shares as to which the Option is being exercised and the
date and time when the Additional Shares are to be delivered (any such date and time being herein
referred to as an
additional time of purchase
);
provided
,
however
, that
no additional time of purchase shall be earlier than the time of purchase (as defined below) nor
earlier than the second business day after the date on which the Option shall have been exercised
nor later than the fifth business day after the date on which the Option shall have been exercised.
The number of Additional Shares to be sold to each Underwriter shall be the number which bears the
same proportion to the aggregate number of Additional Shares being purchased as the number of Firm
Shares set forth opposite the name of such Underwriter on
Schedule A
hereto bears to the
total number of Firm Shares (subject, in each case, to such adjustment as Goldman, Sachs & Co.
(
Goldman, Sachs
) and UBS may determine to eliminate fractional shares), subject to
adjustment in accordance with Section 8 hereof.
2.
Payment and Delivery
. Payment of the purchase price for the Firm Shares shall be
made to the Company by Federal Funds wire transfer against delivery of the certificates for the
Firm Shares to you through the facilities of The Depository Trust Company (
DTC
) for the
respective accounts of the Underwriters. Such payment and delivery shall be made at 10:00 A.M.,
New York City time, on May 2, 2008 (unless another time shall be agreed to by you and the Company
or unless postponed in accordance with the provisions of Section 8 hereof). The time at which such
payment and delivery are to be made is hereinafter sometimes called the
time of purchase
.
Electronic transfer of the Firm Shares shall be made to you at the time of purchase through DTC in
such names and in such denominations as you shall specify.
Payment of the purchase price for the Additional Shares shall be made at the additional time
of purchase in the same manner and at the same office and time of day as the payment for the Firm
Shares. Electronic transfer of the Additional Shares shall be made to you at the additional time
of purchase in such names and in such denominations as you shall specify.
Deliveries of the documents described in Section 6 hereof with respect to the purchase of the
Shares shall be made at the offices of Sullivan & Cromwell LLP at 125 Broad Street, New York, NY
10004, at 9:00 A.M., New York City time, on the date of the closing of the purchase of the Firm
Shares or the Additional Shares, as the case may be.
3.
Representations and Warranties of the Company
. The Company represents and warrants
to and agrees with each of the Underwriters that:
(a) the Registration Statement has heretofore become effective under the Act; no stop
order of the Commission preventing or suspending the use of any Basic Prospectus, any
Pre-Pricing Prospectus, the Prospectus Supplement, the Prospectus or any Permitted Free
Writing Prospectus, or the effectiveness of the Registration Statement, has been issued, and
no proceedings for such purpose have been instituted or, to the Companys knowledge, are
contemplated by the Commission;
(b) the Registration Statement complied when it became effective, complies as of the
date hereof and, as amended or supplemented, at the time of purchase and each
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additional time of purchase, if any, in all material respects, with the requirements of
the Act; the conditions to the use of Form S-3 in connection with the offering and sale of
the Shares as contemplated hereby have been satisfied; the Registration Statement
constitutes an automatic shelf registration statement (as defined in Rule 405 under the
Act); the Company has not received, from the Commission, a notice, pursuant to Rule
401(g)(2), of objection to the use of the automatic shelf registration statement form; as of
the determination date applicable to the Registration Statement (and any amendment thereto),
the Company was a well-known seasoned issuer as defined in Rule 405 under the Act; the
Registration Statement meets, and the offering and sale of the Shares as contemplated hereby
complies with, the requirements of Rule 415 under the Act (including, without limitation,
Rule 415(a)(5) under the Act); the Registration Statement did not, as of the Effective Time,
contain an untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not misleading; each
Pre-Pricing Prospectus complied, as of its date and at the time it was filed with the
Commission, and complies as of the date hereof in all material respects with the
requirements of the Act; as of the date such Pre-Pricing Prospectus was filed with the
Commission, as of the date of the Pre-Pricing Prospectus and at the time of purchase, the
Pre-Pricing Prospectus, as then amended or supplemented, did not and will not include an
untrue statement of a material fact or omit to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under which they were made,
not misleading, and at 7:00 P.M., New York City time, on April 28, 2008 (the Applicable
Time), the Pre-Pricing Prospectus, as then amended or supplemented, together with the
Pricing Information did not include an untrue statement of a material fact or omit to state
a material fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; each Basic Prospectus complied or
will comply, as of its date and the date it was or will be filed with the Commission, in all
material respects, with the requirements of the Act; as of the date of the Basic Prospectus,
the date the Basic Prospectus was filed with the Commission and at the time of purchase the
Basic Prospectus, as then amended or supplemented (including with the Prospectus
Supplement), did not and will not include an untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, and at the Applicable Time, the
Basic Prospectus, as then amended or supplemented (including with the Pre-Pricing
Prospectus), together with the Pricing Information, did not include an untrue statement of a
material fact or omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not misleading; each
of the Prospectus Supplement and the Prospectus will comply, as of the date that it is filed
with the Commission, the date of the Prospectus Supplement, and, as amended or supplemented,
at the time of purchase and each additional time of purchase, if any, in all material
respects, with the requirements of the Act (in the case of the Prospectus, including,
without limitation, Section 10(a) of the Act); at the date of the Prospectus Supplement, the
date the Prospectus Supplement is filed with the Commission, at the time of purchase, and at
the latest additional time of purchase, if any, the Prospectus Supplement or the Prospectus,
as then amended or supplemented, did not include an untrue statement of a
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material fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were made, not
misleading; each Permitted Free Writing Prospectus, as supplemented by and taken together
with the Pre-Pricing Prospectus and the Pricing Information as of the Applicable Time, did
not include an untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the circumstances under
which they were made, not misleading;
provided
,
however
, that the Company
makes no representation or warranty in this Section 3(b) with respect to any statement
contained in the Registration Statement, any Pre-Pricing Prospectus, the Prospectus or any
Permitted Free Writing Prospectus in reliance upon and in conformity with information
concerning an Underwriter and furnished in writing by or on behalf of such Underwriter
through you to the Company expressly for use in the Registration Statement, such Pre-Pricing
Prospectus, the Prospectus or such Permitted Free Writing Prospectus; each Incorporated
Document, at the time such document was filed, or will be filed, with the Commission or at
the time such document became or becomes effective, as applicable, complied or will comply,
in all material respects, with the requirements of the Exchange Act and did not or will not,
as applicable, include an untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in the light of the circumstances
under which they were made, not misleading; and each Covered Free Writing Prospectus does
not conflict with the information contained in the Registration Statement, the Pre-Pricing
Prospectus or the Prospectus;
(c) prior to the execution of this Agreement, the Company has not, directly or
indirectly, offered or sold any Shares by means of any prospectus (within the meaning of
the Act) or used any prospectus (within the meaning of the Act) in connection with the
offer or sale of the Shares, in each case other than the Pre-Pricing Prospectuses and the
Permitted Free Writing Prospectuses, if any; the Company has not, directly or indirectly,
prepared, used or referred to any Permitted Free Writing Prospectus except in compliance
with Rule 163 or with Rules 164 and 433 under the Act; assuming that such Permitted Free
Writing Prospectus is so sent or given after the Registration Statement was filed with the
Commission (and after such Permitted Free Writing Prospectus was, if required pursuant to
Rule 433(d) under the Act, filed with the Commission), the sending or giving, by any
Underwriter, of any Permitted Free Writing Prospectus will satisfy the provisions of Rule
164 and Rule 433; the conditions set forth in one or more of subclauses (i) through (iv),
inclusive, of Rule 433(b)(1) under the Act are satisfied, and the registration statement
relating to the offering of the Shares contemplated hereby, as initially filed with the
Commission, includes a prospectus that, other than by reason of Rule 433 or Rule 431 under
the Act, satisfies the requirements of Section 10 of the Act; the Company is not
disqualified, by reason of subsection (f) or (g) of Rule 164 under the Act, from using, in
connection with the offer and sale of the Shares, free writing prospectuses (as defined in
Rule 405 under the Act) pursuant to Rules 164 and 433 under the Act; the Company is not an
ineligible issuer (as defined in Rule 405 under the Act) as of the eligibility
determination date for purposes of Rules 164 and 433 under the Act with respect to the
offering of the Shares contemplated by the Registration Statement, without taking into
account any determination by the Commission pursuant to
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Rule 405 under the Act that it is not necessary under the circumstances that the
Company be considered an ineligible issuer; the parties hereto agree and understand that
the content of any and all road shows (as defined in Rule 433 under the Act) related to
the offering of the Shares contemplated hereby is solely the property of the Company;
(d) the Company has an authorized and outstanding capitalization as set forth in the
Pre-Pricing Prospectuses and the Prospectus; all of the issued and outstanding shares of
capital stock, including the Common Stock, of the Company have been duly authorized and
validly issued and are fully paid and non-assessable, have been issued in compliance with
all applicable securities laws and were not issued in violation of any preemptive right,
resale right, right of first refusal or similar right; the Shares are authorized for
trading, subject to official notice of issuance, on the NYSE; the capital stock of the
Company, including the Shares, conforms in all material respects to each description
thereof, if any, contained or incorporated by reference in the Registration Statement, the
Pre-Pricing Prospectuses, the Prospectus and the Permitted Free Writing Prospectuses, if
any; and the certificates for the Shares are in due and proper form;
(e) the Company has been duly incorporated and is validly existing as a corporation in
good standing under the laws of the State of Tennessee, with full corporate power and
authority to own, lease and operate its properties and conduct its business as described in
the Registration Statement, the Pre-Pricing Prospectuses, the Prospectus and the Permitted
Free Writing Prospectuses, if any, to execute and deliver this Agreement and to issue, sell
and deliver the Shares as contemplated herein; and the Company is duly qualified to do
business as a foreign corporation and is in good standing in each jurisdiction where the
ownership or leasing of its properties or the conduct of its business requires such
qualification, except where the failure to be so qualified and in good standing would not,
individually or in the aggregate, have a material adverse effect on the business,
properties, financial condition, results of operations or prospects of the Company and its
subsidiaries taken as a whole (a
Material Adverse Effect
);
(f) The Company is a bank holding company registered under the Bank Holding Company Act
of 1956, as amended (the
BHC
); and each of the Company and the Bank (defined
below) are in substantial compliance with, and conduct their respective businesses in
substantial conformity with, all applicable laws and governmental regulations governing bank
holding companies, banks and subsidiaries of bank holding companies, respectively, except
failures to comply or be in conformity with such laws and regulations that could not
reasonably be expected to result in a Material Adverse Effect;
(g) First Tennessee Bank National Association (the
Bank
) has been duly
organized and is validly existing as a national banking association under the laws of the
United States; the Bank is an insured bank under the applicable provisions of the Federal
Deposit Act, as amended, and no proceeding for the termination or revocation of such
insurance is pending or, to the knowledge of the Company, threatened against the Bank; the
Bank has no subsidiaries that are depositary institutions with deposits insured under
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the provisions of the Federal Deposit Insurance Act, as amended; the Company owns
directly or indirectly all of the outstanding capital stock of each Significant Subsidiary
(as defined in Rule 1-02(w) of Regulation S-X under the Act, all such Significant
Subsidiaries being set forth on Schedule C hereto) subject to no security interest, other
encumbrance or adverse claims; other than the capital stock of the subsidiaries, the Company
does not own, directly or indirectly, more than 5% of the voting stock of any corporation,
firm, partnership, joint venture, association or other entity, other than investments made
by the Company in the ordinary course of business that aggregate less than 1% of the
Companys total assets at May 31, 2007; each Significant Subsidiary has been duly
constituted and is validly existing as a corporation, limited liability company, national
banking association or banking trust, as applicable, in good standing under the laws of the
jurisdiction of its incorporation or formation, as applicable, with full corporate power and
authority to own, lease and operate its properties and to conduct its business as described
in the Registration Statement, the Pre-Pricing Prospectuses, the Prospectus and the
Permitted Free Writing Prospectuses, if any; each Significant Subsidiary is duly qualified
to do business as a foreign corporation, limited liability company or business trust, as
applicable, and is in good standing in each jurisdiction where the ownership or leasing of
its properties or the conduct of its business requires such qualification, except where the
failure to be so qualified and in good standing would not, individually or in the aggregate,
have a Material Adverse Effect;
(h) the Shares have been duly and validly authorized and, when issued and delivered
against payment therefor as provided herein, will be duly and validly issued, fully paid and
non-assessable and free of statutory and contractual preemptive rights, resale rights,
rights of first refusal and similar rights; the Shares, when issued and delivered to the
Underwriters against payment therefor as provided herein, will be free of any restriction
upon the voting or transfer thereof pursuant to the Tennessee Business Corporation Act or
the Companys charter or bylaws or any agreement or other instrument to which the Company is
a party;
(i) this Agreement has been duly authorized, executed and delivered by the Company;
(j) neither the Company nor any of its Significant Subsidiaries is in breach or
violation of or in default under (nor has any event occurred which, with notice, lapse of
time or both, would result in any breach or violation of, constitute a default under or give
the holder of any indebtedness (or a person acting on such holders behalf) the right to
require the repurchase, redemption or repayment of all or a part of such indebtedness under)
(A) its charter or bylaws (or other organizational documents), or (B) any indenture,
mortgage, deed of trust, bank loan or credit agreement or other evidence of indebtedness, or
any license, lease, contract or other agreement or instrument to which it is a party or by
which it or any of its properties may be bound or affected, or (C) any federal, state, local
or foreign law, regulation or rule, or (D) any rule or regulation of any self-regulatory
organization or other non-governmental regulatory authority (including, without limitation,
the rules and regulations of the NYSE), or (E) any decree, judgment
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or order applicable to it or any of its properties, except in the case of (B), (C), (D)
and (E) such breach, violation, default or requirement would not, individually or in the
aggregate, have a Material Adverse Effect;
(k) the execution, delivery and performance of this Agreement, the issuance and sale of
the Shares and the consummation of the transactions contemplated hereby will not conflict
with, result in any breach or violation of or constitute a default under (nor constitute any
event which, with notice, lapse of time or both, would result in any breach or violation of,
constitute a default under or give the holder of any indebtedness (or a person acting on
such holders behalf) the right to require the repurchase, redemption or repayment of all or
a part of such indebtedness under) (or result in the creation or imposition of a lien,
charge or encumbrance on any property or assets of the Company or any subsidiary pursuant to
(A) the charter or bylaws (or other organizational documents) of the Company or any of its
Significant Subsidiaries, or (B) any indenture, mortgage, deed of trust, bank loan or credit
agreement or other evidence of indebtedness, or any license, lease, contract or other
agreement or instrument to which the Company or any of its Significant Subsidiaries is a
party or by which any of them or any of their respective properties may be bound or
affected, or (C) any federal, state, local or foreign law, regulation or rule, or (D) any
rule or regulation of any self-regulatory organization or other non-governmental regulatory
authority (including, without limitation, the rules and regulations of the NYSE), or (E) any
decree, judgment or order applicable to the Company or any of its Significant Subsidiaries
or any of their respective properties, except in the case of (B), (C), (D) and (E) such
breach, violation, default or requirement would not, individually or in the aggregate, have
a Material Adverse Effect;
(l) no approval, authorization, consent or order of or filing with any federal, state,
local or foreign governmental or regulatory commission, board, body, authority or agency, or
of or with any self-regulatory organization or other non-governmental regulatory authority
(including, without limitation, the NYSE), or approval of the shareholders of the Company,
is required in connection with the issuance and sale of the Shares or the consummation by
the Company of the transactions contemplated hereby, other than (i) registration of the
Shares under the Act, which has been effected, (ii) any necessary qualification under the
securities or blue sky laws of the various jurisdictions in which the Shares are being
offered by the Underwriters, (iii) under the Conduct Rules of the Financial Industry
Regulatory Authority, Inc. (
FINRA
) or (iv) listing of the Shares with the NYSE;
(m) except as described in the Registration Statement (excluding the exhibits thereto),
each Pre-Pricing Prospectus and the Prospectus, (i) no person has the right, contractual or
otherwise, to cause the Company to issue or sell to it any shares of Common Stock or shares
of any other capital stock or other equity interests of the Company and (ii) no person has
any preemptive rights, resale rights, rights of first refusal or other rights to purchase
any shares of Common Stock or shares of any other capital stock of or other equity interests
in the Company;
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(n) each of the Company and its Significant Subsidiaries has all necessary licenses,
authorizations, consents and approvals and has made all necessary filings required under any
applicable law, regulation or rule, and has obtained all necessary licenses, authorizations,
consents and approvals from other persons, in order to conduct their respective businesses,
except when the failure to have such license, authorization, consent or approval, or to make
any such filings, or obtain any such license, authorization, consent or approval would not,
individually or in the aggregate, have a Material Adverse Effect; neither the Company nor
any of its Significant Subsidiaries is in violation of, or in default under, or has received
notice of any proceedings relating to revocation or modification of, any such license,
authorization, consent or approval or any federal, state, local or foreign law, regulation
or rule or any decree, order or judgment applicable to the Company or any of its Significant
Subsidiaries, except where such violation, default, revocation or modification would not,
individually or in the aggregate, have a Material Adverse Effect;
(o) there are no legal or governmental proceedings pending or, to the Companys
knowledge, threatened to which the Company or any of its Significant Subsidiaries or any of
their respective directors or officers is or would be a party or of which any of their
respective properties is or would be subject at law or in equity, except as described in the
Registration Statement (excluding the exhibits thereto), each Pre-Pricing Prospectus and the
Prospectus or any such action, suit, claim, investigation or proceeding that is not
reasonably likely, individually or in the aggregate, to have a Material Adverse Effect; the
Company and each of its subsidiaries is in compliance with all laws administered by and
regulations applicable to it of the Board of Governors of the Federal Reserve System, the
Federal Deposit Insurance Corporation and the Office of the Comptroller of the Currency
(each a
Banking Regulator
) and of any other federal or state agency or authority
with jurisdiction over it except where failure to so comply would not result in a Material
Adverse Effect. Neither the Company nor any of its subsidiaries is a party to or otherwise
subject to any consent decree, memorandum of understanding, written commitment or other
supervisory agreement with any Banking Regulator or any other federal or state agency or
authority, nor has the Company or any of its subsidiaries been advised by any Banking
Regulator or any other federal or state agency or authority that it is contemplating issuing
or requesting any of the foregoing except where being a party to or subject to such consent
decree, memorandum of understanding, written commitment or other supervisory agreement would
not result in a Material Adverse Effect;
(p) KPMG LLP, whose report on the consolidated financial statements of the Company and
the subsidiaries included or incorporated by reference in the Registration Statement, the
Pre-Pricing Prospectuses and the Prospectus, are independent registered public accountants
as required by the Act and by the rules of the Public Company Accounting Oversight Board;
(q) the financial statements included or incorporated by reference in the Registration
Statement, the Pre-Pricing Prospectuses, the Prospectus and the Permitted
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Free Writing Prospectuses, if any, together with the related notes and schedules,
present fairly in all material respects the consolidated financial position of the Company
and the subsidiaries as of the dates indicated and the consolidated results of operations,
cash flows and changes in shareholders equity of the Company and the subsidiaries for the
periods specified and have been prepared in compliance in all material respects with the
requirements of the Act and Exchange Act and in conformity in all material respects with
U.S. generally accepted accounting principles applied on a consistent basis during the
periods involved; the other financial and statistical data contained or incorporated by
reference in the Registration Statement, the Pre-Pricing Prospectuses, the Prospectus and
the Permitted Free Writing Prospectuses, if any, are accurately and fairly presented in all
material respects and to the extent appropriate are prepared on a basis consistent with the
financial statements and books and records of the Company; there are no financial statements
(historical or pro forma) that are required to be included or incorporated by reference in
the Registration Statement, any Pre-Pricing Prospectus or the Prospectus that are not
included or incorporated by reference as required; the Company and the subsidiaries do not
have any known material liabilities or obligations, direct or contingent (including any
off-balance sheet obligations), not described and required to be described in the
Registration Statement (excluding the exhibits thereto), each Pre-Pricing Prospectus and the
Prospectus; except as disclosed in the Registration Statement (excluding the exhibits
thereto), each Pre-Pricing Prospectus and the Prospectus, no stock option granted under any
stock option plan of the Company or any subsidiary (each, a
Stock Plan
) involved
any back-dating, forward-dating or similar practice with respect to the effective date
of such grant and, except as would not, individually or in the aggregate, have a Material
Adverse Effect; in all material respects all disclosures contained or incorporated by
reference in the Registration Statement, the Pre-Pricing Prospectuses, the Prospectus and
the Permitted Free Writing Prospectuses, if any, regarding non-GAAP financial measures (as
such term is defined by the rules and regulations of the Commission) comply with Regulation
G of the Exchange Act and Item 10 of Regulation S-K under the Act, to the extent applicable;
(r) subsequent to the respective dates as of which information is given in the
Registration Statement, the Pre-Pricing Prospectuses, the Prospectus and the Permitted Free
Writing Prospectuses, if any, in each case excluding any amendments or supplements to the
foregoing made after the execution of this Agreement, there has not been (i) any material
adverse change, or any development involving a prospective material adverse change, in the
business, properties, management, financial condition or results of operations of the
Company and the subsidiaries taken as a whole, (ii) any transaction, except as set forth in
the Registration Statement (excluding the exhibits thereto), each Pre-Pricing Prospectus and
the Prospectus, which is material to the Company and the subsidiaries taken as a whole,
(iii) any obligation or liability, direct or contingent (including any off-balance sheet
obligations), incurred by the Company or any Significant Subsidiary, which is material to
the Company and the subsidiaries taken as a whole, (iv) any material change in the capital
stock or outstanding indebtedness of the Company or any subsidiaries or (v) any dividend or
distribution of any kind declared, paid or made on the capital stock of the Company;
-11-
(s) the Company has obtained for the benefit of the Underwriters the agreement (a
Lock-Up Agreement
), in the form set forth as
Exhibit A
hereto, of each of
its directors and officers (within the meaning of Rule 16a-1(f) under the Exchange Act);
(t) neither the Company nor any Significant Subsidiary is, or in connection with any
sale of Shares will any of them be, and, after giving effect to the offering and sale of the
Shares and the application of the proceeds thereof, none of them will be, an investment
company or an entity controlled by an investment company, as such terms are defined in
the Investment Company Act of 1940, as amended (the
Investment Company Act
);
(u) the Company and each of its Significant Subsidiaries have good and marketable title
to all property (real and personal) described in the Registration Statement, the Pre-Pricing
Prospectuses, the Prospectus and the Permitted Free Writing Prospectuses, if any, as being
owned by any of them, free and clear of all liens, claims, security interests or other
encumbrances, except to the extent incurred by or in connection with the entering into of
contracts for the sale of assets consistent with the disclosure in the Registration
Statement (excluding the exhibits thereto), each Pre-Pricing Prospectus and the Prospectus,
and except where the failure to have such good and marketable title would not, individually
or in the aggregate, have a Material Adverse Effect; all the property described in the
Registration Statement, the Pre-Pricing Prospectuses, the Prospectus and the Permitted Free
Writing Prospectuses, if any, as being held under lease by the Company or a subsidiary is
held thereby under valid, subsisting and enforceable leases, except where the failure to
hold or lease such property would not, individually or in the aggregate, have a Material
Adverse Effect;
(v) there are no past, present or, to the Companys knowledge, reasonably anticipated
future events, conditions, circumstances, activities, practices, actions, omissions or plans
that could reasonably be expected to give rise to any material costs or liabilities to the
Company or any subsidiary under, or to materially interfere with or prevent compliance by
the Company or any subsidiary with, any laws or regulations relating to protection from
harmful or hazardous substances or to protection of the environment;
(w) the Company and each of the subsidiaries maintain insurance covering their
respective properties, operations, personnel and businesses as the Company reasonably deems
adequate in accordance with customary industry practice to protect the Company and the
subsidiaries and their respective businesses; except as would not, individually or in the
aggregate, have a Material Adverse Effect, all such insurance is fully in force and the
Company has no reason to believe that it will not be able to renew any such insurance as and
when such insurance expires;
(x) The Company maintains a system of internal control over financial
-12-
reporting (as such term is defined in Rule 13a-15(f) under the Exchange Act) that has
been designed by the Companys principal executive officer and principal financial officer,
or under their supervision, to provide reasonable assurance regarding the reliability of
financial reporting and the preparation of financial statements for external purposes in
accordance with generally accepted accounting principles. At December 31, 2007, the
Companys internal control over financial reporting was effective and at March 31, 2008, the
Company was not aware of any material weaknesses in its internal control over financial
reporting;
(y) the Company maintains disclosure controls and procedures (as such term is defined
in Rule 13a-15(e) under the Exchange Act); such disclosure controls and procedures have been
designed to ensure that material information relating to the Company and its subsidiaries is
made known to the Companys principal executive officer and principal financial officer by
others within those entities; and such disclosure controls and procedures were effective as
of the last day they were tested;
(z) all statistical or market-related data included or incorporated by reference in the
Registration Statement, the Pre-Pricing Prospectuses, the Prospectus and the Permitted Free
Writing Prospectuses, if any, are based on or derived from sources that the Company
reasonably believes to be reliable and accurate, and the Company has obtained the written
consent to the use of such data from such sources to the extent required;
(aa) neither the Company nor any of the subsidiaries nor, to the Companys knowledge,
any employee or agent of the Company or any subsidiary has made any payment of funds of the
Company or any subsidiary or received or retained any funds in violation of any law, rule or
regulation (including, without limitation, the Foreign Corrupt Practices Act of 1977), which
payment, receipt or retention of funds is of a character required to be disclosed in the
Registration Statement, any Pre-Pricing Prospectus or the Prospectus;
(bb) the issuance and sale of the Shares as contemplated hereby will not cause any
holder of any shares of capital stock, securities convertible into or exchangeable or
exercisable for capital stock or options, warrants or other rights to purchase capital stock
or any other securities of the Company to have any right to acquire any shares of preferred
stock of the Company; and
(cc) neither the Company nor any of its Significant Subsidiaries nor, to the Companys
knowledge, any of their respective directors, officers, affiliates or controlling persons
has taken, directly or indirectly, any action designed, or which has constituted or might
reasonably be expected to cause or result in the stabilization or manipulation of the price
of any security of the Company to facilitate the sale or resale of the Shares.
4.
Certain Covenants of the Company
. The Company hereby agrees:
(a) to furnish such information as may be required and otherwise to cooperate
-13-
in qualifying the Shares for offering and sale under the securities or blue sky laws of
such states or other jurisdictions as you may designate and to maintain such qualifications
in effect so long as you may request for the distribution of the Shares;
provided
,
however
, that the Company shall not be required to qualify as a foreign corporation
or to consent to the service of process under the laws of any such jurisdiction; and to
promptly advise you of the receipt by the Company of any notification with respect to the
suspension of the qualification of the Shares for offer or sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose;
(b) to make available to the Underwriters in New York City, as soon as practicable
after this Agreement becomes effective, and thereafter from time to time to furnish to the
Underwriters, as many copies of the Prospectus (or of the Prospectus as amended or
supplemented if the Company shall have made any amendments or supplements thereto after the
effective date of the Registration Statement) as the Underwriters may request for the
purposes contemplated by the Act; in case any Underwriter is required to deliver (whether
physically or through compliance with Rule 172 under the Act or any similar rule), in
connection with the sale of the Shares, a prospectus after the nine-month period referred to
in Section 10(a)(3) of the Act, or after the time a post-effective amendment to the
Registration Statement is required pursuant to Item 512(a) of Regulation S-K under the Act,
the Company will prepare, at the expense of the requesting Underwriters, promptly upon
request such amendment or amendments to the Registration Statement and the Prospectus as may
be necessary to permit compliance with the requirements of Section 10(a)(3) of the Act or
Item 512(a) of Regulation S-K under the Act, as the case may be;
(c) if, at the time this Agreement is executed and delivered, it is necessary or
appropriate for a post-effective amendment to the Registration Statement to be filed with
the Commission and become effective before the Shares may be sold, the Company will use its
best efforts to cause such post-effective amendment or such Registration Statement to be
filed and become effective, and will pay any applicable fees in accordance with the Act, as
soon as possible; and the Company will advise you promptly and, if requested by you, will
confirm such advice in writing, when such post-effective amendment has become effective;
(d) if, prior to the expiration of nine months after the date of this Agreement, at any
time during the period when a prospectus is required by the Act to be delivered (whether
physically or through compliance with Rule 172 under the Act or any similar rule) in
connection with any sale of Shares, the Registration Statement shall cease to comply with
the requirements of the Act with respect to eligibility for the use of the form on which the
Registration Statement was filed with the Commission or the Registration Statement shall
cease to be an automatic shelf registration statement (as defined in Rule 405 under the
Act) or the Company shall have received, from the Commission, a notice, pursuant to Rule
401(g)(2), of objection to the use of the form on which the Registration Statement was filed
with the Commission, to (i) promptly notify you, (ii) promptly file with the Commission a
new registration statement under the Act, relating to the Shares,
-14-
or a post-effective amendment to the Registration Statement, which new registration
statement or post-effective amendment shall comply with the requirements of the Act and
shall be in a form satisfactory to you, (iii) use its best efforts to cause such new
registration statement or post-effective amendment to become effective under the Act as soon
as practicable, (iv) promptly notify you of such effectiveness and (v) take all other action
necessary or appropriate to permit the public offering and sale of the Shares to continue as
contemplated in the Prospectus; all references herein to the Registration Statement shall be
deemed to include each such new registration statement or post-effective amendment, if any;
(e) to advise you promptly, confirming such advice in writing, of any request by the
Commission for amendments or supplements to the Registration Statement, any Pre-Pricing
Prospectus, the Prospectus or any Permitted Free Writing Prospectus or for additional
information with respect thereto, or of notice of institution of proceedings for, or the
entry of a stop order, suspending the effectiveness of the Registration Statement and, if
the Commission should enter a stop order suspending the effectiveness of the Registration
Statement, to use its reasonable best efforts to obtain the lifting or removal of such order
as soon as possible; prior to the additional time of purchase, to advise you promptly of any
proposal to amend or supplement the Registration Statement, any Pre-Pricing Prospectus or
the Prospectus, and to provide you and Underwriters counsel copies of any such documents
for review and comment a reasonable amount of time prior to any proposed filing and to file
no such amendment or supplement to which you shall reasonably object in writing;
(f) subject to Section 4(e) hereof, to file promptly all reports and documents and any
preliminary or definitive proxy or information statement required to be filed by the Company
with the Commission in order to comply with the Exchange Act for so long as a prospectus is
required by the Act to be delivered (whether physically or through compliance with Rule 172
under the Act or any similar rule) in connection with any sale of Shares;
(g) to pay the fees applicable to the Registration Statement in connection with the
offering of the Shares within the time required by Rule 456(b)(1)(i) under the Act and in
compliance with Rule 456(b) and Rule 457(r) under the Act;
(h) for a period of not more than nine months, to advise the Underwriters promptly of
the happening of any event within the period during which a prospectus is required by the
Act to be delivered (whether physically or through compliance with Rule 172 under the Act or
any similar rule) in connection with any sale of Shares, which event could require the
making of any change in the Prospectus then being used so that the Prospectus would not
include an untrue statement of a material fact or omit to state a material fact necessary in
order to make the statements therein, in the light of the circumstances under which they are
made, not misleading, and to advise the Underwriters promptly if, during such period, it
shall become necessary to amend or supplement the Prospectus to cause the Prospectus to
comply with the requirements of the Act, and, in
-15-
each case, during such time, subject to Section 4(e) hereof, to prepare and furnish, at
the Companys expense, to the Underwriters promptly such amendments or supplements to such
Prospectus as may be necessary to reflect any such change or to effect such compliance;
(i) to make generally available to its security holders, and to deliver to you, an
earnings statement of the Company (which will satisfy the provisions of Section 11(a) of the
Act) covering a period of twelve months beginning after the effective date of the
Registration Statement (as defined in Rule 158(c) under the Act) as soon as is reasonably
practicable after the termination of such twelve-month period;
(j) to furnish to each of the Underwriters copies of the Registration Statement, as
initially filed with the Commission, and of all amendments thereto (including all exhibits
thereto and documents incorporated by reference therein);
(k) to apply the net proceeds from the sale of the Shares in the manner set forth under
the caption Use of Proceeds in the Prospectus Supplement;
(l) to pay all costs, expenses, fees and taxes in connection with (i) the preparation
and filing of the Registration Statement, each Basic Prospectus, each Pre-Pricing
Prospectus, the Prospectus Supplement, the Prospectus, each Permitted Free Writing
Prospectus and any amendments or supplements thereto, and the printing and furnishing of
copies of each thereof to the Underwriters and to dealers (including costs of mailing and
shipment), (ii) the registration, issue, sale and delivery of the Shares, (iii) the
producing, word processing and/or printing of this Agreement, any Agreement Among
Underwriters, any dealer agreements, any Powers of Attorney and any closing documents
(including compilations thereof) and the reproduction and/or printing and furnishing of
copies of each thereof to the Underwriters and (except closing documents) to dealers
(including costs of mailing and shipment), (iv) the qualification of the Shares for offering
and sale under state or foreign laws and the determination of their eligibility for
investment under state or foreign law (including the legal fees and filing fees and other
disbursements of counsel for the Underwriters) and the printing and furnishing of copies of
any blue sky surveys or legal investment surveys to the Underwriters and to dealers, (v) any
listing of the Shares on any securities exchange or qualification of the Shares for
quotation on the NYSE and any registration thereof under the Exchange Act, (vi) any filing
for review of the public offering of the Shares by FINRA, including the legal fees and
filing fees and other disbursements of counsel to the Underwriters relating to FINRA
matters, (vii) the fees and disbursements of any transfer agent or registrar for the Shares,
(viii) the costs and expenses of the Company relating to presentations or meetings
undertaken in connection with the marketing of the offering and sale of the Shares to
prospective investors and the Underwriters sales forces, including, without limitation,
expenses associated with the production of road show slides and graphics, travel, lodging
and other expenses incurred by the officers of the Company and (ix) the performance of the
Companys other obligations hereunder, it is understood, however, that, except as provided
in this Section, Section 7 and Section 9 hereof, the Underwriters will pay all of
-16-
their own costs and expenses, including the fees of their counsel and their tombstone
advertising costs;
(m) to comply with Rule 433(d) under the Act (without reliance on Rule 164(b) under the
Act) and with Rule 433(g) under the Act;
(n) beginning on the date hereof and ending on, and including, the date that is 90 days
after the date of this Agreement (the
Lock-Up Period
), without the prior written
consent of Goldman, Sachs and UBS, which consent will not be unreasonably withheld or
delayed, not to (i) issue, sell, offer to sell, contract or agree to sell, hypothecate,
pledge, grant any option to purchase or otherwise dispose of or agree to dispose of,
directly or indirectly, or establish or increase a put equivalent position or liquidate or
decrease a call equivalent position within the meaning of Section 16 of the Exchange Act and
the rules and regulations of the Commission promulgated thereunder, with respect to, any
Common Stock or any other securities of the Company that are substantially similar to Common
Stock, or any securities convertible into or exchangeable or exercisable for, or any
warrants or other rights to purchase, the foregoing, (ii) file or cause to become effective
a registration statement under the Act relating to the offer and sale of any Common Stock or
any other securities of the Company that are substantially similar to Common Stock, or any
securities convertible into or exchangeable or exercisable for, or any warrants or other
rights to purchase, the foregoing, (iii) enter into any swap or other arrangement that
transfers to another, in whole or in part, any of the economic consequences of ownership of
Common Stock or any other securities of the Company that are substantially similar to Common
Stock, or any securities convertible into or exchangeable or exercisable for, or any
warrants or other rights to purchase, the foregoing, whether any such transaction is to be
settled by delivery of Common Stock or such other securities, in cash or otherwise or (iv)
publicly announce an intention to effect any transaction specified in clause (i), (ii) or
(iii), except, in each case, for (A) the registration of the offer and sale of the Shares as
contemplated by this Agreement, (B) issuances of equity securities upon the exercise,
conversion or exchange of options, warrants or rights of other securities currently
outstanding, (C) the offer, sale or registration of equity securities, not to exceed 15% of
the outstanding capital stock of the Company, in connection with the acquisition of another
company or business, or (D) the offering, sale, issuance and delivery of equity securities
under the Companys compensation and employee benefit plans described in the Registration
Statement, each Pre-Pricing Prospectus and the Prospectus or the registration thereof on
Form S-8 under the Act;
(o) not to use any written communication that constitutes an offer or to sell or the
solicitation of an offer to buy the Shares other than the Basic Prospectus, Pre-Pricing
Prospectus, Prospectus or Permitted Free-Writing Prospectus;
(p) not to, and to cause the subsidiaries not to, take, directly or indirectly, any
action designed, or which will constitute, or has constituted, or might reasonably be
expected to cause or result in the stabilization or manipulation of the price of any
security
-17-
of the Company to facilitate the sale or resale of the Shares;
(q) to use its reasonable best efforts to cause the Shares to be listed on the NYSE at
or before the time of purchase or the additional time of purchase, as applicable; and
(r) to maintain a transfer agent and, if necessary under the jurisdiction of
incorporation of the Company, a registrar for the Common Stock.
5.
Reimbursement of the Underwriters Expenses
. If, after the execution and delivery
of this Agreement, the Shares are not delivered for any reason other than the termination of this
Agreement pursuant to Section 7 or 8 hereof or the default by one or more of the Underwriters in
its or their respective obligations hereunder, the Company shall, in addition to paying the amounts
described in Section 4(l) hereof, reimburse the Underwriters for all of their out-of-pocket
expenses, including the fees and disbursements of their counsel.
6.
Conditions of the Underwriters Obligations
. The several obligations of the
Underwriters hereunder are subject to the accuracy in all material respects (to the extent not
otherwise qualified therein as to materiality or Material Adverse Effect) of the representations
and warranties on the part of the Company on the date hereof, at the time of purchase and, if
applicable, at the additional time of purchase, the performance by the Company, in all material
respects, of its obligations hereunder and to the following additional conditions precedent:
(a) The Company shall furnish to you at the time of purchase and, if applicable, at the
additional time of purchase, an opinion of Sullivan & Cromwell LLP, counsel for the Company,
addressed to the Underwriters, and dated the time of purchase or the additional time of
purchase, as the case may be, with executed copies for each Underwriter, and in form and
substance reasonably satisfactory to Goldman, Sachs and UBS, in the form set forth in
Exhibit B
hereto.
(b) The Company shall furnish to you at the time of purchase and, if applicable, at the
additional time of purchase, an opinion of Charles T. Tuggle, Jr., Executive Vice President
and General Counsel, addressed to the Underwriters, and dated the time of purchase or the
additional time of purchase, as the case may be, with executed copies for each Underwriter,
and in form and substance reasonably satisfactory to Goldman, Sachs and UBS, in the form set
forth in
Exhibit C
hereto.
(c) You shall have received from KPMG LLP letters dated, respectively, the date of this
Agreement, the time of purchase and any additional time of purchase, and addressed to the
Underwriters (with executed copies for each Underwriter) and representatives of them in the
forms reasonably satisfactory to Goldman, Sachs and UBS.
(d) You shall have received at the time of purchase and, if applicable, at the
additional time of purchase, the favorable opinion of Simpson Thacher & Bartlett LLP,
counsel for the Underwriters, dated the time of purchase or the additional time of
-18-
purchase, as the case may be, in form and substance reasonably satisfactory to Goldman,
Sachs and UBS.
(e) The Prospectus Supplement shall have been filed with the Commission pursuant to
Rule 424(b) under the Act at or before 5:30 P.M., New York City time, on the second full
business day after the date of this Agreement (or such earlier time as may be required under
the Act).
(f) Prior to and at the time of purchase, and, if applicable, the additional time of
purchase, no stop order with respect to the effectiveness of the Registration Statement
shall have been issued under the Act or proceedings initiated under Section 8(d) or 8(e) of
the Act.
(g) The Company will, at the time of purchase and, if applicable, at the additional
time of purchase, deliver to you a certificate of its Chief Executive Officer and its Chief
Financial Officer, dated the time of purchase or the additional time of purchase, as the
case may be, in the form attached as
Exhibit D
hereto.
(h) You shall have received each of the signed Lock-Up Agreements referred to in
Section 3(s) hereof, and each such Lock-Up Agreement shall be in full force and effect at
the time of purchase.
(i) The Company shall have furnished to you such other documents and certificates as to
the accuracy and completeness of any statement in the Registration Statement, any
Pre-Pricing Prospectus, the Prospectus or any Permitted Free Writing Prospectus as of the
time of purchase and, if applicable, the additional time of purchase, as you may reasonably
request.
(j) The Shares shall have been approved for listing on the NYSE, subject only to notice
of issuance at or prior to the time of purchase or the additional time of purchase, as the
case may be.
(k) FINRA shall not have raised any objection with respect to the fairness or
reasonableness of the underwriting, or other arrangements of the transactions, contemplated
hereby.
7.
Effective Date of Agreement; Termination
. This Agreement shall become effective
when the parties hereto have executed and delivered this Agreement.
The obligations of the several Underwriters hereunder shall be subject to termination in the
absolute discretion of Goldman, Sachs and UBS, if (1) since the time of execution of this Agreement
or the earlier respective dates as of which information is given in the Registration Statement, the
Pre-Pricing Prospectuses, the Prospectus and the Permitted Free Writing Prospectuses, if any, there
has been any change or any development involving a prospective change in the business, properties,
management, financial condition or results of
-19-
operations of the Company and the subsidiaries taken as a whole, the effect of which change or
development is, in the sole judgment of Goldman, Sachs and UBS, so material and adverse as to make
it impractical or inadvisable to proceed with the public offering or the delivery of the Shares on
the terms and in the manner contemplated in the Registration Statement, the Pre-Pricing
Prospectuses, the Prospectus and the Permitted Free Writing Prospectuses, if any, or (2) since the
time of execution of this Agreement, there shall have occurred: (A) a suspension or material
limitation in trading in securities generally on the NYSE; (B) a suspension or material limitation
in trading in the Companys securities on the NYSE; (C) a general moratorium on commercial banking
activities declared by either federal or New York State authorities or a material disruption in
commercial banking or securities settlement or clearance services in the United States; (D) an
outbreak or escalation of hostilities or acts of terrorism involving the United States or a
declaration by the United States of a national emergency or war; or (E) any other calamity or
crisis or any change in financial, political or economic conditions in the United States or
elsewhere, if the effect of any such event specified in clause (D) or (E), in the sole judgment of
Goldman, Sachs and UBS, makes it impractical or inadvisable to proceed with the public offering or
the delivery of the Shares on the terms and in the manner contemplated in the Registration
Statement, the Pre-Pricing Prospectuses, the Prospectus and the Permitted Free Writing
Prospectuses, if any, or (3) since the time of execution of this Agreement, there shall have
occurred any downgrading in the rating accorded any securities of or guaranteed by the Company or
any subsidiary by any nationally recognized statistical rating organization, as that term is
defined in Rule 436(g)(2) under the Act.
If Goldman, Sachs and UBS elect to terminate this Agreement as provided in this Section 7, the
Company and each other Underwriter shall be notified promptly in writing.
If the sale to the Underwriters of the Shares, as contemplated by this Agreement, is not
carried out by the Underwriters for any reason permitted under this Agreement, or if such sale is
not carried out because the Company shall be unable to comply with any of the terms of this
Agreement, the Company shall not be under any obligation or liability under this Agreement (except
to the extent provided in Sections 4(l), 5 and 9 hereof), and the Underwriters shall be under no
obligation or liability to the Company under this Agreement (except to the extent provided in
Section 9 hereof) or to one another hereunder.
8.
Increase in Underwriters Commitments
. Subject to Sections 6 and 7 hereof, if any
Underwriter shall default in its obligation to take up and pay for the Firm Shares to be purchased
by it hereunder (otherwise than for a failure of a condition set forth in Section 6 hereof or a
reason sufficient to justify the termination of this Agreement under the provisions of Section 7
hereof) and if the number of Firm Shares which all Underwriters so defaulting shall have agreed but
failed to take up and pay for does not exceed 10% of the total number of Firm Shares, the
non-defaulting Underwriters (including the Underwriters, if any, substituted in the manner set
forth below) shall take up and pay for (in addition to the aggregate number of Firm Shares they are
obligated to purchase pursuant to Section 1 hereof) the number of Firm Shares agreed to be
purchased by all such defaulting Underwriters, as hereinafter provided. Such Shares shall be taken
up and paid for by such non-defaulting Underwriters in such amount or amounts as you may designate
with the consent of each Underwriter so designated or, in the event no such
-20-
designation is made, such Shares shall be taken up and paid for by all non-defaulting
Underwriters pro rata in proportion to the aggregate number of Firm Shares set forth opposite the
names of such non-defaulting Underwriters in
Schedule A
.
Without relieving any defaulting Underwriter from its obligations hereunder, the Company
agrees with the non-defaulting Underwriters that it will not sell any Firm Shares hereunder unless
all of the Firm Shares are purchased by the Underwriters (or by substituted Underwriters selected
by you with the approval of the Company or selected by the Company with your approval).
If a new Underwriter or Underwriters are substituted by the Underwriters or by the Company for
a defaulting Underwriter or Underwriters in accordance with the foregoing provision, the Company or
you shall have the right to postpone the time of purchase for a period not exceeding five business
days in order that any necessary changes in the Registration Statement and the Prospectus and other
documents may be effected.
The term Underwriter as used in this Agreement shall refer to and include any Underwriter
substituted under this Section 8 with like effect as if such substituted Underwriter had originally
been named in
Schedule A
hereto.
If the aggregate number of Firm Shares which the defaulting Underwriter or Underwriters agreed
to purchase exceeds 10% of the total number of Firm Shares which all Underwriters agreed to
purchase hereunder, and if neither the non-defaulting Underwriters nor the Company shall make
arrangements within the five business day period stated above for the purchase of all the Firm
Shares which the defaulting Underwriter or Underwriters agreed to purchase hereunder, this
Agreement shall terminate without further act or deed and without any liability on the part of the
Company to any Underwriter and without any liability on the part of any non-defaulting Underwriter
to the Company. Nothing in this paragraph, and no action taken hereunder, shall relieve any
defaulting Underwriter from liability in respect of any default of such Underwriter under this
Agreement.
9.
Indemnity and Contribution
.
(a) The Company agrees to indemnify, defend and hold harmless each Underwriter, its
partners, directors, officers and members, any person who controls any Underwriter within
the meaning of Section 15 of the Act or Section 20 of the Exchange Act, and any affiliate
(within the meaning of Rule 405 under the Act) of such Underwriter, and the successors and
assigns of all of the foregoing persons, from and against any loss, damage, expense,
liability or claim (including the reasonable cost of investigation) which, jointly or
severally, any such Underwriter or any such person may incur under the Act, the Exchange
Act, the common law or otherwise, insofar as such loss, damage, expense, liability or claim
arises out of or is based upon (i) any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement (or in the Registration Statement as
amended by any post-effective amendment thereof by the Company) or arises out of or is based
upon any omission or alleged
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omission to state a material fact required to be stated therein or necessary to make
the statements therein not misleading, except insofar as any such loss, damage, expense,
liability or claim arises out of or is based upon any untrue statement or alleged untrue
statement of a material fact contained in, and in conformity with information concerning
such Underwriter furnished in writing by or on behalf of such Underwriter through you to the
Company expressly for use in, the Registration Statement, the Prospectus (as defined below)
and any Covered Free Writing Prospectus, or arises out of or is based upon any omission or
alleged omission to state a material fact in the Registration Statement, the Prospectus (as
defined below) and any Covered Free Writing Prospectus in connection with such information,
which material fact was not contained in such information and which material fact was
required to be stated in such Registration Statement or was necessary to make such
information not misleading or (ii) any untrue statement or alleged untrue statement of a
material fact included in any Prospectus (the term Prospectus for the purpose of this
Section 9 being deemed to include any Basic Prospectus, any Pre-Pricing Prospectus, the
Prospectus Supplement, the Prospectus and any amendments or supplements to the foregoing),
in any Covered Free Writing Prospectus, in any issuer information (as defined in Rule 433
under the Act) of the Company or in any Prospectus together with any combination of one or
more of the Covered Free Writing Prospectuses, if any, or arises out of or is based upon any
omission or alleged omission to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were made, not
misleading, except, with respect to such Prospectus or any Covered Free Writing Prospectus,
insofar as any such loss, damage, expense, liability or claim arises out of or is based upon
any untrue statement or alleged untrue statement of a material fact contained in, and in
conformity with information concerning such Underwriter furnished in writing by or on behalf
of such Underwriter through you to the Company expressly for use in, such Prospectus or
Covered Free Writing Prospectus or arises out of or is based upon any omission or alleged
omission to state a material fact in such Prospectus or Covered Free Writing Prospectus in
connection with such information, which material fact was not contained in such information
and which material fact was necessary in order to make the statements in such information,
in the light of the circumstances under which they were made, not misleading.
(b) Each Underwriter severally agrees to indemnify, defend and hold harmless the
Company, its directors and officers, and any person who controls the Company within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act, and the successors and
assigns of all of the foregoing persons, from and against any loss, damage, expense,
liability or claim (including the reasonable cost of investigation) which, jointly or
severally, the Company or any such person may incur under the Act, the Exchange Act, the
common law or otherwise, insofar as such loss, damage, expense, liability or claim arises
out of or is based upon any untrue statement or alleged untrue statement of a material fact
contained in, and in conformity with information concerning such Underwriter furnished in
writing by or on behalf of such Underwriter through you to the Company expressly for use in,
the Registration Statement (or in the Registration Statement as amended by any
post-effective amendment thereof by the Company), the Prospectus or any Covered Free Writing
Prospectus, or arises out of or is based upon any
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omission or alleged omission to state a material fact in such Registration Statement or
Prospectus or Covered Free Writing Prospectus in connection with such information, which
material fact was not contained in such information and which material fact was required to
be stated in such Registration Statement or was necessary to make such information not
misleading.
(c) If any action, suit or proceeding (each, a
Proceeding
) is brought against
a person (an
indemnified party
) in respect of which indemnity may be sought
against the Company or an Underwriter (as applicable, the
indemnifying party
)
pursuant to subsection (a) or (b), respectively, of this Section 9, such indemnified party
shall promptly notify such indemnifying party in writing of the institution of such
Proceeding and such indemnifying party shall assume the defense of such Proceeding,
including the employment of counsel reasonably satisfactory to such indemnified party and
payment of all fees and expenses;
provided
,
however
, that the omission to so
notify such indemnifying party shall not relieve such indemnifying party from any liability
which such indemnifying party may have to any indemnified party or otherwise. The
indemnified party or parties shall have the right to employ its or their own counsel in any
such case, but the fees and expenses of such counsel shall be at the expense of such
indemnified party or parties unless the employment of such counsel shall have been
authorized in writing by the indemnifying party in connection with the defense of such
Proceeding or the indemnifying party shall not have, within a reasonable period of time in
light of the circumstances, employed counsel to defend such Proceeding or such indemnified
party or parties shall have reasonably concluded that there may be defenses available to it
or them which are different from, additional to or in conflict with those available to such
indemnifying party (in which case such indemnifying party shall not have the right to direct
the defense of such Proceeding on behalf of the indemnified party or parties), in any of
which events such fees and expenses shall be borne by such indemnifying party and paid as
incurred (it being understood, however, that such indemnifying party shall not be liable for
the expenses of more than one separate counsel (in addition to any local counsel) in any one
Proceeding or series of related Proceedings representing the indemnified parties who are
parties to such Proceeding). The indemnifying party shall not be liable for any settlement
of any Proceeding effected without its written consent but, if settled with its written
consent, such indemnifying party agrees to indemnify and hold harmless the indemnified party
or parties from and against any loss or liability by reason of such settlement.
Notwithstanding the foregoing sentence, if at any time an indemnified party shall have
requested an indemnifying party to reimburse the indemnified party for fees and expenses of
counsel as contemplated by the second sentence of this Section 9(c), then the indemnifying
party agrees that it shall be liable for any settlement of any Proceeding effected without
its written consent if (i) such settlement is entered into more than 60 business days after
receipt by such indemnifying party of the aforesaid request, (ii) such indemnifying party
shall not have fully reimbursed the indemnified party in accordance with such request prior
to the date of such settlement and (iii) such indemnified party shall have given the
indemnifying party at least 30 days prior notice of its intention to settle. No
indemnifying party shall, without the prior written consent of the indemnified party, effect
any settlement of any
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pending or threatened Proceeding in respect of which any indemnified party is or could
have been a party and indemnity could have been sought hereunder by such indemnified party,
unless such settlement includes an unconditional release of such indemnified party from all
liability on claims that are the subject matter of such Proceeding and does not include an
admission of fault or culpability or a failure to act by or on behalf of such indemnified
party.
(d) If the indemnification provided for in this Section 9 is unavailable to an
indemnified party under subsections (a) and (b) of this Section 9 or insufficient to hold an
indemnified party harmless in respect of any losses, damages, expenses, liabilities or
claims referred to therein, then each applicable indemnifying party shall contribute to the
amount paid or payable by such indemnified party as a result of such losses, damages,
expenses, liabilities or claims (i) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and the Underwriters on the other
hand from the offering of the Shares or (ii) if the allocation provided by clause (i) above
is not permitted by applicable law, in such proportion as is appropriate to reflect not only
the relative benefits referred to in clause (i) above but also the relative fault of the
Company on the one hand and of the Underwriters on the other in connection with the
statements or omissions which resulted in such losses, damages, expenses, liabilities or
claims, as well as any other relevant equitable considerations. The relative benefits
received by the Company on the one hand and the Underwriters on the other shall be deemed to
be in the same respective proportions as the total net proceeds from the offering received
by the Company, and the total underwriting discounts and commissions received by the
Underwriters, bear to the aggregate public offering price of the Shares. The relative fault
of the Company on the one hand and of the Underwriters on the other shall be determined by
reference to, among other things, whether the untrue statement or alleged untrue statement
of a material fact or omission or alleged omission relates to information supplied by the
Company or by the Underwriters and the parties relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission. The amount
paid or payable by a party as a result of the losses, damages, expenses, liabilities and
claims referred to in this subsection shall be deemed to include any legal or other fees or
expenses reasonably incurred by such party in connection with investigating, preparing to
defend or defending any Proceeding.
(e) The Company and the Underwriters agree that it would not be just and equitable if
contribution pursuant to this Section 9 were determined by pro rata allocation (even if the
Underwriters were treated as one entity for such purpose) or by any other method of
allocation that does not take account of the equitable considerations referred to in
subsection (d) above. Notwithstanding the provisions of this Section 9, no Underwriter
shall be required to contribute any amount in excess of the amount by which the total price
at which the Shares underwritten by such Underwriter and distributed to the public were
offered to the public exceeds the amount of any damage which such Underwriter has otherwise
been required to pay by reason of such untrue statement or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to
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contribution from any person who was not guilty of such fraudulent misrepresentation.
The Underwriters obligations to contribute pursuant to this Section 9 are several in
proportion to their respective underwriting commitments and not joint.
(f) The indemnity and contribution agreements contained in this Section 9 and the
covenants, warranties and representations of the Company contained in this Agreement shall
remain in full force and effect regardless of any investigation made by or on behalf of any
Underwriter, its partners, directors, officers or members or any person (including each
partner, officer, director or member of such person) who controls any Underwriter within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act, or by or on behalf of
the Company, its directors or officers or any person who controls the Company within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act, and shall survive any
termination of this Agreement or the issuance and delivery of the Shares.
10.
Information Furnished by the Underwriters
. The statements set forth in the last
paragraph on the cover page of the Prospectus and in the sixth and 13
th
through
17
th
paragraphs and the second and third sentences of the 18
th
paragraph all
under the caption Underwriting in the Pre-Pricing Prospectus and Prospectus, only insofar as such
statements relate to the delivery of the Shares by the Underwriters amount of selling concession
or to the sale of Additional Shares and stabilization activities that may be undertaken by the
Underwriters, constitute the only information furnished by or on behalf of the Underwriters, as
such information is referred to in Sections 3 and 9 hereof.
11.
Notices
. Except as otherwise herein provided, all statements, requests, notices
and agreements shall be in writing or by telegram or facsimile and, if to the Underwriters, shall
be sufficient in all respects if delivered or sent to Goldman, Sachs & Co., 85 Broad Street, 20th
Floor, New York, New York 10004, Attention: Registration Department and UBS Securities LLC, 299
Park Avenue, New York, New York 10171-0026, Attention: Syndicate Department; and if to the Company,
shall be sufficient in all respects if delivered or sent to the Company at the offices of the
Company. Attn: Corporate Secretary, at 165 Madison Avenue, Memphis, TN 38103.
12.
Governing Law; Construction
. This Agreement and any claim, counterclaim or
dispute of any kind or nature whatsoever arising out of or in any way relating to this Agreement
(
Claim
), directly or indirectly, shall be governed by, and construed in accordance with,
the laws of the State of New York. The section headings in this Agreement have been inserted as a
matter of convenience of reference and are not a part of this Agreement.
13.
Submission to Jurisdiction
. Except as set forth below, no Claim may be commenced,
prosecuted or continued in any court other than the courts of the State of New York located in the
City and County of New York or in the United States District Court for the Southern District of New
York, which courts shall have jurisdiction over the adjudication of such matters, and the Company
consents to the jurisdiction of such courts and personal service with respect thereto. The Company
hereby consents to personal jurisdiction, service and venue in any
-25-
court in which any Claim arising out of or in any way relating to this Agreement is brought by
any third party against any Underwriter or any indemnified party. Each Underwriter and the Company
(on its behalf and, to the extent permitted by applicable law, on behalf of its shareholders and
affiliates) waive all right to trial by jury in any action, proceeding or counterclaim (whether
based upon contract, tort or otherwise) in any way arising out of or relating to this Agreement.
The Company agrees that a final judgment in any such action, proceeding or counterclaim brought in
any such court shall be conclusive and binding upon the Company and may be enforced in any other
courts to the jurisdiction of which the Company is or may be subject, by suit upon such judgment.
14.
Parties at Interest
. The Agreement herein set forth has been and is made solely
for the benefit of the Underwriters and the Company and to the extent provided in Section 9 hereof
the controlling persons, partners, directors, officers, members and affiliates referred to in such
Section, and their respective successors, assigns, heirs, personal representatives and executors
and administrators. No other person, partnership, association or corporation (including a
purchaser, as such purchaser, from any of the Underwriters) shall acquire or have any right under
or by virtue of this Agreement.
15.
No Fiduciary Relationship
. The Company acknowledges and agrees that (i) the
purchase and sale of the Shares pursuant to this Agreement is an arms-length commercial
transaction between the Company, on the one hand, and the several Underwriters, on the other, (ii)
in connection with the sale of the Shares, each Underwriter is acting solely as a principal and not
the agent or fiduciary of the Company, (iii) no Underwriter has assumed an advisory or fiduciary
responsibility in favor of the Company with respect to the sale of the Shares (irrespective of
whether such Underwriter has advised or is currently advising the Company on other matters) and
(iv) the Company has consulted its own legal and financial advisors to the extent it deemed
appropriate. The Company agrees that it will not claim that the Underwriters, or any of them, has
rendered advisory services of any nature or respect, or owes a fiduciary or similar duty to the
Company, in connection with the sale of the Shares.
16.
Counterparts
. This Agreement may be signed by the parties in one or more
counterparts which together shall constitute one and the same agreement among the parties.
17.
Successors and Assigns
. This Agreement shall be binding upon the Underwriters and
the Company and their successors and assigns and any successor or assign of all or substantially
all of the Companys and any of the Underwriters respective businesses and/or assets.
18.
Miscellaneous
. UBS, an indirect, wholly owned subsidiary of UBS AG, is not a bank
and is separate from any affiliated bank, including any U.S. branch or agency of UBS AG. Because
UBS is a separately incorporated entity, it is solely responsible for its own contractual
obligations and commitments, including obligations with respect to sales and purchases of
securities. Securities sold, offered or recommended by UBS are not deposits, are not insured by
the Federal Deposit Insurance Corporation, are not guaranteed by a branch or agency, and are not
otherwise an obligation or responsibility of a branch or agency.
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[The Remainder of This Page Intentionally Left Blank; Signature Page Follows]
-27-
If the foregoing correctly sets forth the understanding between the Company and the several
Underwriters, please so indicate in the space provided below for that purpose, whereupon this
Agreement and your acceptance shall constitute a binding agreement between the Company and the
Underwriters, severally.
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Very truly yours,
First Horizon National Corporation
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By:
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/s/
D. Bryan Jordan
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Name:
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D. Bryan Jordan
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Title:
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Executive Vice President and Chief Financial
Officer
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[UNDERWRITING AGREEMENT SIGNATURE PAGE]
Accepted and agreed to as of the date first
above written, on behalf of themselves and
the other several Underwriters named in
Schedule A
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By:
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Goldman,
Sachs & Co.
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(Goldman, Sachs & Co.)
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By:
UBS Securities LLC
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By:
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/s/
Michael J. Anderson
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Name:
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Michael J. Anderson
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Title:
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Managing Director
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By:
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/s/
Michael Harris
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Name:
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Michael Harris
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Title:
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Executive Director
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[UNDERWRITING AGREEMENT SIGNATURE PAGE]