Exhibit 1.1
WEBSTER FINANCIAL CORPORATION
6,000,000 Depositary Shares, each representing a 1/1,000
th
interest
in a share of 5.250% Series F
Non-Cumulative
Perpetual Preferred Stock
UNDERWRITING AGREEMENT
December 5, 2017
MERRILL LYNCH, PIERCE,
FENNER & SMITH
INCORPORATED
WELLS FARGO SECURITIES, LLC
J.P. MORGAN SECURITIES LLC
CITIGROUP GLOBAL MARKETS INC.
As Representatives of the several
Underwriters
named in
Schedule 1
attached hereto,
c/o Merrill Lynch, Pierce, Fenner & Smith
Incorporated
One Bryant Park
New York, New York 10036
c/o Wells Fargo Securities, LLC
550 South Tryon Street
Charlotte, North Carolina 28202
c/o J.P. Morgan Securities LLC
383 Madison Avenue
New York, New York 10179
c/o Citigroup Global Markets Inc.
388 Greenwich Street
New York, New York 10013
Ladies and Gentlemen:
Webster Financial
Corporation, a Delaware corporation (the “
Company
”), proposes to sell 6,000,000 Depositary Shares (“
Depositary Shares
”), each representing 1/1,000
th
of a share of
its 5.250% Series F
Non-Cumulative
Perpetual Preferred Stock, par value $0.01 per share and a liquidation preference of $25,000 per share (each, an “
Underlying Preferred Share
”) (the
“
Stock
”) to the underwriters listed on Schedule 1 hereto (the “
Underwriters
”). This Agreement is to confirm the agreement concerning the purchase of the Stock from the Company by the Underwriters.
The Depositary Shares will be issued by Broadridge Financial Solutions, Inc. (the “
Depositary
”) pursuant to the terms of a
Deposit Agreement (the “
Deposit Agreement
”) to be entered into among the Company, the Depositary, and the holders from time to time of Depositary Receipts issued thereunder. The Depositary Shares shall be evidenced by Depositary
Receipts issued pursuant to the Deposit Agreement (the “
Depositary Receipts
”).
1.
Representations, Warranties and Agreements of the Company.
The Company represents,
warrants and agrees that:
(a) A registration statement on Form
S-3
relating to the
Stock (i) has been prepared by the Company in conformity with the requirements of the Securities Act of 1933, as amended (the “
Securities Act
”), and the rules and regulations (the “
Rules and Regulations
”) of
the Securities and Exchange Commission (the “
Commission
”) thereunder; (ii) has been filed with the Commission under the Securities Act; and (iii) is effective under the Securities Act. Copies of such registration statement
and any amendment thereto have been delivered by the Company to you as the Representatives (the “
Representatives
”) of the Underwriters. As used in this Agreement:
(i) “
Applicable Time
” means 2:40 p.m. (New York City time) on December 5, 2017;
(ii) “
Effective Date
” means any date as of which any part of such registration statement relating to the Stock
became, or is deemed to have become, effective under the Securities Act in accordance with the Rules and Regulations;
(iii) “
Issuer Free Writing Prospectus
” means each “free writing prospectus” (as defined in Rule 405
of the Rules and Regulations) prepared by or on behalf of the Company or used or referred to by the Company in connection with the offering of the Stock;
(iv) “
Preliminary Prospectus
” means any preliminary prospectus relating to the Stock and the Underlying
Preferred Shares included in such registration statement or filed with the Commission pursuant to Rule 424(b) of the Rules and Regulations, including any preliminary prospectus supplement thereto relating to the Stock;
(v) “
Pricing Disclosure Package
” means, as of the Applicable Time, the most recent Preliminary Prospectus,
together with the information included in
Schedule 2
hereto and each Issuer Free Writing Prospectus filed or used by the Company on or before the Applicable Time, other than a road show that is an Issuer Free Writing Prospectus under Rule 433
of the Rules and Regulations;
(vi) “
Prospectus
” means the final prospectus relating to the Stock,
including any prospectus supplement thereto relating to the Stock, as filed with the Commission pursuant to Rule 424(b) of the Rules and Regulations; and
(vii) “
Registration Statement
” means, collectively, the various parts of such registration statement, each as
amended as of the Effective Date for such part, including any Preliminary Prospectus or the Prospectus and all exhibits to such registration statement.
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Any reference to any Preliminary Prospectus or the Prospectus shall be deemed to refer to and
include any documents incorporated by reference therein pursuant to Form
S-3
under the Securities Act as of the date of such Preliminary Prospectus or the Prospectus, as the case may be. Any reference to the
“
most recent Preliminary Prospectus
” shall be deemed to refer to the latest Preliminary Prospectus included in the Registration Statement or filed pursuant to Rule 424(b) prior to or on the date hereof (including, for purposes
hereof, any documents incorporated by reference therein prior to or on the date hereof). Any reference to any amendment or supplement to any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include any document filed under
the Securities Exchange Act of 1934, as amended (the “
Exchange Act
”), after the date of such Preliminary Prospectus or the Prospectus, as the case may be, and incorporated by reference in such Preliminary Prospectus or the
Prospectus, as the case may be; and any reference to any amendment to the Registration Statement shall be deemed to include any annual report of the Company on Form
10-K
filed with the Commission pursuant to
Section 13(a) or 15(d) of the Exchange Act after the Effective Date that is incorporated by reference in the Registration Statement. The Commission has not issued any order preventing or suspending the use of any Preliminary Prospectus or the
Prospectus or suspending the effectiveness of the Registration Statement, and no proceeding or examination for such purpose has been instituted, or to the knowledge of the Company, threatened by the Commission. The Commission has not notified the
Company of any objection to the use of the form of the Registration Statement.
(b) The Company has been since the time of
initial filing of the Registration Statement and continues to be a “well-known seasoned issuer” (as defined in Rule 405) eligible to use Form
S-3
for the offering of the Stock,
including not having been an “ineligible issuer” (as defined in Rule 405) at any such time or date. The Registration Statement is an “automatic shelf registration statement” (as
defined in Rule 405)
and was filed not earlier than the date that is three years prior to the Delivery Date (as defined in Section 4).
(c) The Registration Statement conformed and will conform in all material respects on the Effective Date and on the Delivery
Date, 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 Securities Act and the Rules and Regulations. 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) and on the Delivery Date to the requirements of the Securities Act and the Rules and Regulations. The documents incorporated
by reference in any Preliminary Prospectus or the Prospectus conformed, and any further documents so incorporated will conform, when filed with the Commission, in all material respects to the requirements of the Exchange Act or the Securities Act,
as applicable, and the rules and regulations of the Commission thereunder.
(d) The Registration Statement did not, as of
the Effective Date, 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, which information is specified in Section 8(e).
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(e) The Prospectus will not, as of its date and on the Delivery Date, 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 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, which information is specified in Section 8(e).
(f) The documents incorporated by
reference in any Preliminary Prospectus or the Prospectus did not, and any further documents filed and incorporated by reference therein will not, when filed with the Commission, 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.
(g) The Pricing Disclosure Package did not, as of the Applicable Time, contain an untrue statement of a material fact or omit
to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading;
provided
that no representation or warranty is made as to information contained in or omitted
from the Pricing Disclosure Package 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, which information is
specified in Section 8(e).
(h) Each Issuer Free Writing Prospectus (including, without limitation, any road show that
is a free writing prospectus under Rule 433), when considered together with the Pricing Disclosure Package as of the Applicable Time, 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.
(i) Each Issuer Free Writing Prospectus conformed or will conform in all material respects to the requirements of the
Securities Act and the Rules and Regulations on the date of first use, and the Company has complied with any filing requirements applicable to such Issuer Free Writing Prospectus pursuant to the Rules and Regulations. 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 Rules and Regulations all Issuer Free Writing Prospectuses
that were not required to be filed pursuant to the Rules and Regulations.
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(j) Each of the Company and its subsidiaries (as defined in Section 17) has
been duly organized, is validly existing and in good standing as a corporation or other business entity under the laws of its jurisdiction of organization and is duly qualified to do business and in good standing as a foreign corporation or other
business entity in each jurisdiction in which its ownership or lease of property or the conduct of its businesses requires such qualification, except where the failure to be so qualified or in good standing would not, in the aggregate, reasonably be
expected to have a material adverse effect on the condition (financial or otherwise), results of operations, stockholders’ equity, properties, business or prospects of the Company and its subsidiaries taken as a whole (a “
Material
Adverse Effect
”); each of the Company and its subsidiaries has all power and authority necessary to own or hold its properties and to conduct the businesses in which it is engaged. The Company is duly registered as a financial holding
company under the Bank Holding Company Act of 1956, as amended (the “BHCA”) and meets the applicable requirements for qualification as such. Webster Bank, National Association (the “Bank”) is a national bank chartered under the
laws of the United States. The Company does not own or control, directly or indirectly, any corporation, association or other entity other than the subsidiaries listed in Exhibit 21 to the Company’s Annual Report on Form
10-K
for the most recent fiscal year. None of the subsidiaries of the Company (other than the Bank and Webster Mortgage Investment Corporation (collectively, the “
Significant Subsidiaries
”)) is a
“significant subsidiary” (as defined in Rule 405).
(k) The authorized capital stock of the Company consists of
200,000,000 shares of common stock, par value $0.01 per share (“
Common Stock
”), and 3,000,000 shares of preferred stock, par value $0.01 per share (“
Preferred Stock
”). As of November 27, 2017, there are (i)
99,099,664 shares of Common Stock and 5,060 shares of the Company’s 6.50% Series E
Non-Cumulative
Perpetual Convertible Preferred Stock issued and outstanding, (ii) 1,579,935 shares of Common Stock held
in the Company’s treasury, (iii) 9,777 warrants issued and outstanding to purchase 9,777 shares of Common Stock and (iv) 646,240 shares of Common Stock reserved for issuance upon exercise of outstanding stock options or otherwise. All of the
issued shares of capital stock of the Company have been duly authorized and validly issued, are fully paid and
non-assessable,
conform in all material respects to the description thereof contained in the most
recent Preliminary Prospectus and were issued in compliance with federal and state securities laws and not in violation of any preemptive right, resale right, right of first refusal or similar right. All of the Company’s options, warrants and
other rights to purchase or exchange any securities for shares of the Company’s capital stock have been duly authorized and validly issued, conform to any description thereof contained in the most recent Preliminary Prospectus and were issued
in compliance with federal and state securities laws. All of the issued shares of capital stock of each subsidiary of the Company have been duly authorized and validly issued, are fully paid and
non-assessable
and are owned directly or indirectly by the Company, free and clear of all liens, encumbrances, equities or claims, except for such liens, encumbrances, equities or claims as could not, in the aggregate, reasonably be expected to have a Material
Adverse Effect.
(l) The shares of the Stock to be issued and sold by the Company to the Underwriters hereunder have been
duly authorized and, upon payment and delivery in accordance with this Agreement, will be validly issued, fully paid and
non-assessable,
will conform to the description thereof contained in the most recent
Preliminary Prospectus, will be issued in compliance with federal and state securities laws and will be free of statutory and contractual preemptive rights, rights of first refusal and similar rights.
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(m) The execution and filing of the certificate of designation relating to the
Underlying Preferred Shares (the “
Certificate of Designation
”) has been duly authorized by the Company and, as of the Closing Date, the Certificate of Designation will have been duly executed and filed with the Secretary of State of
the State of Delaware. The Underlying Preferred Shares in respect of the Stock have been duly authorized by the Company and, when such shares are issued and delivered against payment therefore as contemplated by the terms of this Agreement, such
shares will be validly issued, fully paid and
non-assessable,
and the issuance of such shares is not subject to any preemptive or similar rights. The Underlying Preferred Shares conform in all material
respects to the description of the Underlying Preferred Shares contained in the most recent Preliminary Prospectus.
(n)
The deposit of the Underlying Preferred Shares in respect of the Stock by the Company in accordance with the Deposit Agreement has been duly authorized and, when the Stock (evidenced by the related Depositary Receipts) are issued and delivered in
accordance with the terms of this Agreement and the Deposit Agreement, the Stock will represent legal and valid interests in such Underlying Preferred Shares, and the Stock (evidenced by the related Depositary Receipts) will entitled holders thereof
to the benefits provided therein and in the Deposit Agreement.
(o) The Company has all requisite corporate power and
authority to execute, deliver and perform its obligations under this Agreement. This Agreement has been duly and validly authorized, executed and delivered by the Company.
(p) The Deposit Agreement has been duly authorized, executed and delivered by the Company and is a valid and binding agreement
of the Company, enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally and equitable principles of general applicability. The Deposit Agreement conforms in
all material respect to the description of the Deposit Agreement contained in the most recent Preliminary Prospectus.
(q)
The execution, delivery and performance of this Agreement and the Deposit Agreement by the Company, the consummation of the transactions contemplated hereby and the application of the proceeds from the sale of the Stock as described under “Use
of Proceeds” in the most recent Preliminary Prospectus will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, impose any lien, charge or encumbrance upon any property or assets of the Company
and its subsidiaries, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement, license or other agreement or instrument to which the Company or any of its subsidiaries is a party or by which the Company or any of its
subsidiaries is bound or to which any of the property or assets of the Company or any of its subsidiaries is subject; (ii) result in any violation of the provisions of the charter or
by-laws
(or similar
organizational
6
documents) of the Company or any of its subsidiaries; or (iii) result in any violation of any statute or any order, rule or regulation of any court or governmental agency or body having
jurisdiction over the Company or any of its subsidiaries or any of their properties or assets except, in the cases of clauses (i) and (iii), for those conflicts, breaches, violations, impositions or defaults that would not reasonably be
expected, individually or in the aggregate, to have a Material Adverse Effect.
(r) Except as described in the most recent
Preliminary Prospectus, no consent, approval, authorization, or license or order of, or filing or registration with, any court or governmental agency or body having jurisdiction over the Company or any of its subsidiaries or any of their properties
or assets is required for the execution, delivery and performance of this Agreement and the Deposit Agreement by the Company, the consummation of the transactions contemplated hereby, the application of the proceeds from the sale of the Stock as
described under “Use of Proceeds” in the most recent Preliminary Prospectus, except for the registration of the Stock under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required
under the Exchange Act and applicable state or foreign securities laws in connection with the purchase and sale of the Stock by the Underwriters.
(s) 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 Securities Act with respect to any securities of the Company owned or to be owned by such person or to require the Company to include such securities in the securities registered
pursuant to the Registration Statement or in any securities being registered pursuant to any other registration statement filed by the Company under the Securities Act.
(t) The Company has not sold or issued any securities that would be integrated with the offering of the Stock contemplated by
this Agreement pursuant to the Securities Act, the Rules and Regulations or the interpretations thereof by the Commission.
(u) Neither the Company nor any of its subsidiaries has sustained, since the date of the latest audited financial statements
included or incorporated by reference in the most recent Preliminary Prospectus, any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or
governmental action, order or decree, and since such date, there has not been any change in the capital stock or long-term debt of the Company or any of its subsidiaries or any adverse change, or any development involving a prospective adverse
change, in or affecting the condition (financial or otherwise), results of operations, stockholders’ equity, properties, management, business or prospects of the Company and its subsidiaries taken as a whole, in each case except as could not,
in the aggregate, reasonably be expected to have a Material Adverse Effect.
(v) Since the date as of which information is
given in the most recent Preliminary Prospectus, the Company has not (i) incurred any material liability or obligation, direct or contingent, other than liabilities and obligations that were incurred in the ordinary course of business,
(ii) entered into any material transaction not in the ordinary course of business or (iii) declared or paid any dividend on its capital stock.
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(w) The historical financial statements (including the related notes and
supporting schedules) included or incorporated by reference in the most recent Preliminary Prospectus comply as to form in all material respects with the requirements of Regulation
S-X
under the Securities Act
and present fairly the financial condition, results of operations and cash flows of the entities purported to be shown thereby at the dates and for the periods indicated and have been prepared in conformity with accounting principles generally
accepted in the United States applied on a consistent basis throughout the periods involved.
(x) KPMG LLP, which has
certified certain financial statements of the Company and its consolidated subsidiaries, whose reports appear in the most recent Preliminary Prospectus or are incorporated by reference therein and which has delivered the initial letter referred to
in Section 7(f) hereof, are independent public accountants as required by the Securities Act and the Rules and Regulations
during the periods covered by the financial statements on which it reported contained or incorporated by reference
in the most recent Preliminary Prospectus.
(y) The statistical and market-related data, if any, included under the caption
“Prospectus Supplement Summary” in the most recent Preliminary Prospectus, included under the captions “Item 1. Business” and “Item 7. Management’s Discussion and Analysis of Financial Condition and Results of
Operations” in the most recent Preliminary Prospectus and the consolidated financial statements of the Company and its subsidiaries included or incorporated by reference in the most recent Preliminary Prospectus are based on or derived from
sources that the Company believes to be reliable and accurate in all material respects.
(z) Neither the Company nor any
subsidiary is, and as of the Delivery Date and, after giving effect to the offer and sale of the Stock and the application of the proceeds therefrom as described under “Use of Proceeds” in the most recent Preliminary Prospectus and the
Prospectus, none of them will be, (i) an “investment company” within the meaning of such term under the Investment Company Act of 1940, as amended (the “
Investment Company Act
”), and the rules and regulations of the
Commission thereunder or (ii) a “business development company” (as defined in Section 2(a)(48) of the Investment Company Act).
(aa) Except as disclosed in the Preliminary Prospectus and the Prospectus, there are no legal or governmental proceedings
pending to which the Company or any of its subsidiaries is a party or of which any property or assets of the Company or any of its subsidiaries is the subject that could, in the aggregate, reasonably be expected to have a Material Adverse Effect or
could, in the aggregate, reasonably be expected to have a material adverse effect on the performance of this Agreement or the Deposit Agreement or the consummation of the transactions contemplated hereby; and to the Company’s knowledge, no such
proceedings are threatened or contemplated by governmental authorities or others.
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(bb) No relationship, direct or indirect, exists between or among the Company, on
the one hand, and the directors, officers, stockholders, customers or suppliers of the Company, on the other hand, that is required to be described in the most recent Preliminary Prospectus or the Prospectus which is not so described.
(cc) No labor disturbance by the employees of the Company or its subsidiaries exists or, to the knowledge of the Company, is
imminent that could reasonably be expected to have a Material Adverse Effect.
(dd) (i) Each “employee benefit
plan” (within the meaning of Section 3(3) of the Employee Retirement Security Act of 1974, as amended (“
ERISA
”)) for which the Company or any member of its “Controlled Group” (defined as any organization which is
a member of a controlled group of corporations within the meaning of Section 414 of the Internal Revenue Code of 1986, as amended (the “
Code
”)) would have any liability (each a “
Plan
”) has been maintained in
material compliance with its terms and with the requirements of all applicable statutes, rules and regulations including ERISA and the Code; (ii) with respect to each Plan subject to Title IV of ERISA (a) no “reportable event”
(within the meaning of Section 4043(c) of ERISA) has occurred or is reasonably expected to occur, (b) no “accumulated funding deficiency” (within the meaning of Section 302 of ERISA or Section 412 of the Code), whether
or not waived, has occurred or is reasonably expected to occur, (c) the fair market value of the assets under each Plan exceeds the present value of all benefits accrued under such Plan (determined based on those assumptions used to fund such
Plan) and (d) neither the Company or any member of its Controlled Group has incurred, or reasonably expects to incur, any liability under Title IV of ERISA (other than contributions to the Plan or premiums to the PBGC in the ordinary course and
without default) in respect of a Plan (including a “multiemployer plan”, within the meaning of Section 4001(c)(3) of ERISA); and (iii) each Plan that is intended to be qualified under Section 401(a) of the Code is so
qualified and nothing has occurred, whether by action or by failure to act, which would reasonably be expected to cause the loss of such qualification.
(ee) The Company and each of its subsidiaries have filed all federal, state, local and foreign income and franchise tax returns
required to be filed through the date hereof, subject to permitted extensions, and have paid all taxes due thereon, and no tax deficiency has been determined adversely to the Company or any of its subsidiaries, nor does the Company have any
knowledge of any tax deficiencies that could, in the aggregate, reasonably be expected to have a Material Adverse Effect.
(ff) There are no transfer taxes or other similar fees or charges under Federal law or the laws of any state, or any political
subdivision thereof, required to be paid in connection with the execution and delivery of this Agreement or the issuance by the Company or sale by the Company of the Stock.
(gg) Neither the Company nor any of its subsidiaries (i) is in violation of its charter or
by-laws
(or similar organizational documents), (ii) is in default, and no event has occurred that, with notice or lapse of time or both, would constitute such a default, in the due performance or observance of
any term, covenant or condition contained in any
9
indenture, mortgage, deed of trust, loan agreement, license or other agreement or instrument to which it is a party or by which it is bound or to which any of its properties or assets is subject
or (iii) is in violation of any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over it or its property or assets or has failed to obtain any license, permit, certificate, franchise or
other governmental authorization or permit necessary to the ownership of its property or to the conduct of its business, except in the case of clauses (ii) and (iii), to the extent any such conflict, breach, violation or default could not, in
the aggregate, reasonably be expected to have a Material Adverse Effect.
(hh) There is and has been no failure on the part
of the Company and any of the Company’s directors or officers, in their capacities as such, to comply in all material respects with the provisions of the Sarbanes-Oxley Act of 2002 and the rules and regulations promulgated in connection
therewith.
(ii) The Company maintains a system of “internal control over financial reporting” (as defined in
Rule
13a-15(f)
of the Exchange Act) that complies with the requirements of the Exchange Act and have been designed by, or under the supervision of, the Company’s principal executive and principal
financial officers, or persons performing similar functions, to provide reasonable assurances regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with GAAP.
(jj) The interactive data in eXtensible Business Reporting Language incorporated by reference in the Preliminary Prospectus and
the Prospectus fairly presents the information called for in all material respects and is prepared in accordance with the Commission’s rules and guidelines applicable thereto.
(kk) There are no affiliations or associations between any member of the Financial Industry Regulatory Authority (the
“
FINRA
”) and any of the Company’s officers, directors or 5% or greater securityholders.
(ll) The
Company and each of its subsidiaries have such permits, licenses, patents, franchises, certificates of need and other approvals or authorizations of governmental or regulatory authorities (“
Permits
”) as are necessary under
applicable law to own their properties and conduct their businesses in the manner described in the most recent Preliminary Prospectus, except for any of the foregoing that could not, in the aggregate, reasonably be expected to have a Material
Adverse Effect; each of the Company and its subsidiaries has fulfilled and performed all of its obligations with respect to the Permits, and no event has occurred that allows, or after notice or lapse of time would allow, revocation or termination
thereof or results in any other impairment of the rights of the holder or any such Permits, except for any of the foregoing that could not reasonably be expected to have a Material Adverse Effect.
(mm) Each of the Company and the Bank are in compliance in all respects with all applicable laws administered by, and all rules
and regulations of, the Board of Governors of the Federal Reserve System (the “
Federal
Reserve
Board
”), the Federal
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Deposit Insurance Corporation (the “
FDIC
”), the Office of the Comptroller of the Currency (the “
OCC
”) and any other federal or state bank regulatory authorities
with jurisdiction over the Company or the Bank (collectively, the “
Bank
Regulatory
Authorities
”), except as disclosed in the Registration Statement, the Pricing Disclosure Package and the Prospectus or where such
noncompliance would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. The deposit accounts of the Bank are insured up to applicable limits by the FDIC and no proceedings for the termination or
revocation of such insurance are pending or, to the knowledge of the Company, threatened. Except as summarized in the Registration Statement, the Pricing Disclosure Package and the Prospectus, neither the Company nor the Bank is a party to any
written agreement or memorandum of understanding with, or a party to any commitment letter or similar agreement or undertaking to, or is subject to any order or directive by, or is a recipient of any extraordinary supervisory letter from, or has
adopted any board of director resolutions at the request of, any Bank Regulatory Authority, 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 of directors resolutions, in each case that are applicable to the
Company or the Bank specifically, rather than to banks and bank holding companies generally.
(nn) The Company and each of
its subsidiaries own or possess adequate rights to use all material patents, patent applications, trademarks, service marks, trade names, trademark registrations, service mark registrations, copyrights, licenses,
know-how,
software, systems and technology (including trade secrets and other unpatented and/or unpatentable proprietary or confidential information, systems or procedures) necessary for the conduct of their
respective businesses and have no reason to believe that the conduct of their respective businesses will conflict with, and have not received any notice of any claim of conflict with, any such rights of others.
(oo) The Company and its subsidiaries are (i) in compliance with any and all applicable foreign, federal, state and local
laws and regulations relating to the protection of human health and safety, the environment or-hazardous or toxic substances or wastes, pollutants or contaminants (“
Environmental Laws
”), (ii) have received and are in compliance with
all permits, licenses or other approvals required of them under applicable Environmental Laws to conduct their respective businesses and (iii) have not received notice of any actual or potential liability for the investigation or remediation of
any disposal or release of hazardous or toxic substances or wastes, pollutants or contaminants, except where such
non-compliance
with Environmental Laws, failure to receive required permits, licenses or other
approvals, or liability would not have a Material Adverse Effect.
(pp) No subsidiary of the Company is currently
prohibited, directly or indirectly, from paying any dividends to the Company except for such limitations and prohibitions generally applicable to the Bank as described in the most recent Preliminary Prospectus, from making any other distribution on
such subsidiary’s capital stock, from repaying to the Company any loans or advances to such subsidiary from the Company or from transferring any of such subsidiary’s property or assets to the Company or any other subsidiary of the Company,
except as described in the most recent Preliminary Prospectus.
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(qq) Neither the Company nor any of its subsidiaries, nor, to the knowledge of
the Company, any director, officer, agent, employee, affiliate or other person acting on behalf of the Company or any of its subsidiaries is aware of or has taken any action, directly or indirectly, that could result in a violation or a sanction for
violation by such persons of the Foreign Corrupt Practices Act of 1977 or the U.K. Bribery Act 2010, each as may be amended, or similar law of any other relevant jurisdiction, or the rules or regulations thereunder; and the Company and its
subsidiaries have instituted and maintain policies and procedures to ensure compliance therewith. No part of the proceeds of the offering will be used, directly or indirectly, in violation of the Foreign Corrupt Practices Act of 1977 or the U.K.
Bribery Act 2010, each as may be amended, or similar law of any other relevant jurisdiction, or the rules or regulations thereunder.
(rr) The operations of the Company and its subsidiaries are and have been conducted at all times in compliance with applicable
financial recordkeeping and reporting requirements and the money laundering statutes and the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any governmental agency
(collectively, the “
Money Laundering Laws
”) and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of its subsidiaries with respect to the
Money Laundering Laws is pending or, to the knowledge of the Company, threatened.
(ss) Neither the Company nor any of its
subsidiaries nor, to the knowledge of the Company, any director, officer, agent, employee or affiliate of the Company or any of its subsidiaries (i) is, or is controlled or 50% or more owned in the aggregate by or is acting on behalf of one or
more individuals or entities that are currently the subject of any sanctions administered or enforced by the United States (including any administered or enforced by the Office of Foreign Assets Control of the U.S. Department of the Treasury, the
U.S. Department of State or the Bureau of Industry and Security of the U.S. Department of Commerce), the United Nations Security Council, the European Union, a member state of the European Union (including sanctions administered or enforced by Her
Majesty’s Treasury of the United Kingdom) or other relevant sanctions authority (collectively, “
Sanctions
” and such persons, “
Sanctioned
Persons
” and each such person, a “
Sanctioned
Person
”), (ii) is located, organized or resident in a country or territory that is, or whose government is, the subject of Sanctions that broadly prohibit dealings with that country or territory (collectively, “
Sanctioned
Countries
” and each, a “
Sanctioned
Country
”) or (iii) will, directly or indirectly, use the proceeds of this offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint
venture partner or other individual or entity in any manner that would result in a violation of any Sanctions by, or could result in the imposition of Sanctions against, any individual or entity (including any individual or entity participating in
the offering, whether as underwriter, advisor, investor or otherwise). For the past three years, the Company and its subsidiaries have not knowingly engaged in and are not now knowingly engaged in, nor does the Company and its subsidiaries have any
plans to engage in, any dealings or transactions with or for the benefit of any person that at the time of the dealing or transaction is or was a Sanctioned Person or with any Sanctioned Country.
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(tt) The Company has not distributed and, prior to the later to occur of any
Delivery Date and completion of the distribution of the Stock, will not distribute any offering material in connection with the offering and sale of the Stock other than any Preliminary Prospectus, the Prospectus, any Issuer Free Writing Prospectus
to which the Representatives have consented in accordance with Section (i) above or 5(viii).
(uu) The Company has not
taken and will not take, directly or indirectly, any action designed to or that has constituted or that could 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 of the Stock.
(vv) The Company will use its reasonable best efforts to effect, subject to
notice of issuance, the listing of the Stock on the New York Stock Exchange.
Any certificate signed by any officer of the Company and
delivered to the Representatives or counsel for the Underwriters in connection with the offering of the Stock shall be deemed a representation and warranty by the Company, as to matters covered thereby, to each Underwriter.
2.
Purchase of the Stock by the Underwriters
.
On the basis of the representations and warranties contained in, and subject to
the terms and conditions of, this Agreement, the Company agrees to sell 6,000,000 shares of the Stock to the several Underwriters, and each of the Underwriters, severally and not jointly, agrees to purchase the number of shares of the Stock set
forth opposite the Underwriter’s name in
Schedule 1
hereto. Each Underwriter shall be obligated to purchase from the Company that number of shares of the Stock that represents the same proportion of the number of shares of the Stock to
be sold by the Company as the number of shares of the Stock set forth opposite the name of such Underwriter in
Schedule 1
represents of the total number of shares of the Stock to be purchased by all of the Underwriters pursuant to this
Agreement. The respective purchase obligations of the Underwriters with respect to the Stock shall be rounded among the Underwriters to avoid fractional shares, as the Representatives may determine.
The price of the Stock purchased by the Underwriters shall be $24.2125 per share sold to retail investors and $24.6250 per share sold to
institutional investors.
The Company shall not be obligated to deliver any of the Stock to be delivered on the Delivery Date, except upon
payment for all such Stock to be purchased on such Delivery Date as provided herein.
3.
Offering of Stock by the
Underwriters
. Upon authorization by the Representatives of the release of the Stock, the several Underwriters propose to offer the Stock for sale upon the terms and conditions to be set forth in the Prospectus.
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4.
Delivery of and Payment for the Stock
.
Delivery of and payment for the Stock
shall be made at 10:00 A.M., New York City time, on the fifth full business day following the date of this Agreement or at such other date or place as shall be determined by agreement between the Representatives and the Company. This date and
time are sometimes referred to as the “
Delivery Date
.” Delivery of the Stock shall be made to Representatives for the account of each Underwriter against payment by the several Underwriters through the Representatives and of the
respective aggregate purchase price of the Stock being sold by the Company to or upon the order of the Company of the purchase price by wire transfer in immediately available funds to the accounts specified by the Company. Time shall be of the
essence, and delivery at the time and place specified pursuant to this Agreement is a further condition of the obligation of each Underwriter hereunder. The Company shall deliver the Stock through the facilities of The Depository Trust Company
(“
DTC
”) unless the Representatives shall otherwise instruct.
5.
Further Agreements of the Company and the
Underwriters
. (a) The Company agrees:
(i) To prepare the Prospectus in a form approved by the Representatives and to
file such Prospectus pursuant to Rule 424(b) under the Securities Act not later than the Commission’s close of business on the second business day following the execution and delivery of this Agreement; to make no further amendment or any
supplement to the Registration Statement or the Prospectus prior to the last Delivery Date except as provided herein; to advise the Representatives, promptly after it receives notice thereof, of the time when any amendment or supplement to the
Registration Statement or the Prospectus has been filed and to furnish the Representatives with copies thereof; to file promptly all reports and any definitive proxy or information statements required to be filed by the Company with the Commission
pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of the Prospectus and for so long as the delivery of a prospectus is required in connection with the offering or sale of the Stock; to advise the
Representatives, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of the Prospectus or any Issuer Free Writing Prospectus, of the suspension of the
qualification of the Stock for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding or examination for any such purpose, of any notice from the Commission objecting to the use of the form of the Registration
Statement or any post-effective amendment thereto or of any request by the Commission for the amending or supplementing of the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus or for additional information; and, in the
event of the issuance of any stop order or of any order preventing or suspending the use of the Prospectus or any Issuer Free Writing Prospectus or suspending any such qualification, to use promptly its best efforts to obtain its withdrawal;
(ii) To pay the applicable Commission filing fees relating to the Stock within the time required by Rule 456(b)(1) without
regard to the proviso therein;
(iii) To furnish promptly to the Representatives and to counsel for the Underwriters a
signed copy of the Registration Statement as originally filed with the Commission, and each amendment thereto filed with the Commission, including all consents and exhibits filed therewith;
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(iv) To deliver promptly to the Representatives such number of the following
documents as the Representatives shall reasonably request: (A) conformed copies of the Registration Statement as originally filed with the Commission and each amendment thereto (in each case excluding exhibits other than this Agreement and the
computation of per share earnings), (B) each Preliminary Prospectus, the Prospectus and any amended or supplemented Prospectus, (C) each Issuer Free Writing Prospectus and (D) any document incorporated by reference in any Preliminary
Prospectus or the Prospectus; and, if the delivery of a prospectus is required at any time after the date hereof in connection with the offering or sale of the Stock or any other securities relating thereto and if at such time any events shall have
occurred as a result of which the Prospectus as then amended or supplemented 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 when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary to amend or supplement the Prospectus or to file under the Exchange Act any document incorporated by reference in the
Prospectus in order to comply with the Securities Act or the Exchange Act, to notify the Representatives and, upon its request, to file such document and to prepare and furnish without charge to each Underwriter and to any dealer in securities as
many copies as the Representatives may from time to time reasonably request of an amended or supplemented Prospectus that will correct such statement or omission or effect such compliance;
(v) To file promptly with the Commission any amendment or supplement to the Registration Statement or the Prospectus that may,
in the judgment of the Company or the Representatives, be required by the Securities Act or requested by the Commission;
(vi) To file promptly with the New York Stock Exchange a supplemental listing application for the Stock and to use its
reasonable best efforts to effect the listing of the Stock on the New York Stock Exchange;
(vii) Prior to filing with the
Commission any amendment or supplement to the Registration Statement or the Prospectus, any document incorporated by reference in the Prospectus or any amendment to any document incorporated by reference in the Prospectus, to furnish a copy thereof
to the Representatives and counsel for the Underwriters and obtain the consent of the Representatives to the filing;
(viii) Not to make any offer relating to the Stock that would constitute an Issuer Free Writing Prospectus without the prior
written consent of the Representatives.
(ix) To comply with all applicable requirements of Rule 433 with respect to any
Issuer Free Writing Prospectus; 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
15
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 the Representatives and, upon their request, to file such document and to prepare and furnish without charge to each
Underwriter as many copies as the Representatives may from time to time reasonably request of an amended or supplemented Issuer Free Writing Prospectus that will correct such conflict, statement or omission or effect such compliance;
(x) As soon as practicable after the Effective Date and in any event not later than 16 months after the date hereof, to make
generally available to the Company’s security holders and to deliver to the Representatives an earnings statement of the Company and its subsidiaries (which need not be audited) complying with Section 11(a) of the Securities Act and the
Rules and Regulations;
(xi) Promptly from time to time to take such action as the Representatives may reasonably request
to qualify the Stock for offering and sale under the securities laws of Canada and such other jurisdictions as the Representatives may request and to comply with such laws so as to permit the continuance of sales and dealings therein in such
jurisdictions for as long as may be necessary to complete the distribution of the Stock;
provided
that in connection therewith the Company shall not be required to (i) qualify as a foreign corporation in any jurisdiction in which it
would not otherwise be required to so qualify, (ii) file a general consent to service of process in any such jurisdiction or (iii) subject itself to taxation in any jurisdiction in which it would not otherwise be subject;
(xii) During the period commencing on the date hereof and ending on the 60th day after the date hereof, the Company will not,
without the consent of the Representatives, offer for sale, sell, contract to sell, announce the offering or otherwise dispose of any shares of the Underlying Preferred Stock or equity securities similar to or ranking on par with or senior to the
Underlying Preferred Stock, including any guarantee of such securities, or any securities convertible into or exchangeable or representing the right to receive any such securities; and
(xiii) To apply the net proceeds from the sale of the Stock being sold by the Company as set forth in the Prospectus.
(b) Each Underwriter severally agrees that such Underwriter shall not include any “issuer information” (as defined in Rule 433) in
any “free writing prospectus” (as defined in Rule 405) used or referred to by such Underwriter without the prior consent of the Company (any such issuer information with respect to whose use the Company has given its consent,
“
Permitted Issuer Information
”);
provided
that (i) no such consent shall be required with respect to any such issuer information contained in any document filed by the Company with the Commission prior to the use of such
free writing prospectus and (ii) “issuer information,” as used in this Section 5(b), shall not be deemed to include information prepared by or on behalf of such Underwriter on the basis of or derived from issuer information.
16
6.
Expenses
.
The Company agrees, whether or not the transactions contemplated by
this Agreement are consummated or this Agreement is terminated, to pay all costs, expenses, fees and taxes incident to and in connection with (a) the authorization, issuance, sale and delivery of the Stock and any stamp duties or other taxes
payable in that connection, and the preparation and printing of certificates for the Stock; (b) the preparation, printing and filing under the Securities Act of the Registration Statement (including any exhibits thereto), any Preliminary
Prospectus, the Prospectus, any Issuer Free Writing Prospectus and any amendment or supplement thereto; (c) the distribution of the Registration Statement (including any exhibits thereto), any Preliminary Prospectus, the Prospectus, any Issuer
Free Writing Prospectus and any amendment or supplement thereto, or any document incorporated by reference therein, all as provided in this Agreement; (d) the production and distribution of this Agreement and any other related documents in
connection with the offering, purchase, sale and delivery of the Stock; (e) any required review by FINRA of the terms of sale of the Stock (including related fees and expenses of counsel to the Underwriters in an amount that is not greater than
$5,000); (f) the listing of the Stock on the New York Stock Exchange; (g) the qualification of the Stock under the securities laws of the several jurisdictions as provided in Section 5(a)(x) and the preparation, printing and distribution
of a Blue Sky Memorandum (including related reasonable fees and expenses of counsel to the Underwriters); (h) if applicable in the context of the offering, the preparation, printing and distribution of one or more versions of the Preliminary
Prospectus and the Prospectus for distribution in Canada, often in the form of a Canadian “wrapper” (including related fees and expenses of Canadian counsel to the Underwriters); (i) the investor presentations on any “electronic road
show” undertaken in connection with the marketing of the Stock; and (j) all other costs and expenses incident to the performance of the obligations of the Company under this Agreement;
provided
that, except as provided in this
Section 6 and in Section 11, the Underwriters shall pay their own costs and expenses, including the costs and expenses of their counsel, any transfer taxes on the Stock which they may sell and the expenses of advertising any offering of
the Stock made by the Underwriters, and reimburse the Company for their pro rata share of the fees and expenses paid by the Company in connection with the advertising of any offering of the Stock.
7.
Conditions of Underwriters
’
Obligations
. The respective obligations of the Underwriters hereunder are subject to
the accuracy, when made and on each Delivery Date, of the representations and warranties of the Company contained herein, to the performance by the Company of its obligations hereunder, and to each of the following additional terms and conditions:
(a) The Prospectus shall have been timely filed with the Commission in accordance with Section 5(a)(i); the Company
shall have complied with all filing requirements applicable to any Issuer Free Writing Prospectus used or referred to after the date hereof; no stop order suspending the effectiveness of the Registration Statement or preventing or suspending the use
of the Prospectus or any Issuer Free Writing Prospectus shall have been issued and no proceeding or examination for such purpose shall have been initiated or threatened by the Commission; any request of the Commission for inclusion of additional
information in the Registration Statement or the Prospectus or otherwise shall have been complied with; and the Commission shall not have notified the Company of any objection to the use of the form of the Registration Statement.
17
(b) No Underwriter shall have discovered and disclosed to the Company on or prior
to such Delivery Date that the Registration Statement, the Prospectus or the Pricing Disclosure Package, or any amendment or supplement thereto, contains an untrue statement of a fact which, in the opinion of Davis Polk & Wardwell LLP,
counsel for the Underwriters, is material or omits to state a fact which, in the opinion of such counsel, is material and is required to be stated therein or is necessary to make the statements therein not misleading.
(c) All corporate proceedings and other legal matters incident to the authorization, form and validity of this Agreement, the
Stock, the Registration Statement, the Prospectus and any Issuer Free Writing Prospectus, and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be reasonably satisfactory in all material respects to
counsel for the Underwriters, and the Company shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(d) Hogan Lovells US LLP shall have furnished to the Representatives its written opinion, as counsel to the Company, addressed
to the Underwriters and dated such Delivery Date, in form and substance reasonably satisfactory to the Representatives, substantially in the form attached hereto as
Exhibit A
.
(e) The Representatives shall have received from Davis Polk & Wardwell LLP, counsel for the Underwriters, such opinion
or opinions, dated such Delivery Date, with respect to the issuance and sale of the Stock, the Registration Statement, the Prospectus and the Pricing Disclosure Package and other related matters as the Representatives may reasonably require, and the
Company shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(f) At the time of execution of this Agreement, the Representatives shall have received from KPMG LLP a letter, in form and
substance satisfactory to the Representatives, addressed to the Underwriters and dated the date hereof (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the
applicable requirements relating to the qualification of accountants under
Rule 2-01
of Regulation
S-X
of the Commission, and (ii) stating, as of the date
hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the most recent Preliminary Prospectus, as of a date not more than three business days prior to
the date hereof), the conclusions and findings of such firm with respect to the financial information and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public
offerings.
18
(g) With respect to the letter of KPMG LLP referred to in the preceding paragraph
and delivered to the Representatives concurrently with the execution of this Agreement (the “
initial letter
”), the Company shall have furnished to the Representatives a letter (the “
bring-down letter
”) of such
accountants, addressed to the Underwriters and dated such Delivery Date (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the
qualification of accountants under Rule
2-01
of Regulation
S-X
of the Commission, (ii) stating, as of the date of the bring-down letter (or, with respect to matters
involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than three business days prior to the date of the bring-down letter), the conclusions and
findings of such firm with respect to the financial information and other matters covered by the initial letter and (iii) confirming in all material respects the conclusions and findings set forth in the initial letter.
(h) The Company shall have furnished to the Representatives a certificate, dated such Delivery Date, of its Chief Executive
Officer or its Chief Financial Officer stating that:
(i) The representations, warranties and agreements of the Company in
Section 1 are true and correct on and as of such Delivery Date, and the Company has complied with all its agreements contained herein and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to such
Delivery Date;
(ii) No stop order suspending the effectiveness of the Registration Statement has been issued; no
proceedings or examination for that purpose have been instituted or, to the knowledge of such officers, threatened; and the Commission has not notified the Company of any objection to the use of the form of the Registration Statement or any
post-effective amendment thereto; and
(iii) They have carefully examined the Registration Statement, the Prospectus and
the Pricing Disclosure Package, and, in their opinion, (A) (1) the Registration Statement, as of the Effective Date, (2) the Prospectus, as of its date and on the Delivery Date, or (3) the Pricing Disclosure Package, as of the
Applicable Time, did not and do not contain any untrue statement of a material fact and did not and do not omit to state a material fact required to be stated therein or necessary to make the statements therein (except in the case of the
Registration Statement, in the light of the circumstances under which they were made) not misleading, and (B) since the Effective Date, no event has occurred that should have been set forth in a supplement or amendment to the Registration
Statement, the Prospectus or any Issuer Free Writing Prospectus that has not been so set forth;
(i) (i) Neither the
Company nor any of its subsidiaries shall have sustained, since the date of the latest audited financial statements included or incorporated by reference in the most recent Preliminary Prospectus, any loss or interference with its business from
fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree or
19
(ii) since such date there shall not have been any change in the capital stock or long-term debt of the Company or any of its subsidiaries or any change, or any development involving a
prospective change, in or affecting the condition (financial or otherwise), results of operations, stockholders’ equity, properties, management, business or prospects of the Company and its subsidiaries taken as a whole, the effect of which, in
any such case described in clause (i) or (ii), is, in the judgment of the Representatives, so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Stock being delivered on
such Delivery Date on the terms and in the manner contemplated in the Prospectus.
(j) Subsequent to the execution and
delivery of this Agreement (i) no downgrading shall have occurred in the rating accorded the Company’s debt securities or preferred stock by any “nationally recognized statistical rating organization” (as that term is defined by
the Commission for purposes of Section 3(a)(62) of the Exchange Act), and (ii) no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of any of the
Company’s debt securities or preferred stock.
(k) Subsequent to the execution and delivery of this Agreement there
shall not have occurred any of the following: (i) trading in securities generally on the New York Stock Exchange or the NYSE American LLC or in the
over-the-counter
market, or trading in any securities of the Company on any exchange or in the
over-the-counter
market, shall have been suspended or materially limited or the settlement
of such trading generally shall have been materially disrupted or minimum prices shall have been established on any such exchange or such market by the Commission, by such exchange or by any other regulatory body or governmental authority having
jurisdiction, (ii) a banking moratorium shall have been declared by federal or state authorities, (iii) the United States shall have become engaged in hostilities, there shall have been an escalation in hostilities involving the United
States or there shall have been a declaration of a national emergency or war by the United States or (iv) there shall have occurred such a material adverse change in general economic, political or financial conditions, including, without
limitation, as a result of terrorist activities after the date hereof (or the effect of international conditions on the financial markets in the United States shall be such), as to make it, in the judgment of the Representatives, impracticable or
inadvisable to proceed with the public offering or delivery of the Stock being delivered on such Delivery Date on the terms and in the manner contemplated in the Prospectus.
(l) The New York Stock Exchange shall have approved the Stock for listing, subject only to official notice of issuance.
All opinions, letters, evidence and certificates mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance reasonably satisfactory to counsel for the Underwriters.
20
8.
Indemnification and Contribution
.
(a) The Company shall indemnify and hold harmless each Underwriter, its directors, officers and employees and each person, if
any, who controls any Underwriter within the meaning of Section 15 of the Securities Act, from and against any loss, claim, damage or liability, joint or several, or any action in respect thereof (including, but not limited to, any loss, claim,
damage, liability or action relating to purchases and sales of Stock), to which that Underwriter, director, officer, employee or controlling person may become subject, under the Securities Act or otherwise, insofar as such loss, claim, damage,
liability or action arises out of, or is based upon, (i) any untrue statement or alleged untrue statement of a material fact contained in (A) any Preliminary Prospectus, the Registration Statement, the Prospectus or in any amendment or
supplement thereto, (B) any Issuer Free Writing Prospectus or in any amendment or supplement thereto or (C) any Permitted Issuer Information used or referred to in any “free writing prospectus” (as defined in Rule 405) used or
referred to by any Underwriter, (D) any “road show” (as defined in Rule 433) not constituting an Issuer Free Writing Prospectus (a “
Non-Prospectus
Road Show
”) or (E) any
Blue Sky application or other document prepared or executed by the Company (or based upon any written information furnished by the Company for use therein) specifically for the purpose of qualifying any or all of the Stock under the securities laws
of any state or other jurisdiction (any such application, document or information being hereinafter called a “
Blue Sky Application
”) or (ii) the omission or alleged omission to state in any Preliminary Prospectus, the
Registration Statement, the Prospectus, any Issuer Free Writing Prospectus or in any amendment or supplement thereto or in any Permitted Issuer Information, any
Non-Prospectus
Road Show or any Blue Sky
Application, any material fact required to be stated therein or necessary to make the statements therein not misleading, and shall reimburse each Underwriter and each such director, officer, employee or controlling person promptly upon demand for
any legal or other expenses reasonably incurred by that Underwriter, director, officer, employee or controlling person in connection with investigating or defending or preparing to defend against any such loss, claim, damage, liability or action as
such expenses are incurred;
provided
,
however
, that the Company shall not be liable in any such case to the extent that any such loss, claim, damage, liability or action arises out of, or is based upon, any untrue statement or alleged
untrue statement or omission or alleged omission made in any Preliminary Prospectus, the Registration Statement, the Prospectus, any Issuer Free Writing Prospectus or in any such amendment or supplement thereto or in any Permitted Issuer
Information, any
Non-Prospectus
Road Show or any Blue Sky Application, in reliance upon and in conformity with written information concerning such Underwriter furnished to the Company through the
Representatives by or on behalf of any Underwriter specifically for inclusion therein, which information consists solely of the information specified in Section 8(e). The foregoing indemnity agreement is in addition to any liability which the
Company may otherwise have to any Underwriter or to any director, officer, employee or controlling person of that Underwriter.
21
(b) Each Underwriter, severally and not jointly, shall indemnify and hold
harmless the Company, its respective directors, officers and employees, and each person, if any, who controls the Company within the meaning of Section 15 of the Securities Act, from and against any loss, claim, damage or liability, joint or
several, or any action in respect thereof, to which the Company or any such director, officer, employee or controlling person may become subject, under the Securities Act or otherwise, insofar as such loss, claim, damage, liability or action arises
out of, or is based upon, (i) any untrue statement or alleged untrue statement of a material fact contained in any Preliminary Prospectus, the Registration Statement, the Prospectus, any Issuer Free Writing Prospectus or in any amendment or
supplement thereto or in any
Non-Prospectus
Road Show or Blue Sky Application, or (ii) the omission or alleged omission to state in any Preliminary Prospectus, the Registration Statement, the Prospectus,
any Issuer Free Writing Prospectus or in any amendment or supplement thereto or in any
Non-Prospectus
Road Show or Blue Sky Application, any material fact required to be stated therein or necessary to make the
statements therein not misleading, but in each case only to the extent that the untrue statement or alleged untrue statement or omission or alleged omission was made in reliance upon and in conformity with written information concerning such
Underwriter furnished to the Company through the Representatives by or on behalf of that Underwriter specifically for inclusion therein, which information is limited to the information set forth in Section 8(e). The foregoing indemnity
agreement is in addition to any liability that any Underwriter may otherwise have to the Company or any such director, officer, employee or controlling person.
(c) Promptly after receipt by an indemnified party under this Section 8 of notice of any claim or the commencement of any
action, the indemnified party shall, if a claim in respect thereof is to be made against the indemnifying party under this Section 8, notify the indemnifying party in writing of the claim or the commencement of that action;
provided
,
however
, that the failure to notify the indemnifying party shall not relieve it from any liability which it may have under this Section 8 except to the extent it has been materially prejudiced by such failure and,
provided
,
further
, that the failure to notify the indemnifying party shall not relieve it from any liability which it may have to an indemnified party otherwise than under this Section 8. If any such claim or action shall be brought against an
indemnified party, and it shall notify the indemnifying party thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it wishes, jointly with any other similarly notified indemnifying party, to assume the
defense thereof with counsel reasonably satisfactory to the indemnified party. After notice from the indemnifying party to the indemnified party of its election to assume the defense of such claim or action, the indemnifying party shall not be
liable to the indemnified party under this Section 8 for any legal or other expenses subsequently incurred by the indemnified party in connection with the defense thereof other than reasonable costs of investigation;
provided, however
,
that the indemnified party shall have the right to employ counsel to represent jointly the indemnified party and those other indemnified parties and their respective directors, officers, employees and controlling persons who may be subject to
liability arising out of any claim in respect of which indemnity may be sought under this Section 8 if (i) the indemnified party and the indemnifying party shall have so mutually agreed; (ii) the indemnifying party has failed within a
reasonable time to retain counsel reasonably satisfactory to the indemnified party; (iii) the indemnified party and its directors, officers, employees and controlling
22
persons shall have reasonably concluded that there may be legal defenses available to them that are different from or in addition to those available to the indemnifying party; or (iv) the
named parties in any such proceeding (including any impleaded parties) include both the indemnified parties or their respective directors, officers, employees or controlling persons, on the one hand, and the indemnifying party, on the other hand,
and representation of both sets of parties by the same counsel would be inappropriate due to actual or potential differing interests between them, and in any such event the fees and expenses of such separate counsel shall be paid by the indemnifying
party. No indemnifying party shall (i) without the prior written consent of the indemnified parties (which consent shall not be unreasonably withheld), settle or compromise or consent to the entry of any judgment with respect to any pending or
threatened claim, action, suit or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified parties are actual or potential parties to such claim or action) unless such settlement,
compromise or consent includes an unconditional release of each indemnified party from all liability arising out of such claim, action, suit or proceeding and does not include any findings of fact or admissions of fault or culpability as to the
indemnified party, or (ii) be liable for any settlement of any such action effected without its written consent (which consent shall not be unreasonably withheld), but if settled with the consent of the indemnifying party or if there be a final
judgment for the plaintiff in any such action, the indemnifying party agrees to indemnify and hold harmless any indemnified party from and against any loss or liability by reason of such settlement or judgment.
(d) If the indemnification provided for in this Section 8 shall for any reason be unavailable to or insufficient to hold
harmless an indemnified party under Section 8(a), Section 8(b) or Section 8(c) in respect of any loss, claim, damage or liability, or any action in respect thereof, referred to therein, then each indemnifying party shall, in lieu of
indemnifying such indemnified party, contribute to the amount paid or payable by such indemnified party as a result of such loss, claim, damage or liability, or action in respect thereof, (i) in such proportion as shall be appropriate to
reflect the relative benefits received by the Company, on the one hand, and the Underwriters, on the other, from the offering of the Stock 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 the Underwriters, on the other, with respect to the statements or omissions
that resulted in such loss, claim, damage or liability, or action in respect thereof, 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, with
respect to such offering shall be deemed to be in the same proportion as the total net proceeds from the offering of the Stock purchased under this Agreement (before deducting expenses) received by the Company, as set forth in the table on the cover
page of the Prospectus, on the one hand, and the total underwriting discounts and commissions received by the Underwriters with respect to the shares of the Stock purchased under this Agreement, as set forth in the table on the cover page of the
Prospectus, on the other hand. The relative fault shall be determined by reference to whether the untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to
23
information supplied by the Company or the Underwriters, the intent of the parties and their relative 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 contributions pursuant to this Section 8(d) were to be 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 into account the equitable considerations referred to herein. The amount paid or payable by an indemnified party as a result of the loss, claim, damage or liability, or action in
respect thereof, referred to above in this Section 8(d) shall be deemed to include, for purposes of this Section 8(d) 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(d), no Underwriter shall be required to contribute any amount in excess of the amount by which the net proceeds from the sale of the Stock underwritten by it exceeds the
amount of any damages that such Underwriter has otherwise paid or become liable to pay by reason of any untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Underwriters’ obligations to contribute as provided in this Section 8(e) are several
in proportion to their respective underwriting obligations and not joint.
(e) The Underwriters severally confirm and the
Company acknowledges and agrees that the statements regarding delivery of shares by the Underwriters set forth on the cover page of, and the concession and reallowance figures and the paragraph relating to stabilization by the Underwriters appearing
under the caption “Underwriting” in, the most recent Preliminary Prospectus and the Prospectus are correct and constitute the only information concerning such Underwriters furnished in writing to the Company by or on behalf of the
Underwriters specifically for inclusion in any Preliminary Prospectus, the Registration Statement, the Prospectus, any Issuer Free Writing Prospectus or in any amendment or supplement thereto or in any
Non-Prospectus
Road Show.
9.
Defaulting Underwriters
. If, on any Delivery Date, any
Underwriter defaults in the performance of its obligations under this Agreement, the remaining
non-defaulting
Underwriters shall be obligated to purchase the Stock that the defaulting Underwriter agreed but
failed to purchase on such Delivery Date in the respective proportions which the number of shares of the Stock set forth opposite the name of each remaining
non-defaulting
Underwriter in
Schedule 1
hereto bears to the total number of shares of the Stock set forth opposite the names of all the remaining
non-defaulting
Underwriters in
Schedule 1
hereto;
provided, however
, that the remaining
non-defaulting
Underwriters shall not be obligated to purchase any of the Stock on such Delivery Date if the total number of shares of the Stock that the defaulting Underwriter or Underwriters agreed but failed to
purchase on such date exceeds 9.09% of the total number of shares of the Stock to be purchased on such Delivery Date, and any remaining
non-defaulting
Underwriter shall not be obligated to purchase more than
110% of the number of shares of the Stock that it agreed to purchase on such Delivery Date pursuant to the terms of Section 3. If the foregoing maximums are exceeded, the remaining
non-defaulting
Underwriters, or those other underwriters satisfactory to the Representatives who so agree, shall have the right, but shall not
24
be obligated, to purchase, in such proportion as may be agreed upon among them, all the Stock to be purchased on such Delivery Date. If the remaining Underwriters or other underwriters
satisfactory to the Representatives do not elect to purchase the shares that the defaulting Underwriter or Underwriters agreed but failed to purchase on such Delivery Date, this Agreement shall terminate without liability on the part of any
non-defaulting
Underwriter or the Company, except that the Company will continue to be liable for the payment of expenses to the extent set forth in Sections 6 and 11. As used in this Agreement, the term
“Underwriter” includes, for all purposes of this Agreement unless the context requires otherwise, any party not listed in
Schedule 1
hereto that, pursuant to this Section 9, purchases Stock that a defaulting Underwriter agreed
but failed to purchase.
Nothing contained herein shall relieve a defaulting Underwriter of any liability it may have to the Company for
damages caused by its default. If other Underwriters are obligated or agree to purchase the Stock of a defaulting or withdrawing Underwriter, either the Representatives or the Company may postpone the Delivery Date for up to seven full business days
in order to effect any changes that in the opinion of counsel for the Company or counsel for the Underwriters may be necessary in the Registration Statement, the Prospectus or in any other document or arrangement.
10.
Termination.
The obligations of the Underwriters hereunder may be terminated by the Representatives by notice given to and received
by the Company prior to delivery of and payment for the Stock if, prior to that time, any of the events described in Sections 7(i), 7(j) and 7(k) shall have occurred or if the Underwriters shall decline to purchase the Stock for any reason permitted
under this Agreement.
11.
Reimbursement of Underwriters
’
Expenses
.
If (a) the Company shall fail to
tender the Stock for delivery to the Underwriters for any reason other than by reason of a default by the Underwriters or (b) the Underwriters shall decline to purchase the Stock for any reason permitted under this Agreement, the Company will
reimburse the Underwriters for all reasonable
out-of-pocket
expenses (including fees and disbursements of counsel) incurred by the Underwriters in connection with this
Agreement and the proposed purchase of the Stock, and upon demand the Company shall pay the full amount thereof to the Representatives.
12.
Research Analyst Independence.
The Company acknowledges that the Underwriters’ research analysts and research departments are
required to be independent from its respective investment banking divisions and are subject to certain regulations and internal policies, and that such Underwriters’ research analysts may hold views and make statements or investment
recommendations and/or publish research reports with respect to the Company and/or the offering that differ from the views of their respective investment banking divisions. The Company hereby waives and releases, to the fullest extent permitted by
law, any claims that the Company may have against the Underwriters with respect to any conflict of interest that may arise from the fact that the views expressed by its independent research analysts and research departments may be different from or
inconsistent with the views or advice communicated to the Company by such Underwriters’ investment banking divisions. The Company acknowledges that each of the Underwriters is a full service securities firm and as such from time to time,
subject to applicable securities laws, may effect transactions for its own account or the account of its customers and hold long or short positions in debt or equity securities of the companies that may be the subject of the transactions
contemplated by this Agreement.
25
13.
No Fiduciary Duty
. The Company acknowledges and agrees that in connection with this
offering, sale of the Stock or any other services the Underwriters may be deemed to be providing hereunder, notwithstanding any preexisting relationship, advisory or otherwise, between the parties or any oral representations or assurances previously
or subsequently made by the Underwriters: (i) no fiduciary or agency relationship between the Company and any other person, on the one hand, and the Underwriters, on the other, exists; (ii) the Underwriters are not acting as advisors,
expert or otherwise, to the Company, including, without limitation, with respect to the determination of the public offering price of the Stock, and such relationship between the Company, on the one hand, and the Underwriters, on the other, is
entirely and solely commercial, based on arms-length negotiations; (iii) any duties and obligations that the Underwriters may have to the Company shall be limited to those duties and obligations specifically stated herein; and (iv) the
Underwriters and their respective affiliates may have interests that differ from those of the Company. The Company hereby waives any claims that the Company may have against the Underwriters with respect to any breach of fiduciary duty in connection
with this offering.
14.
Notices, Etc.
All statements, requests, notices and agreements hereunder shall be in writing, and:
(a) if to the Underwriters, shall be delivered or sent by mail or facsimile transmission to Merrill Lynch, Pierce,
Fenner & Smith Incorporated, 50 Rockefeller Plaza,
NY1-050-12-01,
New York, New York 10020, Attention: High Grade
Transaction Management/Legal (Fax: (646)
855-5958),
Wells Fargo Securities, LLC, 550 Tryon Street, 5
th
Floor, Charlotte, North Carolina 28202, Attention:
Transaction Management (Fax: (704)
410-0326),
J.P. Morgan Securities LLC, 383 Madison Avenue, New York, New York 10179, Attention: Equity Syndicate Desk (Fax: (212)
622-8358)
and Citigroup Global Markets Inc., 388 Greenwich Street, New York, New York 10013, Attention: General Counsel
(Fax: (646) 291-1469).
(b) if to the Company, shall be delivered or sent by mail or facsimile transmission to the address of the Company set forth in
the Registration Statement, Attention: General Counsel (Fax:
203-755-5539),
with a copy to Daniel Keating and Gregory F. Parisi, Hogan Lovells US LLP, 555 13
th
Street, N.W., Washington, DC 20004 (Fax:
202-637-5910).
Any such statements, requests, notices or agreements shall take effect at the time of receipt thereof. The Company shall be entitled to act and rely upon any
request, consent, notice or agreement given or made on behalf of the Underwriters by Merrill Lynch, Pierce, Fenner & Smith Incorporated, Wells Fargo Securities, LLC, J.P. Morgan Securities LLC or Citigroup Global Markets Inc.
26
15.
Persons Entitled to Benefit of Agreement
. This Agreement shall inure to the benefit of
and be binding upon the Underwriters, the Company, and their respective successors. This Agreement and the terms and provisions hereof are for the sole benefit of only those persons, except that (A) the representations, warranties, indemnities
and agreements of the Company contained in this Agreement shall also be deemed to be for the benefit of the directors, officers and employees of the Underwriters and each person or persons, if any, who control any Underwriter within the meaning of
Section 15 of the Securities Act and (B) the indemnity agreement of the Underwriters contained in Section 8(b) of this Agreement shall be deemed to be for the benefit of the directors of the Company, the officers of the Company who
have signed the Registration Statement and any person controlling the Company within the meaning of Section 15 of the Securities Act. Nothing in this Agreement is intended or shall be construed to give any person, other than the persons
referred to in this Section 15, any legal or equitable right, remedy or claim under or in respect of this Agreement or any provision contained herein.
16.
Survival.
The respective indemnities, representations, warranties and agreements of the Company and the Underwriters contained in
this Agreement or made by or on behalf of them, respectively, pursuant to this Agreement, shall survive the delivery of and payment for the Stock and shall remain in full force and effect, regardless of any investigation made by or on behalf of any
of them or any person controlling any of them.
17.
Definition of the Terms
“
Business Day
”
and
“
Subsidiary
”
. For purposes of this Agreement, (a) “
business day
” means each Monday, Tuesday, Wednesday, Thursday or Friday that is not a day on which banking institutions in New York are generally
authorized or obligated by law or executive order to close and (b) “
subsidiary
” has the meaning set forth in Rule 405.
18.
Governing Law
.
This Agreement shall be governed by and construed in accordance with the laws of the State of New York.
19.
Counterparts.
This Agreement may be executed in one or more counterparts and, if executed in more than one counterpart, the
executed counterparts shall each be deemed to be an original but all such counterparts shall together constitute one and the same instrument.
20.
Headings.
The headings herein are inserted for convenience of reference only and are not intended to be part of, or to affect the
meaning or interpretation of, this Agreement.
27
If the foregoing correctly sets forth the agreement between the Company and the Underwriters,
please indicate your acceptance in the space provided for that purpose below.
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Very truly yours,
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WEBSTER FINANCIAL CORPORATION
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By:
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/s/ Glenn I. MacInnes
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Name: Glenn I. MacInnes
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Title: EVP, Chief Financial Officer
|
Accepted: December 5, 2017
For itself and as Representative
of the Several Underwriters
named
in Schedule 1 hereto
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|
By: MERRILL LYNCH, PIERCE, FENNER & SMITH
|
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INCORPORATED
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By:
|
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/s/ Jacqueline Cleary
|
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Name:
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Jacqueline Cleary
|
|
Title:
|
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Managing Director
|
Accepted: December 5, 2017
For itself and as Representative
of the Several Underwriters
named
in Schedule 1 hereto
|
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|
By: WELLS FARGO SECURITIES, LLC
|
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|
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By:
|
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/s/ Carolyn Hurley
|
|
Name:
|
|
Carolyn Hurley
|
|
Title:
|
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Director
|
Accepted: December 5, 2017
For itself and as Representative
of the Several Underwriters
named
in Schedule 1 hereto
|
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By: J.P. M
ORGAN
SECURITIES
LLC
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By:
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|
Stephen L. Sheiner
|
|
Name:
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Stephen L. Sheiner
|
|
Title:
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Executive Director
|
Accepted: December 5, 2017
For itself and as Representative
of the Several Underwriters
named
in Schedule 1 hereto
|
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By: C
ITIGROUP
G
LOBAL
M
ARKETS
INC
.
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|
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By:
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/s/ Jack D. McSpadden, Jr.
|
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Name:
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Jack D. McSpadden, Jr.
|
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Title:
|
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Managing Director
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SCHEDULE 1
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Underwriters
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Number of Shares of
Stock
|
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|
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
|
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|
1,500,000
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|
Wells Fargo Securities, LLC
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1,500,000
|
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|
J.P. Morgan Securities LLC
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1,200,000
|
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|
Citigroup Global Markets Inc.
|
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900,000
|
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|
Deutsche Bank Securities Inc.
|
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300,000
|
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Keefe, Bruyette & Woods
|
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300,000
|
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Sandler O’Neill & Partners, L.P.
|
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300,000
|
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|
|
|
|
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Total
|
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6,000,000
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SCHEDULE 2
1. Public offering price: $25 per depositary share
2. Number of
firm shares offered: 6,000,000 depositary shares
EXHIBIT A
FORM OF OPINION OF HOGAN LOVELLS US LLP
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(a)
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The Company is validly existing as a corporation and in good standing as of the date of the Good Standing Bringdown under the laws of the State of Delaware. The Company has the corporate power to own, lease and operate
its current properties and to conduct its business as described in the Prospectus. The Company is registered as a financial holding company under the BHCA as of the date of the FRB Certificate.
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(b)
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Webster Bank, National Association (the “Bank”) is validly existing as a national association [as of the date of the OCC Certificate]. The Bank has the national association power to own, lease and operate its
current properties and to conduct its business as described in the Prospectus. To our knowledge, all of the outstanding shares of capital stock of the Bank are owned directly or indirectly of record by the Company.
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(c)
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The Agreement has been duly authorized, executed and delivered by the Company.
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(d)
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The Depositary Shares have been duly authorized and, when issued in accordance with the provisions of the Agreement, will be validly issued, fully paid and
non-assessable.
The
form of certificate evidencing the Depositary Shares complies with the applicable requirements of the Bylaws and Section 158 of the DGCL.
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(e)
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The shares of Underlying Preferred Stock have been duly authorized and, when issued in accordance with the provisions of the Agreement, will be validly issued, fully paid and
non-assessable.
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(f)
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The Certificate of Designation has been duly authorized and executed by the Company and filed with the Secretary of State of the State of Delaware.
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(g)
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The execution, delivery and performance by the Company of the Deposit Agreement have been duly authorized by all necessary corporate action of the Company. The Deposit Agreement (i) has been duly executed and
delivered by the Company and (ii) constitutes a valid and binding obligation of the Company, enforceable against the Company in accordance with its terms.
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(h)
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Based solely upon our review of the information regarding the Company provided through the EDGAR System on the Commission’s website, the Registration Statement became effective under the Securities Act. To our
knowledge, based upon a review of the Stop Orders page of the Commission’s website (http://www.sec.gov/litigation/stoporders.shtml), no stop order suspending the effectiveness of the Registration Statement or suspending or preventing the use of
the Prospectus, including the Preliminary Prospectus, has been issued and no proceedings for that purpose have been instituted or are threatened by the Commission. The required filings of the Prospectus pursuant to Rule 424(b) promulgated pursuant
to the Securities Act have been made in the manner and within the time period required by Rule 424(b).
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(i)
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The Registration Statement and the Prospectus (except for the financial statements and supporting schedules
included therein, as to which we express no opinion) comply as to form in all material respects with the requirements of the Securities Act and the applicable rules and regulations
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A-1
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thereunder. The documents incorporated by reference in the Prospectus pursuant to Item 12 of Form
S-3
under the Securities Act (other than the financial
statements and schedules and financial information and data included therein or omitted therefrom, as to which we express no opinion), at the time they were filed with the Commission, complied as to form in all material respects with the
requirements of the Exchange Act and the applicable rules and regulations thereunder.
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(j)
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The information in the Prospectus under the captions “Description of Series F Preferred Stock” and “Description of Depositary Shares” to the extent that such information constitutes matters of law or
legal conclusions, has been reviewed by us and is accurate in all material respects. The Depositary Shares, the shares of Underlying Preferred Stock and the Deposit Agreement conform as to legal matters in all material respects to the description of
each set forth in the Prospectus.
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(k)
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The execution, delivery and performance on the date hereof by the Company of the Agreement and the Deposit Agreement do not (i) violate the DGCL or the Certificate of Incorporation or Bylaws of the Company,
(ii) violate any provision of Applicable Federal Law or any provision of Applicable State Law, (iii) violate any of the Company Orders or (iv) breach or constitute a default under any of the Contracts (except that we express no
opinion with respect any matters that would require a mathematical calculation or a financial or accounting determination).
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(l)
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No approval or consent of, or registration or filing with, the FRB, the OCC, or the office of the Secretary of State of the State of Delaware is required to be obtained or made by the Company under Applicable Federal
Law or the DGCL
in connection with the execution, delivery and performance on the date hereof by the Company of the Agreement or the Deposit Agreement.
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(m)
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The Company is not an “investment company” within the meaning of the Investment Company Act.
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(n)
|
The information in the Annual Report under the caption “Part I. Item 1. Business – Supervision and Regulation,” to the extent that such information constitutes matters of law or legal conclusions, has
been reviewed by us and is accurate in all material respects.
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(o)
|
The information in the Prospectus under the caption “Certain United States Federal Income Tax Consequences,” to the extent that such information constitutes matters of law or legal conclusions, has been
reviewed by us and is accurate in all material respects.
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(p)
|
To our knowledge, there are no holders of any securities of the Company who, by reason of the execution, delivery or performance of the Agreement on the date hereof by the Company, have the right to require the Company
to register securities held by them under the Securities Act pursuant to the Registration Statement.
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(q)
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To our knowledge, no holder of outstanding shares of common stock of the Company has any statutory preemptive right under the DGCL or, to our knowledge, any contractual right to subscribe for any shares of the
Underlying Preferred Stock.
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A-2
Exhibit 4.1
DEPOSIT AGREEMENT
among
WEBSTER FINANCIAL CORPORATION,
BROADRIDGE CORPORATE ISSUER SOLUTIONS, INC., as Depositary,
and
THE HOLDERS FROM TIME TO
TIME OF
THE DEPOSITARY RECEIPTS DESCRIBED HEREIN
Dated as of December 12, 2017
TABLE OF CONTENTS
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Page
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ARTICLE I
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DEFINED TERMS
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Section 1.1
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Definitions.
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1
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ARTICLE II
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FORM OF RECEIPTS, DEPOSIT OF SERIES F PREFERRED STOCK, EXECUTION AND DELIVERY, TRANSFER, SURRENDER AND REDEMPTION OF RECEIPTS
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Section 2.1
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Form and Transfer of Receipts.
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3
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Section 2.2
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Deposit of Series F Preferred Stock; Execution and Delivery of Receipts in Respect Thereof.
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4
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Section 2.3
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Registration of Transfer of Receipts.
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5
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Section 2.4
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Split-ups
and Combinations of Receipts; Surrender of Receipts and Withdrawal of Series F Preferred Stock.
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6
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Section 2.5
|
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Limitations on Execution and Delivery, Transfer, Surrender and Exchange of Receipts.
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7
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Section 2.6
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Lost Receipts, etc.
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7
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Section 2.7
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Cancellation and Destruction of Surrendered Receipts.
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8
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Section 2.8
|
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Redemption of Series F Preferred Stock.
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8
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Section 2.9
|
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Bank Accounts.
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9
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Section 2.10
|
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Receipts Issuable in Global Registered Form.
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9
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ARTICLE III
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CERTAIN OBLIGATIONS OF HOLDERS OF RECEIPTS AND THE CORPORATION
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Section 3.1
|
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Filing Proofs, Certificates and Other Information.
|
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10
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Section 3.2
|
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Payment of Taxes or Other Governmental Charges.
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11
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Section 3.3
|
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Warranty as to Series F Preferred Stock.
|
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11
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Section 3.4
|
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Warranty as to Depositary Shares.
|
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11
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i
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ARTICLE IV
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THE DEPOSITED SECURITIES; NOTICES
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Section 4.1
|
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Cash Distributions.
|
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11
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Section 4.2
|
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Distributions Other than Cash, Rights, Preferences or Privileges.
|
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12
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Section 4.3
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Subscription Rights, Preferences or Privileges.
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12
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Section 4.4
|
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Notice of Dividends, etc.; Fixing Record Date for Holders of Receipts.
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13
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Section 4.5
|
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Voting Rights.
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14
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Section 4.6
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Changes Affecting Deposited Securities and Reclassifications, Recapitalizations, etc.
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14
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Section 4.7
|
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Delivery of Reports.
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15
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Section 4.8
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Lists of Receipt Holders.
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15
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Section 4.9
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Withholding.
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15
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ARTICLE V
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THE DEPOSITARY, THE DEPOSITARY’S AGENTS, THE REGISTRAR AND THE CORPORATION
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Section 5.1
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Appointment of the Depositary.
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16
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Section 5.2
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Maintenance of Offices, Agencies and Transfer Books by the Depositary; Registrar.
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16
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Section 5.3
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Prevention of or Delay in Performance by the Depositary, the Depositary’s Agents, the Registrar or the Corporation.
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17
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Section 5.4
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Obligations of the Depositary, the Depositary’s Agents, the Registrar, the Transfer Agent and the Corporation.
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17
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Section 5.5
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Resignation and Removal of the Depositary; Appointment of Successor Depositary.
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21
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Section 5.6
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Corporate Notices and Reports.
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22
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Section 5.7
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Indemnification by the Corporation.
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22
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Section 5.8
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Fees, Charges and Expenses.
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22
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ii
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ARTICLE VI
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AMENDMENT AND TERMINATION
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Section 6.1
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Amendment.
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23
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Section 6.2
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Termination.
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24
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ARTICLE VII
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MISCELLANEOUS
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Section 7.1
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Counterparts.
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24
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Section 7.2
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Exclusive Benefit of Parties.
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25
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Section 7.3
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Invalidity of Provisions.
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25
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Section 7.4
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Notices.
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25
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Section 7.5
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Depositary’s Agents.
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26
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Section 7.6
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Appointment of Registrar, Dividend Disbursing Agent and Redemption Agent in Respect of the Series F Preferred
Stock.
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26
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Section 7.7
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Holders of Receipts Are Parties.
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26
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Section 7.8
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Governing Law.
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27
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Section 7.9
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Inspection of Deposit Agreement.
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27
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Section 7.10
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Headings.
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27
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Section 7.11
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Force Majeure.
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27
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Section 7.12
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Further Assurances.
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27
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Section 7.13
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Confidentiality.
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27
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iii
EXHIBITS
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Exhibit A
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Form of Depositary Receipt
|
iv
DEPOSIT AGREEMENT dated as December 12, 2017, among (i) Webster Financial Corporation,
a Delaware corporation, (ii) Broadridge Corporate Issuer Solutions, Inc., a Pennsylvania corporation, and (iii) the Holders from time to time of the Receipts described herein.
WHEREAS, it is desired to provide, as hereinafter set forth in this Deposit Agreement, for the deposit of shares of Series F Preferred Stock
of the Corporation from time to time with the Depositary for the purposes set forth in this Deposit Agreement and for the issuance hereunder of Receipts evidencing Depositary Shares in respect of the Series F Preferred Stock so deposited; and
WHEREAS, the Receipts are to be substantially in the form of
Exhibit A
attached hereto, with appropriate insertions, modifications and
omissions, as hereinafter provided in this Deposit Agreement;
NOW, THEREFORE, in consideration of the premises, the parties hereto agree
as follows:
ARTICLE I
DEFINED TERMS
The following definitions shall for all purposes, unless otherwise indicated,
apply to the respective terms used in this Deposit Agreement:
“
Affiliate
” shall mean, with respect to any Person, any
Person directly or indirectly controlling, controlled by, or under common control with, such other Person. For the purpose of this definition, “controlling,” “controlled by” or “under common control with,” mean the
ownership, direct or indirect, of the power to direct or cause the direction of the operation or management and policies of a Person, whether through the ownership or control of voting interests, by contract or otherwise.
“
Broadridge
” shall mean Broadridge Corporate Issuer Solutions, Inc., a Pennsylvania corporation.
“
Certificate of Designations
” shall mean the Certificate of Designations filed by the Corporation with the Secretary of State
of the State of Delaware creating the Series F Preferred Stock.
“
Corporation
” shall mean Webster Financial Corporation,
a Delaware corporation, and its successors.
“
Deposit Agreement
” shall mean this Deposit Agreement, as amended or
supplemented from time to time in accordance with the terms hereof.
“
Depositary
” shall mean Broadridge, and any
successor Depositary hereunder.
1
“
Depositary Shares
” shall mean the depositary shares, each representing 1/1000
th
of one share of the Series F Preferred Stock, evidenced by a Receipt.
“
Depositary’s Agent
” shall mean an agent appointed by the Depositary pursuant to
Section
7.5.
“
Depositary’s Office
” shall mean the office of the Depositary at which at any particular time its depositary
receipt business shall be administered, which at the date of this Deposit Agreement is located at 44 W. Lancaster Ave, Ardmore, PA 19003.
“
DTC
” shall mean The Depository Trust Company, together with its successors and assigns.
“
Exchange Act
” shall mean the Securities Exchange Act of 1934, as amended.
“
Exchange Event
” shall mean with respect to any Global Registered Receipt:
(1) (A) the Global Receipt Depository which is the Holder of such Global Registered Receipt notifies the Corporation that it is no longer
willing or able to properly discharge its responsibilities under any Letter of Representations or that it is no longer eligible or in good standing under the Exchange Act and (B) the Corporation has not appointed a qualified successor Global
Receipt Depository within 90 calendar days after the Corporation received such notice, or
(2) the Corporation in its sole discretion
notifies the Depositary in writing that the Receipts or portion thereof issued or issuable in the form of one or more Global Registered Receipts shall no longer be represented by such Global Registered Receipt.
“
Global Receipt Depository
” shall mean, with respect to any Receipt issued hereunder, DTC or such other entity designated as
Global Receipt Depository by the Corporation in or pursuant to this Deposit Agreement, which entity must be, to the extent required by any applicable law or regulation, a clearing agency registered under the Exchange Act.
“
Global Registered Receipt
” shall mean a global registered Receipt registered in the name of a nominee of DTC.
“
Letter of Representations
” shall mean any applicable agreement among the Corporation, the Depositary and a Global Receipt
Depository with respect to such Global Receipt Depository’s rights and obligations with respect to any Global Registered Receipt, as the same may be amended, supplemented, restated or otherwise modified from time to time and any successor
agreement thereto.
“
Person
” shall mean any natural person, partnership, joint venture, firm, corporation, limited
liability company, limited liability partnership, unincorporated association, trust or other entity, and shall include any successor (by merger or otherwise) of the foregoing.
“
Receipt
” shall mean one of the depositary receipts issued hereunder, substantially in the form set forth as
Exhibit A
hereto, whether in definitive or temporary form, and evidencing a number of Depositary Shares held of record by a Record Holder.
2
“
Record Holder
” or “
Holder
” as applied to a Receipt shall mean
the Person in whose name such Receipt is registered on the books of the Depositary maintained for such purpose.
“
Redemption
Date
” shall have the meaning set forth in
Section
2.8
.
“
Redemption Price
” shall have
the meaning set forth in the Certificate of Designations.
“
Registrar
” shall mean the Depositary or such other successor
bank or trust company which shall be appointed by the Corporation to register ownership and transfers of Receipts as herein provided. If a successor Registrar shall be so appointed, all references herein to “the books” of or maintained by
the Depository shall be deemed, as applicable, to refer as well to the register maintained by such Registrar for such purpose.
“
Securities Act
” shall mean the Securities Act of 1933, as amended.
“
Series F Preferred Stock
” shall mean the shares of the Corporation’s 5.25%
Non-Cumulative
Perpetual Preferred Stock, Series F, par value $0.01 per share, with a liquidation preference of $25,000 per share.
“
Transfer Agent
” shall mean the Depositary or such other successor bank or trust company which shall be appointed by the
Corporation to transfer the Receipts or the deposited shares of the Series F Preferred Stock, as the case may be, as herein provided.
ARTICLE II
FORM OF
RECEIPTS, DEPOSIT OF SERIES F PREFERRED STOCK, EXECUTION
AND DELIVERY, TRANSFER, SURRENDER AND REDEMPTION OF RECEIPTS
|
Section 2.1
|
Form and Transfer of Receipts.
|
The definitive Receipts shall be substantially in the form set
forth in
Exhibit A
attached to this Deposit Agreement, with appropriate insertions, modifications and omissions, as hereinafter provided (but which do not affect the rights, duties, obligations or immunities of the Depositary as set forth in
this Deposit Agreement) and shall be engraved or otherwise prepared so as to comply with the applicable rules of the New York Stock Exchange, Inc. Pending the preparation of definitive Receipts, the Depositary, upon the order of the Corporation
delivered in compliance with
Section
2.2
, shall be authorized and instructed to, and shall execute and deliver temporary Receipts which may be printed, lithographed, typewritten, mimeographed or otherwise substantially of
the tenor of the definitive Receipts in lieu of which they are issued and with such appropriate insertions, omissions, substitutions and other variations (but which do not affect the rights, duties, obligations or immunities of the Depositary as set
forth in this Deposit Agreement), with the Corporation’s prior approval, as the Persons executing such Receipts may reasonably determine necessary, as evidenced by their execution of such Receipts. If temporary Receipts are issued, the
Corporation and the Depositary will cause definitive Receipts to be prepared without unreasonable delay. After the preparation of definitive Receipts, the temporary Receipts shall be exchangeable for definitive Receipts upon surrender of the
temporary Receipts at an office described in the penultimate paragraph of
Section
2.2
. Upon surrender for cancellation of any one or more temporary Receipts, the Depositary is hereby authorized and
3
instructed to, and shall execute and deliver in exchange therefor definitive Receipts representing the same number of Depositary Shares as represented by the surrendered temporary Receipt or
Receipts registered in the name (and only in the name) of the holder of the temporary receipt; provided, that, the Depositary has been provided with all necessary information that it may request in order to execute and deliver such definitive
Receipt or Receipts. Such exchange shall be made at the Corporation’s expense and without any charge therefor. Until so exchanged, the temporary Receipts shall in all respects be entitled to the same benefits under this Deposit Agreement, and
with respect to the Series F Preferred Stock, as definitive Receipts.
Any Receipt to be executed by the Depositary pursuant to this
Deposit Agreement shall be executed by the manual or facsimile signature of a duly authorized officer of the Depositary. No Receipt shall be entitled to any benefits under this Deposit Agreement or be valid or obligatory for any purpose unless it
shall have been executed manually or by the facsimile signature of a duly authorized officer of the Depositary or, if a Registrar for the Receipts (other than the Depositary) shall have been appointed, by the manual or facsimile signature of a duly
authorized officer of the Depositary and countersigned by the manual or facsimile signature by a duly authorized officer of such Registrar. The Depositary shall record on its books each Receipt so signed and delivered as hereinafter provided.
Receipts shall be in denominations of any number of whole Depositary Shares. All Receipts shall be dated the date of their issuance.
Receipts may be endorsed with or have incorporated in the text thereof such legends or recitals or changes not inconsistent with the
provisions of this Deposit Agreement all as may be (i) reasonably required by the Depositary and approved by the Corporation, (ii) required to comply with any applicable law or any regulation thereunder or with the rules and regulations of
any securities exchange upon which the Series F Preferred Stock, the Depositary Shares or the Receipts may be listed or to conform with any usage with respect thereto, or (iii) to indicate any special limitations or restrictions to which any
particular Receipt is subject (but which do not affect the rights, duties, obligations or immunities of the Depositary as set forth in this Deposit Agreement).
Title to Depositary Shares evidenced by a Receipt which is properly endorsed or accompanied by a properly executed instrument of transfer,
shall be transferable by delivery of such Receipt with the same effect as if such Receipt were a negotiable instrument;
provided
,
however
, that until transfer of any particular Receipt shall be registered on the books of the Depositary
as provided in
Section
2.3
, the Depositary may, notwithstanding any notice to the contrary, treat the Record Holder thereof at such time as the absolute owner thereof for the purpose of determining the Person entitled to
distributions of dividends or other distributions or to any notice provided for in this Deposit Agreement and for all other purposes.
|
Section 2.2
|
Deposit of Series F Preferred Stock; Execution and Delivery of Receipts in Respect Thereof.
|
Subject to the terms and conditions of this Deposit Agreement, the Corporation may from time to time deposit shares of Series F Preferred
Stock under this Deposit Agreement by delivery to the Depositary of a certificate or certificates for such shares of Series F Preferred Stock to be
4
deposited, properly endorsed in the name of the Depositary (or its nominee) or accompanied, if required by the Depositary, by a duly executed instrument of transfer or endorsement including a
guarantee of the signature thereon by a participant in a Medallion Signature Guarantee Program at the guarantee level acceptable to the Transfer Agent (a “
Signature Guarantee
”) together with (i) a form reasonably satisfactory
to the Depositary, (ii) all such certifications as may be reasonably required by the Depositary pursuant to this Deposit Agreement and (iii) an instruction letter from the Corporation authorizing the Depositary to register such shares of
the Series F Preferred Stock in book-entry form, each in form satisfactory to the Depositary, together with all such certifications as may be required by the Depositary pursuant to this Deposit Agreement, and together with a written order of the
Corporation directing the Depositary to execute and deliver to, or upon the written order of, the Person or Persons stated in such order a Receipt or Receipts evidencing in the aggregate the number of Depositary Shares representing such deposited
shares of Series F Preferred Stock.
The shares of Series F Preferred Stock that are deposited pursuant to this Deposit Agreement shall be
held by the Depositary at the Depositary’s Office or at such other place or places as the Depositary shall determine. The Depositary shall not lend any shares of Series F Preferred Stock deposited hereunder.
Upon receipt by the Depositary of a certificate or certificates for shares of Series F Preferred Stock to be deposited in accordance with the
provisions of this
Section
2.2
, together with the other documents required as specified above, and upon recordation of the shares of Series F Preferred Stock on the books of the Corporation (or its duly appointed transfer
agent) in the name of the Depositary (or its nominee), the Depositary, subject to the terms and conditions of this Deposit Agreement, shall execute and deliver to or upon the written order of the Person or Persons named in the order delivered to the
Depositary referred to in the first paragraph of this
Section
2.2
, a Receipt or Receipts evidencing in the aggregate the number of Depositary Shares representing the shares of Series F Preferred Stock so deposited and
registered in such name or names as may be requested by such Person or Persons. The Depositary shall execute and deliver such Receipt or Receipts at the Depositary’s Office or such other offices, if any, as the Depositary may designate.
Delivery at other offices shall be at the risk and expense of the Person requesting such delivery.
|
Section 2.3
|
Registration of Transfer of Receipts.
|
The Corporation hereby appoints the Depositary as the
Registrar and Transfer Agent for the Receipts and the Depositary hereby accepts such appointment, subject to the express terms and conditions of this Deposit Agreement (and no implied terms or conditions) and, as such, the Depositary shall register
on its books from time to time transfers of Receipts upon any surrender thereof by the Holder in person or by duly authorized attorney, properly endorsed or accompanied by a properly executed instrument of transfer or endorsement, including a
Signature Guarantee, together with evidence of the payment of any taxes or charges as may be required by law. Thereupon, the Depositary shall execute a new Receipt or Receipts evidencing the same aggregate number of Depositary Shares as those
evidenced by the Receipt or Receipts surrendered and deliver such new Receipt or Receipts to or upon the order of the Person entitled thereto. With respect to the appointment of the Depositary as Registrar and Transfer Agent in respect of the
Receipts, the Depositary, in its respective capacities under such appointments,
5
shall be entitled to the same rights, indemnities, immunities and benefits as the Depositary hereunder as if explicitly named in each such provision. Any references to the Depositary herein
shall, to the extent applicable, also mean the Depositary as the Transfer Agent and Registrar.
|
Section 2.4
|
Split-ups
and Combinations of Receipts; Surrender of Receipts and Withdrawal of Series F Preferred Stock.
|
Upon surrender of a Receipt or Receipts at the Depositary’s Office or at such other offices as it may designate for the purpose of
effecting a
split-up
or combination of such Receipt or Receipts, and the receipt by the Depositary of all other necessary information and documents, and subject to the terms and conditions of this Deposit
Agreement, the Depositary shall execute a new Receipt or Receipts in the authorized denomination or denominations requested, evidencing the aggregate number of Depositary Shares evidenced by the Receipt or Receipts surrendered, and shall deliver
such new Receipt or Receipts to or upon the order of the Holder of the Receipt or Receipts so surrendered.
Any Holder of a Receipt or
Receipts may withdraw the number of whole shares of Series F Preferred Stock (and all money and other property, if any, represented thereby) by surrendering such Receipt or Receipts at the Depositary’s Office or at such other offices as the
Depositary may designate for such withdrawals;
provided
,
however
that a Holder of a Receipt or Receipts may not withdraw such whole shares of Series F Preferred Stock (or money and other property, if any, represented thereby) which has
previously been called for redemption. After such surrender and upon the receipt of written instructions from the Holder of such Receipt or Receipts, without unreasonable delay (provided that the Corporation has provided the Depositary with all
necessary documentation and a sufficient amount of cash), the Depositary shall deliver to such Holder, or to the Person or Persons designated by such Holder as hereinafter provided, the number of whole shares of Series F Preferred Stock (and all
money and other property, if any), represented by such Receipt or Receipts so surrendered for withdrawal, but Holders of such whole shares of Series F Preferred Stock will not thereafter be entitled to deposit such shares of Series F Preferred Stock
hereunder or to receive a Receipt evidencing Depositary Shares therefor. If a Receipt delivered by the Holder to the Depositary in connection with such withdrawal shall evidence a number of Depositary Shares in excess of the number of Depositary
Shares representing the number of whole shares of Series F Preferred Stock to be withdrawn, the Depositary shall at the same time, in addition to such number of whole shares of Series F Preferred Stock and such money and other property, if any, to
be so withdrawn, deliver to such Holder, or subject to
Section
2.3
upon the written order of such Holder, a new Receipt evidencing such excess number of Depositary Shares. Delivery of such shares of the Series F Preferred
Stock and such money and other property being withdrawn may be made by the delivery of such certificates, documents of title and other instruments as the Depositary may deem appropriate, which, if required by the Depositary, shall be properly
endorsed or accompanied by proper instruments of transfer.
In no event will fractional shares of Series F Preferred Stock (or any cash
payment in lieu thereof) be delivered by the Depositary. Delivery of the Series F Preferred Stock and money and other property, if any, being withdrawn may be made by the delivery of such certificates, documents of title and other instruments as the
Depositary may deem appropriate.
6
If the Series F Preferred Stock and the money and other property, if any, being withdrawn are to
be delivered to a Person or Persons other than the Record Holder of the related Receipt or Receipts being surrendered for withdrawal of such Series F Preferred Stock, such Holder shall execute and deliver to the Depositary a written order so
directing the Depositary, and the Depositary may require that the Receipt or Receipts surrendered by such Holder for withdrawal of such shares of Series F Preferred Stock be properly endorsed in blank or accompanied by a properly executed instrument
of transfer in blank.
Delivery of the Series F Preferred Stock and the money and other property, if any, represented by Receipts
surrendered for withdrawal shall be made by the Depositary at the Depositary’s Office, except that, at the request, risk and expense of the Holder surrendering such Receipt or Receipts and for the account of the Holder thereof, such delivery
may be made at such other place as may be designated by such Holder.
|
Section 2.5
|
Limitations on Execution and Delivery, Transfer, Surrender and Exchange of Receipts.
|
As a
condition precedent to the execution and delivery, registration of transfer,
split-up,
combination, surrender or exchange of any Receipt, the Depositary, any of the Depositary’s Agents or the Corporation
may require (i) payment to it of a sum sufficient for the payment (or, in the event that the Depositary or the Corporation shall have made such payment, the reimbursement to it) of any charges, taxes or expenses payable by the Holder of a
Receipt pursuant to
Section
5.8
(including any such tax or charge with respect to any shares of Series F Preferred Stock being deposited or withdrawn or any charges or expense pursuant to
Section 3.2
and
Section
5.7
), (ii) the production of evidence satisfactory to it as to the identity and genuineness of any signature (which evidence may include a Signature Guarantee) and any other reasonable evidence of authority that may
be required by the Depositary, and (iii) compliance with such additional requirements, if any, as the Depositary or the Corporation may reasonably establish consistent with the provisions of this Deposit Agreement and/or applicable law.
The deposit of shares of Series F Preferred Stock may be refused, the delivery of Receipts against such shares of Series F Preferred Stock may
be suspended, the registration of transfer of Receipts may be refused and the registration of transfer, surrender or exchange of outstanding Receipts may be suspended (i) during any period when the register of stockholders of the Corporation is
closed or (ii) if any such action is deemed necessary or advisable by the Depositary, any of the Depositary’s Agents or the Corporation at any time or from time to time because of any requirement of law or of any government or governmental
body or commission or under any provision of this Deposit Agreement.
|
Section 2.6
|
Lost Receipts, etc.
|
In case any Receipt shall be mutilated, destroyed, lost or stolen, the
Depositary in its discretion may execute and deliver in exchange therefore a Receipt of like form and tenor in exchange and substitution for such mutilated Receipt, or in lieu of and in substitution for such destroyed, lost or stolen Receipt, upon
(i) the filing by the Holder thereof with the Depositary of evidence satisfactory to the Depositary of such destruction or loss or theft of such Receipt, of the authenticity thereof and of his or her ownership thereof and (ii) the Holder
thereof furnishing the
7
Depositary with an affidavit and an indemnity or bond satisfactory to the Depositary. Such Holder shall also comply with such other reasonable regulations and pay such other reasonable charges as
the Depositary may prescribe and as required by
Section 8-405
of the Uniform Commercial Code in effect in the State of New York.
|
Section 2.7
|
Cancellation and Destruction of Surrendered Receipts.
|
All Receipts surrendered to the
Depositary or any Depositary’s Agent shall be cancelled by the Depositary. Except as prohibited by applicable law or regulation, the Depositary is authorized and directed to destroy all Receipts so cancelled.
|
Section 2.8
|
Redemption of Series F Preferred Stock.
|
Whenever the Corporation shall be permitted and shall
elect to redeem shares of Series F Preferred Stock in accordance with the terms of the Certificate of Designations, it shall (unless otherwise agreed to in writing with the Depositary) give or cause to be given to the Depositary, not less than 30
days and not more than 60 days prior to the Redemption Date (as defined below), notice of the date of such proposed redemption of Series F Preferred Stock and of the number of such shares held by the Depositary to be so redeemed and the applicable
Redemption Price, which notice shall be accompanied by a certificate from the Corporation stating that such redemption of shares of Series F Preferred Stock is in accordance with the provisions of the Certificate of Designations. On the applicable
Redemption Date, provided that the Corporation shall then have paid or caused to be paid in full to the Depositary the Redemption Price of the Series F Preferred Stock to be redeemed, the Depositary shall redeem the number of Depositary Shares
representing such shares of Series F Preferred Stock. The Depositary shall, if requested in writing and provided with all necessary information and documents, mail notice of the Corporation’s redemption of shares of Series F Preferred Stock and
the proposed simultaneous redemption of the number of Depositary Shares representing such shares of the Series F Preferred Stock to be redeemed by first-class mail, postage prepaid, at the respective last addresses as they appear on the records of
the Depositary or transmit by such other method approved by the Depositary (in its reasonable discretion), in either case not less than 30 days and not more than 60 days prior to the date fixed for redemption of such shares of Series F Preferred
Stock and Depositary Shares (the “
Redemption Date
”), to the Record Holders of the Receipts evidencing the Depositary Shares to be so redeemed at the addresses of such Holders as they appear on the records of the Depositary; but
neither failure to mail or transmit any such notice of redemption of Depositary Shares to one or more such Holders nor any defect in any notice of redemption of Depositary Shares to one or more such Holders shall affect the sufficiency of the
proceedings for redemption as to the other Holders. Each such notice shall be prepared by the Corporation and shall state: (i) the Redemption Date; (ii) the number of Depositary Shares to be redeemed and, if less than all the Depositary
Shares held by any such Holder are to be redeemed, the number of such Depositary Shares held by such Holder to be so redeemed; (iii) the applicable Redemption Price; (iv) the place or places where Receipts evidencing such Depositary Shares
are to be surrendered for payment of the redemption price; and (v) that dividends in respect of the Series F Preferred Stock represented by such Depositary Shares to be redeemed will cease to accrue on such Redemption Date. In case less than
all the outstanding Depositary Shares are to be redeemed, the Depositary Shares to be so redeemed shall be selected either pro rata or by lot or in such other manner as the Corporation may determine to be fair and equitable (which determination the
Corporation will promptly notify the Depositary in writing).
8
Notice having been mailed or transmitted by the Depositary as aforesaid, from and after the
Redemption Date (unless the Corporation shall have failed to provide the funds necessary to redeem the Series F Preferred Stock evidenced by the Depositary Shares called for redemption) (i) all dividends on the shares of Series F Preferred
Stock so called for Redemption shall cease to accrue from and after such date, (ii) the Depositary Shares being redeemed from such proceeds shall be deemed no longer to be outstanding, (iii) all rights of the Holders of Receipts evidencing
such Depositary Shares (except the right to receive the applicable Redemption Price) shall, to the extent of such Depositary Shares, cease and terminate, and (iv) upon surrender in accordance with such redemption notice of the Receipts
evidencing any such Depositary Shares called for redemption (properly endorsed or assigned for transfer, if the Depositary or applicable law shall so require), such Depositary Shares shall be redeemed by the Depositary at a redemption price per
Depositary Share equal to 1/1000
th
of the redemption price per share of Series F Preferred Stock so redeemed plus all money and other property, if any, represented by such Depositary Shares,
including all amounts paid by the Corporation with respect to dividends which on the Redemption Date have been declared on the shares of the Series F Preferred Stock to be so redeemed and have not therefore been paid.
If fewer than all of the Depositary Shares evidenced by a Receipt are called for redemption, the Depositary will deliver to the Holder of such
Receipt upon its surrender to the Depositary, together with the applicable Redemption Price for all of the Depositary Shares redeemed, a new Receipt evidencing the Depositary Shares evidenced by such prior Receipt and not called for redemption.
|
Section 2.9
|
Bank Accounts.
|
The Corporation acknowledges that the bank accounts maintained by the
Depositary in connection with the services provided under this Deposit Agreement will be in the Depositary’s name and that the Depositary may receive investment earnings in connection with the investment at the Depositary’s risk and for
its benefit of funds held in those accounts from time to time. Neither the Corporation nor the Holders will receive interest on any deposits.
|
Section 2.10
|
Receipts Issuable in Global Registered Form.
|
If the Corporation shall determine in a writing
delivered to the Depositary that the Receipts are to be issued in whole or in part in the form of one or more Global Registered Receipts, then the Depositary shall, if instructed and provided with all necessary information, in accordance with the
other provisions of this Deposit Agreement, execute and deliver one or more Global Registered Receipts evidencing the Receipts of such series which (i) shall represent, and shall be denominated in an amount equal to the aggregate principal
amount of, the Receipts to be represented by such Global Registered Receipt or Receipts and (ii) shall be registered in the name of the Global Receipt Depository therefor or its nominee.
Notwithstanding any other provision of this Deposit Agreement to the contrary, unless otherwise provided in the Global Registered Receipt, a
Global Registered Receipt may only be transferred in whole and only by the applicable Global Receipt Depository for such Global
9
Registered Receipt to a nominee of such Global Receipt Depository, or by a nominee of such Global Receipt Depository to such Global Receipt Depository or another nominee of such Global Receipt
Depository, or by such Global Receipt Depository or any such nominee to a successor Global Receipt Depository for such Global Registered Receipt selected or approved by the Corporation or to a nominee of such successor Global Receipt Depository.
Except as provided below, owners solely of beneficial interests in a Global Registered Receipt shall not be entitled to receive physical delivery of the Receipts represented by such Global Registered Receipt. Neither any such beneficial owner nor
any direct or indirect participant of a Global Receipt Depository shall have any rights under this Deposit Agreement with respect to any Global Registered Receipt held on their behalf by a Global Receipt Depository and such Global Receipt Depository
may be treated by the Corporation, the Depositary and any director, officer, employee or agent of the Corporation or the Depositary as the Holder of such Global Registered Receipt for all purposes whatsoever. Unless and until definitive Receipts are
delivered to the owners of the beneficial interests in a Global Registered Receipt, (1) the applicable Global Receipt Depository will make book-entry transfers among its participants and receive and transmit all payments and distributions in
respect of the Global Registered Receipts to such participants, in each case, in accordance with its applicable procedures and arrangements, and (2) whenever any notice, payment or other communication to the holders of Global Registered
Receipts is required under this Deposit Agreement, the Corporation and the Depositary shall give all such notices, payments and communications specified herein to be given to such holders to the applicable Global Receipt Depository.
If an Exchange Event has occurred with respect to any Global Registered Receipt, then, in any such event, the Depositary shall, upon receipt
of a written order from the Corporation authorizing and directing the Depositary to execute and deliver individual definitive registered Receipts in exchange for such Global Registered Receipt, shall execute and deliver, individual definitive
registered Receipts, in authorized denominations and of like tenor and terms in an aggregate principal amount equal to the principal amount of the Global Registered Receipt in exchange for such Global Registered Receipt. The Depositary shall have no
duties, obligations or liability under this paragraph unless and until such order has been received by the Depositary.
Definitive
registered Receipts issued in exchange for a Global Registered Receipt pursuant to this
Section
2.10
shall be registered in such names and in such authorized denominations as the Global Receipt Depository for such Global
Registered Receipt, pursuant to instructions from its participants, shall instruct the Depositary in writing. The Depositary shall deliver such Receipts to the Persons in whose names such Receipts are so registered.
Notwithstanding anything to the contrary in this Deposit Agreement, should the Corporation determine that the Receipts should be issued as a
Global Registered Receipt, the parties hereto shall comply with the terms of any Letter of Representations.
10
ARTICLE III
CERTAIN OBLIGATIONS OF HOLDERS OF RECEIPTS AND THE CORPORATION
|
Section 3.1
|
Filing Proofs, Certificates and Other Information.
|
Any Holder of a Receipt may be required
from time to time to file such proof of residence, or other matters or other information, to execute such certificates and to make such representations and warranties as the Depositary or the Corporation may reasonably deem necessary or proper. The
Depositary or the Corporation may withhold the delivery, or delay the registration of transfer or redemption, of any Receipt or the withdrawal of shares of Series F Preferred Stock represented by the Depositary Shares and evidenced by a Receipt or
withhold or delay the distribution of any dividend or other distribution or the sale of any rights or of the proceeds thereof until such proof or other information is filed or such certificates are executed or such representations and warranties are
made.
|
Section 3.2
|
Payment of Taxes or Other Governmental Charges.
|
Holders of Receipts shall be obligated to
make payments to the Depositary, of certain charges and expenses, as provided in
Section
5.8
. Registration of transfer of any Receipt or any withdrawal of shares of Series F Preferred Stock and all money or other property,
if any, represented by the Depositary Shares evidenced by such Receipt may be refused until any such payment due is made, and any dividends, interest payments or other distributions may be withheld or any part of or all the Series F Preferred Stock
or other property represented by the Depositary Shares evidenced by such Receipt and not theretofore sold may be sold for the account of the Holder thereof (after attempting by reasonable means to notify such Holder prior to such sale), and such
dividends, interest payments or other distributions or the proceeds of any such sale may be applied to any payment of such charges or expenses, with the Holder of such Receipt remaining liable for any deficiency.
|
Section 3.3
|
Warranty as to Series F Preferred Stock.
|
The Corporation hereby represents and warrants that
the Series F Preferred Stock, when issued, will be duly authorized, validly issued, fully paid and
non-assessable.
Such representation and warranty shall survive the deposit of the Series F Preferred Stock and
the issuance of the related Receipts.
|
Section 3.4
|
Warranty as to Depositary Shares.
|
The Corporation hereby represents and warrants that the
Receipts, when issued, will represent legal and valid interests in the Series F Preferred Stock. Such representation and warranty shall survive the deposit of the Series F Preferred Stock and the related issuance of the Receipts.
ARTICLE IV
THE
DEPOSITED SECURITIES; NOTICES
|
Section 4.1
|
Cash Distributions.
|
Whenever the Depositary shall receive any cash dividend or other cash
distribution on the Series F Preferred Stock, the Depositary shall, subject to
Section
3.1
and
Section
3.2
, and if received, upon the written instructions from the Corporation, distribute to Record
Holders of Receipts on the record date fixed pursuant to
Section
4.4
such amounts of such dividend or
11
distribution as are, as nearly as practicable, in proportion to the respective numbers of Depositary Shares evidenced by the Receipts held by such Holders;
provided
,
however
, that
in case the Corporation or the Depositary shall be required to withhold and shall withhold from any cash dividend or other cash distribution in respect of the Series F Preferred Stock an amount on account of taxes, the amount made available for
distribution or distributed in respect of Depositary Shares shall be reduced accordingly. The Depositary shall distribute or make available for distribution, as the case may be and, if received, in accordance with the Corporation’s written
instructions, only such amount, however, as can be distributed without attributing to any Holder of Receipts a fraction of one cent, and any balance not so distributable shall be held by the Depositary (without liability for interest thereon), and
shall be added to and be treated as part of the next sum received by the Depositary for distribution to Record Holders of Receipts then outstanding. Each Holder of a Receipt shall provide the Depositary with its certified tax identification number
on a properly completed Form W–8 or W–9, as may be applicable. Each Holder of a Receipt acknowledges that, in the event of
non-compliance
with the preceding sentence, the Internal Revenue Code of
1986, as amended, may require withholding by the Depositary of a portion of any of the distributions to be made hereunder.
|
Section 4.2
|
Distributions Other than Cash, Rights, Preferences or Privileges.
|
Whenever the Depositary
shall receive any distribution other than cash, rights, preferences or privileges upon the Series F Preferred Stock, the Depositary shall, subject to
Section
3.1
and
Section
3.2
, distribute to
Record Holders of Receipts on the record date fixed pursuant to
Section
4.4
such amounts of the securities or property received by it as the Corporation shall reasonably direct. If in the opinion of the Corporation, in
consultation with the Depositary, such distribution cannot be made proportionately among such Record Holders, or if for any other reason (including any requirement that the Corporation or the Depositary withhold an amount on account of taxes or
charges) such distribution shall not be feasible, the Corporation, in its discretion, may adopt such method as it deems equitable and practicable for the purpose of effecting such distribution, including the sale (at public or private sale) of the
securities or property thus received, or any part thereof, in a commercially reasonable manner. The net proceeds of any such sale shall, subject to
Section
3.1
and
Section
3.2
, be distributed or
made available for distribution, as the case may be, by the Depositary to Record Holders of Receipts as provided by
Section
4.1
in the case of a distribution received in cash. The Corporation shall not make any distribution
of securities or property (other than cash) to the Depositary and the Depositary shall not make any distribution of securities or property (other than cash) to the Holders of Receipts unless such securities or property have been registered under the
Securities Act or the Corporation shall have provided an opinion of counsel as set forth in
Section
2.1
above, dated as of or prior to the date of such distribution, stating that such securities or property do not need to
be registered in connection with such distributions.
|
Section 4.3
|
Subscription Rights, Preferences or Privileges.
|
If the Corporation shall at any time offer or
cause to be offered to the Persons in whose names the Series F Preferred Stock is recorded on the books of the Corporation any rights, preferences or privileges to subscribe for or to purchase any securities or any rights, preferences or privileges
of any other nature, such rights, preferences or privileges shall in each such instance be communicated to the Depositary and made available by the Depositary to the Record Holders
12
of Receipts in such manner as the Corporation shall reasonably direct;
provided
,
however
, that (i) if at the time of issue or offer of any such rights, preferences or
privileges the Corporation determines that it is not lawful or (after consultation with the Depositary) not feasible to make such rights, preferences or privileges available to Holders of Receipts by the issue of warrants or otherwise, or
(ii) if and to the extent so instructed by Holders of Receipts who do not desire to exercise such rights, preferences or privileges, then the Corporation, in its discretion (with the acknowledgement of the Depositary, in any case where the
Corporation has determined that it is not feasible to make such rights, preferences or privileges available), may, if applicable laws or the terms of such rights, preferences or privileges permit such transfer, sell such rights, preferences or
privileges at public or private sale, at such place or places and upon such terms as it may deem proper. The net proceeds of any such sale shall be delivered to the Depositary and, if received, upon the written instructions of the Corporation and,
subject to
Section
3.1
and
Section
3.2
, be distributed by the Depositary to the Record Holders of Receipts entitled thereto as provided by
Section
4.1
in the case of a
distribution received in cash.
The Corporation shall notify the Depositary whether registration under the Securities Act of the
securities to which any rights, preferences or privileges relate is required in order for Holders of Receipts to be offered or sold the securities to which such rights, preferences or privileges relate, and the Corporation agrees with the Depositary
that it will file promptly a registration statement pursuant to the Securities Act with respect to such rights, preferences or privileges and securities and use its best efforts and take all steps available to it to cause such registration statement
to become effective sufficiently in advance of the expiration of such rights, preferences or privileges in compliance with the Securities Act to enable such Holders to exercise such rights, preferences or privileges. In no event shall the Depositary
make available to the Holders of Receipts any right, preference or privilege to subscribe for or to purchase any securities unless and until such registration statement shall have become effective or the Corporation shall have provided to the
Depositary an opinion of counsel stating that the offering and sale of such securities to the Holders are exempt from registration under the provisions of the Securities Act.
The Corporation shall notify the Depositary whether any other action under the laws of any jurisdiction or any governmental or administrative
authorization, consent or permit is required in order for such rights, preferences or privileges to be made available to Holders of Receipts, and the Corporation agrees with the Depositary that the Corporation will use its reasonable best efforts to
take such action or obtain such authorization, consent or permit sufficiently in advance of the expiration of such rights, preferences or privileges to enable such Holders to exercise such rights, preferences or privileges.
|
Section 4.4
|
Notice of Dividends, etc.; Fixing Record Date for Holders of Receipts.
|
Whenever any cash
dividend or other cash distribution shall become payable or any distribution other than cash shall be made, or if rights, preferences or privileges shall at any time be offered, with respect to the Series F Preferred Stock, or whenever the
Depositary shall receive notice of any meeting at which holders of the Series F Preferred Stock are entitled to vote or of which holders of the Series F Preferred Stock are entitled to notice, or whenever the Depositary and the Corporation shall
decide it is appropriate, the Depositary shall in each such instance fix a record date (which shall be the same date as the record date fixed by the Corporation with
13
respect to or otherwise in accordance with the terms of the Series F Preferred Stock) for the determination of the Holders of Receipts who shall be entitled to receive such dividend,
distribution, rights, preferences or privileges or the net proceeds of the sale thereof, or to give instructions for the exercise of voting rights at any such meeting, or who shall be entitled to notice of such meeting or for any other appropriate
reasons.
|
Section 4.5
|
Voting Rights.
|
Subject to the Certificate of Designations, upon receipt of notice from the
Corporation of any meeting at which the holders of the Series F Preferred Stock are entitled to vote, the Depositary shall, if requested in writing and provided with all necessary information and documents, as soon as practicable thereafter, mail or
transmit by such other method approved by the Depositary, in its reasonable discretion, to the Record Holders of Receipts, as determined on the record date set forth in
Section
4.4
, a notice prepared by the Corporation
which shall contain (i) such information as is contained in such notice of meeting, (ii) a statement that the Holders of Receipts at the close of business on a specified record date fixed pursuant to
Section
4.4
may, subject to any applicable restrictions, instruct the Depositary as to the exercise of the voting rights pertaining to the shares of Series F Preferred Stock represented by their respective Depositary Shares (including an express indication that
instructions may be given to the Depositary to give a discretionary proxy to a Person designated by the Corporation), and (iii) a brief statement as to the manner in which such instructions may be given. Upon the written request of the Holders
of Receipts on the relevant record date, the Depositary shall endeavor insofar as practicable to vote or cause to be voted, in accordance with the instructions set forth in such requests, the maximum number of whole shares of Series F Preferred
Stock represented by the Depositary Shares evidenced by all Receipts as to which any particular voting instructions are received. The Corporation hereby agrees to take all reasonable action which may be deemed necessary by the Depositary in order to
enable the Depositary to vote such Series F Preferred Stock or cause such Series F Preferred Stock to be voted. In the absence of specific instructions from the Holder of a Receipt, the Depositary will not vote (but, at its discretion, may appear at
any meeting with respect to such Series F Preferred Stock unless directed to the contrary by the Holders of all the Receipts) to the extent of the Series F Preferred Stock represented by the Depositary Shares evidenced by such Receipt. The
Depositary shall not be required to exercise any discretion in voting any shares of the Series F Preferred Stock represented by the Depositary Shares evidenced by such Receipt.
|
Section 4.6
|
Changes Affecting Deposited Securities and Reclassifications, Recapitalizations, etc.
|
Upon
any change in par or stated value,
split-up,
combination or any other reclassification of the Series F Preferred Stock, subject to the Certificate of Designations, or upon any recapitalization, reorganization,
merger or consolidation affecting the Corporation or to which it is a party, the Depositary shall, upon the written instructions of the Corporation setting forth any adjustment, (i) make such adjustments as are certified by the Corporation in
the fraction of an interest represented by one Depositary Share in one share of Series F Preferred Stock and in the ratio of the redemption price per Depositary Share to the redemption price per share of Series F Preferred Stock, in each case as may
be necessary fully to reflect the effects of such change in par or stated value,
split-up,
combination or other reclassification of the Series F
14
Preferred Stock, or of such recapitalization, reorganization, merger or consolidation, as stated in such instructions and (ii) treat any securities or property (including cash) which shall
be received by the Depositary in exchange for or upon conversion of or in respect of the Series F Preferred Stock as new deposited securities or property so received in exchange for or upon conversion or in respect of such Series F Preferred Stock.
In any such case the Depositary shall, upon receipt of instructions of the Corporation, execute and deliver additional Receipts or may call for the surrender of all outstanding Receipts to be exchanged for new Receipts specifically describing such
new deposited securities or property. Anything to the contrary herein notwithstanding, Holders of Receipts shall have the right from and after the effective date of any such change in par or stated value,
split-up,
combination or other reclassification of the Series F Preferred Stock or any such recapitalization, reorganization, merger or consolidation to surrender such Receipts to the Depositary with
instructions to convert, exchange or surrender the Series F Preferred Stock represented thereby only into or for, as the case may be, the kind and amount of shares and other securities and property and cash into which the Series F Preferred Stock
represented by such Receipts might have been converted or for which such Series F Preferred Stock might have been exchanged or surrendered immediately prior to the effective date of such transaction.
|
Section 4.7
|
Delivery of Reports.
|
The Depositary shall make available for inspection by Holders of
Receipts at the Depositary’s Office and at such other places as it may from time to time deem advisable during normal business hours any reports and communications received from the Corporation, which are received by the Depositary and which
the Corporation is required to furnish to the holders of the Series F Preferred Stock. In addition, the Depositary shall transmit, upon the request of the Corporation, certain notices and reports to the Holders of Receipts as provided in
Section
5.6
.
|
Section 4.8
|
Lists of Receipt Holders.
|
Reasonably promptly upon request from time to time by the
Corporation, at the sole expense of the Corporation, the Registrar shall furnish to it a list, as of the most recent practicable date, of the names, addresses and holdings of Depositary Shares of all registered Holders of Receipts
Notwithstanding any other provision of this Deposit Agreement, in the event that
the Depositary determines that any distribution in property is subject to any tax or other charge that the Depositary is obligated by law to withhold, the Depositary may dispose of, by public or private sale, all or a portion of such property in
such amounts and in such manner as the Depositary deems necessary and practicable to pay such taxes or charges, and the Depositary shall distribute the net proceeds of any such sale or the balance of any such property after deduction of such taxes
or charges to the Holders of Receipts entitled thereto in proportion to the number of Depositary Shares held by them, respectively; provided, however, that in the event the Depositary determines that such distribution of property is subject to
withholding tax only with respect to some but not all Holders of Receipts, the Depositary will use its best efforts (i) to sell only that portion of such property distributable to such holders that is required to generate sufficient proceeds to
pay such withholding tax and (ii) to effect any such sale in such a manner so as to avoid affecting the rights of any other Holders of Receipts to receive such distribution in property.
15
ARTICLE V
THE DEPOSITARY, THE DEPOSITARY’S AGENTS, THE REGISTRAR AND THE CORPORATION
|
Section 5.1
|
Appointment of the Depositary.
|
The Corporation hereby appoints Broadridge to act as
Depositary in accordance with the express terms and conditions hereof (and no implied terms or conditions), and Broadridge accepts this appointment. Depositary is engaged in an independent business and will perform its obligations under this Deposit
Agreement as an agent of the Corporation.
|
Section 5.2
|
Maintenance of Offices, Agencies and Transfer Books by the Depositary; Registrar.
|
Upon
execution of this Deposit Agreement, the Depositary shall maintain at the Depositary’s Office, facilities for the execution and delivery, registration and registration of transfer, surrender and exchange of Receipts, and at the offices of the
Depositary’s Agents, if any, facilities for the delivery, registration of transfer, surrender and exchange of Receipts, all in accordance with the provisions of this Deposit Agreement.
The Depositary shall keep books at the Depositary’s Office for the registration and registration of transfer of Receipts. Upon direction
from the Corporation and with reasonable notice to the Depositary, the Registrar shall open its books for inspection by the Record Holders of Receipts;
provided
that any such Record Holder requesting to exercise such right shall certify to
the Depositary that such inspection shall be for a proper purpose reasonably related to such Person’s interest as an owner of Depositary Shares evidenced by the Receipts.
The Depositary or Registrar may close such books, at any time or from time to time, when deemed necessary or advisable by the Depositary, the
Registrar, any Depositary’s Agent or the Corporation because of any requirement of law or of any government, governmental body or commission, stock exchange or any applicable self-regulatory body.
If the Receipts or the Depositary Shares evidenced thereby or the Series F Preferred Stock represented by such Depositary Shares shall be
listed on one or more national securities exchanges, the Depositary may, with the written approval of the Corporation, appoint a Registrar (acceptable to the Corporation) for registration of the Receipts or Depositary Shares in accordance with any
requirements of such exchange. Such Registrar (which may be the Depositary if so permitted by the requirements of any such exchange) may be removed and a substitute registrar appointed by the Depositary upon the request or with the approval of the
Corporation. If the Receipts, Depositary Shares or the Series F Preferred Stock are listed on one or more other securities exchanges, the Depositary will, at the written request and expense of the Corporation, arrange such facilities for the
delivery, registration, registration of transfer, surrender and exchange of such Receipts, Depositary Shares or Series F Preferred Stock as may be required by law or applicable securities exchange regulation.
16
|
Section 5.3
|
Prevention of or Delay in Performance by the Depositary, the Depositary’s Agents, the Registrar or the Corporation.
|
Neither the Depositary nor any Depositary’s Agent nor any Registrar nor the Corporation, as the case may be, shall incur any liability to
any Holder of Receipt if by reason of any provision of any present or future law, or regulation thereunder, of the United States of America or of any other governmental authority or, in the case of the Depositary, the Depositary’s Agent or the
Registrar, as the case may be, by reason of any provision, present or future, of the Corporation’s Amended and Restated Certificate of Incorporation (including the Certificate of Designations) or by reason of any act of God or war or other
circumstance beyond the control of the relevant party, the Depositary, the Depositary’s Agent, the Registrar or the Corporation, as the case may be, shall be prevented or forbidden from, or subjected to any penalty on account of, doing or
performing any act or thing which the terms of this Deposit Agreement provide shall be done or performed; nor shall the Depositary, any Depositary’s Agent, any Registrar or the Corporation, as the case may be, incur liability to any Holder of a
Receipt (i) by reason of any nonperformance or delay, caused as aforesaid, in the performance of any act or thing which the terms of this Deposit Agreement shall provide shall or may be done or performed, or (ii) by reason of any exercise
of, or failure to exercise, any discretion provided for in this Deposit Agreement except as otherwise explicitly set forth in this Deposit Agreement.
|
Section 5.4
|
Obligations of the Depositary, the Depositary’s Agents, the Registrar, the Transfer Agent and the Corporation.
|
Neither the Depositary nor any Depositary’s Agent nor any Registrar, any Transfer Agent nor the Corporation, as the case may be, assumes
any obligation or shall be subject to any liability under this Deposit Agreement to Holders of Receipts or to any other Person (other than to the Corporation in accordance with the last sentence of this paragraph below) other than for its gross
negligence, willful misconduct, fraud or bad faith (each as finally determined by a
non-appealable
judgment of a court of competent jurisdiction). Notwithstanding anything in this Deposit Agreement to the
contrary, excluding the Depositary’s gross negligence, willful misconduct, fraud or bad faith, the aggregate liability of the Depositary, any Depositary’s Agent or the Registrar or Transfer Agent, as the case may be, to the Corporation
under this Deposit Agreement, whether in contract, tort, or otherwise, is limited to, and shall not exceed, the amounts paid hereunder by the Corporation to the Depositary as fees and charges, but not including reimbursable expenses; provided,
however, that in the event that such liability arises as a result of misappropriation of funds by the Depositary, any of the Depositary’s Agents (except for such Depositary’s Agents which are not employees of the Depositary), any Registrar
or any Transfer Agent, as the case may be, through fraud or willful misconduct on the part of such Person (as finally determined by a
non-appealable
judgment of a court of competent jurisdiction), such limit
shall not apply and such liability hereunder shall be instead limited to the amount of such misappropriated funds or the liability resulting from such fraud or willful misconduct.
Notwithstanding anything in this Deposit Agreement to the contrary, neither the Depositary, nor the Depositary’s Agent nor any Registrar
nor the Transfer Agent nor the Corporation, as the case may be, shall be liable in any event for special, punitive, incidental, indirect or consequential losses or damages of any kind whatsoever (including but not limited to lost profits), even if
they have been advised of the likelihood of such loss or damage and regardless of the form of action.
17
Neither the Depositary nor any Depositary’s Agent nor any Transfer Agent nor the Registrar
nor the Corporation, as the case may be, shall be under any obligation to appear in, prosecute or defend any action, suit or other proceeding in respect of the Series F Preferred Stock, the Depositary Shares or the Receipts which in its opinion may
involve it in expense or liability unless indemnity reasonably satisfactory to it against all expense and liability be furnished as often as may be required.
Neither the Depositary nor any Depositary’s Agent nor any Registrar nor the Transfer Agent nor the Corporation, as the case may be, shall
be liable for any action or any failure to act by it in reliance upon information from any Person presenting Series F Preferred Stock for deposit, any Holder of a Receipt or any other Person believed by it, in the absence of bad faith, to be
competent to give such information. The Depositary, any Depositary’s Agent, any Registrar, any Transfer Agent and the Corporation, as the case may be, may each rely and shall each be protected in acting upon or omitting to act upon any written
notice, request, direction or other document believed by it to be genuine and to have been signed or presented by the proper party or parties.
The Depositary, the Depositary’s Agent, any Registrar or Transfer Agent, as the case may be, shall not be responsible for any failure to
carry out any instruction to vote any of the shares of the Series F Preferred Stock or for the manner or effect of any such vote made, as long as any such action or
non-action
is not taken with gross
negligence, willful misconduct, fraud or bad faith (each as finally determined by a
non-appealable
judgment of a court of competent jurisdiction). The Depositary undertakes, and any Depositary’s Agent,
Registrar and any Transfer Agent, as the case may be, shall be required to undertake, to perform such duties and only such duties as are specifically set forth in this Deposit Agreement, and no implied covenants or obligations shall be read into
this Deposit Agreement against the Depositary or any Depositary’s Agent, Transfer Agent or Registrar.
The Depositary, its parent,
Affiliate, or subsidiaries, and Depositary’s Agents, and any Transfer Agent or Registrar, as the case may be, may own and deal in any class of securities of the Corporation and its Affiliates and in Receipts or Depositary Shares or become
pecuniarily interested in any transaction in which the Corporation or its Affiliates may be interested or contract with or lend money to or otherwise act as fully or as freely as if it were not the Depositary, the parent, Affiliate or subsidiary of
the Depositary or the Depositary’s Agent or Transfer Agent or Registrar hereunder. The Depositary may also act as transfer agent, trustee, or registrar of any of the securities of the Corporation and its Affiliates or act in any other capacity
for the Corporation or its Affiliates.
The Depositary shall not be under any liability for interest on any monies at any time received by
it pursuant to any of the provisions of this Deposit Agreement or of the Receipts, the Depositary Shares or the Series F Preferred Stock nor shall it be obligated to segregate such monies from other monies held by it, except as required by law. The
Depositary shall not be responsible for advancing funds on behalf of the Corporation and shall have no duty or obligation to make any payments if it has not timely received sufficient funds to make timely payments.
18
In the event the Depositary, the Depositary’s Agents, any Transfer Agent or Registrar, as
the case may be, reasonably believes any ambiguity or uncertainty exists hereunder or in any notice, instruction, direction, request or other communication, paper or document received by the Depositary, the Depositary’s Agents, any Transfer
Agent or Registrar hereunder, or in the administration of any of the provisions of this Deposit Agreement, the Depositary, the Depositary’s Agents, any Transfer Agent or Registrar shall deem it necessary or desirable that a matter be proved or
established prior to taking, omitting or suffering to take any action hereunder, the Depositary, the Depositary’s Agents, any Transfer Agent or Registrar may, in its sole discretion upon providing written notice to the Corporation, refrain from
taking any action and the Depositary, the Depositary’s Agents, any Transfer Agent or Registrar shall be fully protected and shall not be liable in any way to the Corporation, any Holders of Receipts or any other Person or entity for refraining
from taking such action, unless the Depositary, the Depositary’s Agents, any Transfer Agent or Registrar receives written instructions or a certificate signed by a duly authorized officer of the Corporation which eliminates such ambiguity or
uncertainty to the satisfaction of the Depositary or which proves or establishes the applicable matter to the satisfaction of the Depositary, the Depositary’s Agents, any Transfer Agent or Registrar or which proves or establishes the applicable
matter to the satisfaction of the Depositary, the Depositary’s Agents, any Transfer Agent or Registrar. Such written instructions shall be full and complete authorization to the Depositary, the Depositary’s Agents, any Transfer Agent or
Registrar, as the case may be, and the Depositary, the Depositary’s Agents, any Transfer Agent or Registrar shall incur no liability for or in respect of any action taken, suffered or omitted by it under the provisions of this Deposit Agreement
in reliance upon such written instructions.
In the event the Depositary, the Depositary’s Agent, the Registrar or the Transfer
Agent, as the case may be, shall receive conflicting claims, requests or instructions from any Holders of Receipts, on the one hand, and the Corporation, on the other hand, the Depositary, the Depositary’s Agent, the Registrar or the Transfer
Agent, as the case may be, shall be entitled to act on such claims, requests or instructions received from the Corporation, and shall incur no liability and shall be entitled to the full indemnification set forth in
Section
5.7
hereof in connection with any action so taken.
It is intended that the Depositary shall not be
deemed to be an “issuer” of the securities under the federal securities laws or applicable state securities laws, it being expressly understood and agreed that the Depositary is acting only in a ministerial capacity as Depositary for the
deposited Series F Preferred Stock. The Depositary will not be under any duty or responsibility to ensure compliance with any applicable federal or state securities laws in connection with the issuance, transfer or exchange of the Receipts, the
shares of the Series F Preferred Stock or Depositary Shares.
Neither the Depositary (or its officers, directors, employees or agents),
any Depositary’s Agent nor any Registrar or any Transfer Agent makes any representation or has any responsibility as to the validity of any registration statement pursuant to which the Depositary Shares may be registered under the Securities
Act, the deposited Series F Preferred Stock, the Depositary Shares, the Receipts (except its countersignature thereon) or any instruments referred to therein or herein, or as to the correctness of any statement made in any such registration
statement or herein.
19
The Depositary assumes no responsibility for the correctness of the description that appears in
the Receipts. Notwithstanding any other provision herein or in the Receipts, the Depositary makes no warranties or representations as to the validity or genuineness of any shares of the Series F Preferred Stock at any time deposited with the
Depositary hereunder or of the Depositary Shares, as to the validity or sufficiency of this Deposit Agreement, as to the value of the Depositary Shares or as to any right, title or interest of the record holders of Receipts in and to the Depositary
Shares. The Depositary shall not be accountable for the use or application by the Corporation of the Depositary Shares or the Receipts or the proceeds thereof.
The Depositary, Depositary’s Agent, any Registrar, and any Transfer Agent hereunder:
(i) shall have no duties or obligations other than those specifically set forth herein (and no implied duties or obligations), or as may
subsequently be agreed to in writing by the parties;
(ii) shall have no obligation to make payment hereunder unless the Corporation shall
have provided the necessary federal or other immediately available funds or securities or property, as the case may be, to pay in full amounts due and payable with respect thereto;
(iii) shall not be obligated to take any legal or other action hereunder; if, however, the Depositary determines to take any legal or other
action hereunder except as expressly set forth herein, and, where the taking of such action might in the Depositary’s judgment subject or expose it to any expense or liability, the Depositary shall not be required to act unless it shall have
been furnished with an indemnity satisfactory to it;
(iv) may rely on and shall be authorized and protected in acting or failing to act
upon any certificate, instrument, opinion, notice, letter, telegram, telex, facsimile transmission or other document or security delivered to the Depositary and reasonably believed by the Depositary to be genuine and to have been signed by the
proper party or parties, and shall have no responsibility for determining the accuracy thereof;
(v) may rely on and shall be authorized
and protected in acting or failing to act upon the written, telephonic, electronic and oral instructions, with respect to any matter relating to the Depositary’s actions as Depositary covered by this Deposit Agreement (or supplementing or
qualifying any such actions) of officers of the Corporation;
(v) shall not be called upon at any time to advise any Person with respect
to the shares of the Series F Preferred Stock or Receipts;
(vi) shall not be liable or responsible for any recital or statement contained
in any documents relating hereto or the shares of the Series F Preferred Stock or Receipts; and
(vii) shall not be liable in any respect
on account of the identity, authority or rights of the parties (other than with respect to the Depositary) executing or delivering or purporting to execute or deliver this Deposit Agreement or any documents or papers deposited or called for under
this Deposit Agreement.
20
The obligations of the Corporation set forth in this Section 5.4 shall survive the
replacement, removal or resignation of the Depositary, Registrar, Transfer Agent or Depositary’s Agent or termination of this Deposit Agreement.
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Section 5.5
|
Resignation and Removal of the Depositary; Appointment of Successor Depositary.
|
The
Depositary may at any time resign as Depositary hereunder by delivering notice of its election to do so to the Corporation, such resignation to take effect upon the appointment of a successor Depositary and its acceptance of such appointment as
hereinafter provided.
The Depositary may at any time be removed by the Corporation by notice of such removal delivered to the Depositary,
such removal to take effect upon the appointment of a successor Depositary hereunder and its acceptance of such appointment as hereinafter provided.
In case at any time the Depositary acting hereunder shall resign or be removed, the Corporation shall, within 60 days after the delivery of
the notice of resignation or removal, as the case may be, appoint a successor Depositary, which shall be a Person having its principal office in the United States of America and having a combined capital and surplus, along with its Affiliates, of at
least $50,000,000. In the event of such removal or resignation, the Corporation will appoint a successor depositary and inform the Depositary of the name and address of any successor depositary so appointed, provided that no failure by the
Corporation to appoint such a successor depositary shall affect the termination of this Deposit Agreement or the discharge of the Depositary as depositary hereunder. Upon payment of all outstanding fees and expenses hereunder, the Depositary shall
promptly forward to the successor depositary or its designee any shares of stock held by it and any certificates, letters, notices and other document that the Depositary may receive after its appointment has so terminated.
If no successor Depositary shall have been so appointed and have accepted appointment within 60 days after delivery of such notice, the
resigning or removed Depositary may petition any court of competent jurisdiction for the appointment of a successor Depositary. Every successor Depositary shall execute and deliver to its predecessor and to the Corporation an instrument in writing
accepting its appointment hereunder, and thereupon such successor Depositary, without any further act or deed, shall become fully vested with all the rights, powers, duties and obligations of its predecessor and for all purposes shall be the
Depositary under this Deposit Agreement, and such predecessor, upon payment of all sums due it and on the written request of the Corporation, shall promptly execute and deliver an instrument transferring to such successor all rights and powers of
such predecessor hereunder, shall duly assign, transfer and deliver all right, title and interest in the Series F Preferred Stock and any moneys or property held hereunder to such successor, and shall deliver to such successor a list of the Record
Holders of all outstanding Receipts and such records, books and other information in its possession relating thereto.
21
Any Person into or with which the Depositary may be merged, consolidated or converted, or any
Person to which all or a substantial part of the assets of the Depositary may be transferred or which succeeds to the shareholder services business of the Depositary shall be the successor of the Depositary without the execution or filing of any
document or any further act, and notice thereof shall not be required hereunder. Such successor Depositary may authenticate the Receipts in the name of the predecessor Depositary or its own name as successor Depositary.
The removal or resignation of the Depositary shall automatically be deemed to be a removal of the Depositary as Registrar and Transfer Agent
herein without any further act or deed.
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Section 5.6
|
Corporate Notices and Reports.
|
The Corporation agrees that it will deliver to the Depositary,
and the Depositary will, promptly after receipt of all necessary information and documents, transmit to the Record Holders of Receipts, in each case at the addresses recorded in the Depositary’s or Registrar’s books, copies of all notices
and reports (including without limitation financial statements) required by law, by the rules of any national securities exchange upon which the Series F Preferred Stock, the Depositary Shares or the Receipts are listed or by the Corporation’s
Amended and Restated Certificate of Incorporation (including the Certificate of Designations), to be furnished to the Record Holders of Receipts. Such transmission will be at the Corporation’s expense and the Corporation will provide the
Depositary with such number of copies of such documents as the Depositary may reasonably request. In addition, the Depositary will transmit to the Record Holders of Receipts at the Corporation’s expense such other documents as may be requested
by the Corporation.
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Section 5.7
|
Indemnification by the Corporation.
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The Corporation shall indemnify the Depositary, any
Depositary’s Agent and any Registrar and any Transfer Agent (including each of their officers, directors, agents and employees) against, and hold each of them harmless from and against, any fee, loss, claim, damage, cost, penalty, fine,
judgment, liability or expense (including the reasonable costs and expenses of its legal counsel) which may arise out of acts taken, suffered or omitted to be taken in connection with its acting as Depositary, Depositary’s Agent, Registrar or
Transfer Agent, respectively, under this Deposit Agreement (including, without limitation, the enforcement of this Deposit Agreement) and the Receipts by the Depositary, any Registrar or any of their respective agents (including any
Depositary’s Agent) and any transactions or documents contemplated hereby, except for any liability arising out of gross negligence, willful misconduct, fraud or bad faith (each as finally determined by a
non-appealable
judgment of a court of competent jurisdiction) on the respective parts of any such Person or Persons. The obligations of the Corporation and the rights of the Depositary set forth in this
Section
5.7
shall survive any succession of any Depositary, Registrar, Transfer Agent or Depositary’s Agent or termination of this Deposit Agreement.
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Section 5.8
|
Fees, Charges and Expenses.
|
The Corporation agrees promptly to pay the Depositary the
compensation to be agreed upon with the Corporation for all services rendered by the Depositary, Depositary’s Agent, Registrar and Transfer Agent hereunder and to reimburse the Depositary for its reasonable
22
out-of-pocket
expenses (including reasonable counsel fees and expenses) incurred by the Depositary,
Depositary’s Agent, Registrar and Transfer Agent without gross negligence, willful misconduct, fraud or bad faith on its part (each as finally determined by a
non-appealable
judgment of a court of
competent jurisdiction) in connection with the services rendered by such Depositary, Depositary’s Agent, Registrar and Transfer Agent, as the case may be, hereunder. The Corporation shall pay all charges of the Depositary in connection with the
initial deposit of the Series F Preferred Stock and the initial issuance of the Depositary Shares, all withdrawals of shares of Series F Preferred Stock by owners of Depositary Shares, and any redemption or exchange of the Series F Preferred Stock
at the option of the Corporation. The Corporation shall pay all transfer and other taxes and charges arising solely from the existence of the depositary arrangements. All other transfer and other taxes and charges shall be at the expense of Holders
of Depositary Shares evidenced by Receipts. If, at the request of a Holder of Receipts, the Depositary incurs charges or expenses for which the Corporation is not otherwise liable hereunder, such Holder will be liable for such charges and expenses;
provided
,
however
, that the Depositary may, at its sole option, require a Holder of a Receipt to prepay the Depositary any charge or expense the Depositary has been asked to incur at the request of such Holder of Receipts. The
Depositary shall present its statement for charges and expenses to the Corporation at such intervals as the Corporation and the Depositary may agree.
ARTICLE VI
AMENDMENT
AND TERMINATION
The form of the Receipts and any provisions of this Deposit Agreement may at any
time and from time to time be amended by agreement between the Corporation and the Depositary in any respect which they may deem necessary or desirable;
provided
,
however
, that no such amendment (other than any change in the fees of
any Depositary, Depositary’s Agent, Transfer Agent, or Registrar, as the case may be) which shall materially and adversely alter the rights of the Holders of Receipts shall be effective against the Holders of Receipts unless such amendment
shall have been approved by the Holders of Receipts representing in the aggregate at least 66 2/3% of the Depositary Shares then outstanding. Every Holder of an outstanding Receipt at the time any such amendment becomes effective shall be deemed, by
continuing to hold such Receipt, to consent and agree to such amendment and to be bound by the Deposit Agreement as amended thereby. In no event shall any amendment impair the right, subject to the provisions of
Section
2.5
and
Section
2.6
and Article III, of any owner of Depositary Shares to surrender any Receipt evidencing such Depositary Shares to the Depositary with instructions to deliver to the Holder the Series F Preferred Stock and all
money and other property, if any, represented thereby, except in order to comply with mandatory provisions of applicable law or the rules and regulations of any governmental body, agency or commission, or applicable securities exchange. As a
condition precedent to the Depositary’s execution of any amendment, the Corporation shall deliver to the Depositary a certificate from a duly authorized officer of the Corporation that states that the proposed amendment is in compliance with
the terms of this Section 6.1.
23
This Deposit Agreement may be terminated by the Corporation at any time upon not
less than sixty (60) days prior written notice to the Depositary, in which case, at least thirty (30) days prior to the date fixed in such notice for such termination, the Depositary will mail notice of such termination to the record
Holders of all Receipts then outstanding. If any Receipts shall remain outstanding after the date of termination of this Deposit Agreement, the Depositary thereafter shall discontinue the transfer of Receipts, shall suspend the distribution of
dividends to the Holders of the Receipts thereof and shall not give any further notices (other than notice of such termination) or perform any further acts under this Deposit Agreement, except that the Depositary shall continue to collect dividends
and other distributions pertaining to the Series F Preferred Stock, and shall continue to deliver the Stock and any money and other property, if any, represented by Receipts upon surrender thereof by the Holders of Receipts thereof. At any time
after the expiration of two years from the date of termination, as may be instructed by the Corporation in writing, the Depositary shall (i) sell the shares of the Series F Preferred Stock then held hereunder at public or private sale, at such
places and upon such terms as it deems proper and may thereafter hold the net proceeds of any such sale, together with any money and other property held by it hereunder, without liability for interest, for the benefit, pro rata in accordance with
their holdings, of the Holders of Receipts that have not theretofore been surrendered, or (ii) return such shares of Series F Preferred Stock to the Corporation. After making such sale, the Depositary shall be discharged from all obligations
under this Deposit Agreement except to account for such net proceeds and money and other property. The Depositary shall continue to receive its fees and expenses after termination of this Deposit Agreement so long as the Depositary continues to
provide services in connection with this Deposit Agreement.
Subject to the first paragraph of this Section 6.2, this Deposit
Agreement may be terminated by the Corporation or the Depositary only if (i) all outstanding Depositary Shares issued hereunder have been redeemed pursuant to
Section
2.8
, (ii) there shall have been made a final
distribution in respect of the Series F Preferred Stock in connection with any liquidation, dissolution or winding up of the Corporation and such distribution shall have been distributed to the Holders of Receipts representing Depositary Shares
pursuant to
Section
4.1
or
Section
4.2
, as applicable, or (iii) upon the consent of Holders of Receipts representing in the aggregate not less than 66 2/3% of the Depositary Shares
outstanding.
Upon the termination of this Deposit Agreement, the Corporation shall be discharged from all obligations under this Deposit
Agreement except for its obligations to the Depositary, any Depositary’s Agent and any Registrar under
Section
5.7
and
Section
5.8
; provided further that
Section
5.3
and
Section
5.7
shall survive the termination of this Deposit Agreement.
ARTICLE VII
MISCELLANEOUS
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Section 7.1
|
Counterparts.
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This Deposit Agreement may be executed in any number of counterparts, and by
each of the parties hereto on separate counterparts, each of which counterparts, when so executed and delivered, shall be deemed an original, but all such counterparts taken together shall constitute one and the same instrument. A signature to this
Deposit Agreement transmitted electronically shall have the same authority, effect, and enforceability as an original signature.
24
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Section 7.2
|
Exclusive Benefit of Parties.
|
This Deposit Agreement is for the exclusive benefit of the
parties hereto, and their respective successors hereunder, and shall not be deemed to give any legal or equitable right, remedy or claim to any other Person whatsoever.
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Section 7.3
|
Invalidity of Provisions.
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In case any one or more of the provisions contained in this Deposit
Agreement or in the Receipts should be or become invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein or therein shall in no way be affected, prejudiced or disturbed
thereby.
Any and all notices, requests, orders, approvals, instructions or directions to be
given to the Corporation hereunder or under the Receipts shall be in writing and shall be deemed to have been duly given if personally delivered or sent by mail or a nationally recognized overnight delivery service, or by facsimile transmission or
electronic mail, confirmed either by (a) telephone with the recipient of such facsimile transmission or electronic mail or (b) letter, addressed to the Corporation at:
Webster Financial Corporation
145
Bank Street (Webster Plaza)
Waterbury, Connecticut 06702
Attention: General Counsel
or at any other
addresses of which the Corporation shall have notified the Depositary in writing.
Any and all notices, requests, orders, approvals,
instructions or directions to be given to the Depositary hereunder or under the Receipts shall be in writing and shall be deemed to have been duly given if personally delivered or sent by mail or a nationally recognized overnight delivery service,
or by facsimile transmission or electronic mail, confirmed either by (a) telephone with the recipient of such facsimile transmission or electronic mail or (b) letter, addressed to the Depositary at:
Broadridge Corporate Issuer Solutions, Inc.
1717 Arch Street, Suite 1300
Philadelphia, PA 19103
Attention:
President
Facsimile: (631)
257-4907
25
With a copy to (which copy shall not constitute notice):
Broadridge Financial Solutions, Inc.
5 Dakota Drive, Suite 300
Lake
Success, New York 11042
Attention: General Counsel
Facsimile: (201)
714-3506
or at any other addresses of which the Depositary shall have notified the Corporation in writing.
Any and all notices to be given to any Record Holder of a Receipt hereunder or under the Receipts shall be in writing and shall be deemed to
have been duly given if personally delivered, sent by a nationally recognized overnight delivery service or sent by mail or facsimile transmission, confirmed by letter, addressed to such Record Holder at the address of such Record Holder as it
appears on the books of the Depositary, or if such Holder shall have timely filed with the Depositary a request that notices intended for such Holder be mailed to some other address, at the address designated in such request.
Delivery of a notice sent by mail or by facsimile transmission shall be deemed to be effected at the time when a duly addressed letter
containing the same (or a confirmation thereof in the case of a facsimile transmission) is deposited, postage prepaid, in a post office letter box. The Depositary or the Corporation may, however, act upon any facsimile transmission received by it
from the other or from any Holder of a Receipt, notwithstanding that such facsimile transmission shall not subsequently be confirmed by letter or as aforesaid.
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Section 7.5
|
Depositary’s Agents.
|
The Depositary may from time to time appoint Depositary’s
Agents to act in any respect for the Depositary for the purposes of this Deposit Agreement and may at any time appoint additional Depositary’s Agents and vary or terminate the appointment of such Depositary’s Agents. The Depositary will
promptly notify the Corporation of any such action.
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Section 7.6
|
Appointment of Registrar, Dividend Disbursing Agent and Redemption Agent in Respect of the Series F Preferred Stock.
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The Corporation hereby appoints Broadridge as Registrar, Transfer Agent, dividend disbursing agent and redemption agent with respect to the
shares of the Series F Preferred Stock deposited with the Depositary hereunder, and Broadridge hereby accept such respective appointments, subject to the express terms and conditions of this Deposit Agreement (and no implied terms or conditions)
and, as such, will reflect changes in the number of shares of deposited Series F Preferred Stock held by it by notation, book-entry or other appropriate method. With respect to the appointment of Broadridge as Registrar, Transfer Agent, dividend
disbursing agent and redemption agent in respect of the shares of the Series F Preferred Stock, Broadridge, in its respective capacities under such appointments, shall be entitled to the same rights, indemnities, immunities and benefits as the
Depositary hereunder as if explicitly named in each such provision.
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Section 7.7
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Holders of Receipts Are Parties.
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The Holders of Receipts from time to time shall be parties
to this Deposit Agreement and shall be bound by all of the terms and conditions hereof and of the Receipts by acceptance of delivery thereof.
26
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Section 7.8
|
Governing Law.
|
This Deposit Agreement and the Receipts and all rights hereunder and
thereunder and provisions hereof and thereof shall be governed by, and construed in accordance with, the laws of the State of New York without giving effect to applicable conflicts of law principles.
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Section 7.9
|
Inspection of Deposit Agreement.
|
Copies of this Deposit Agreement shall be filed with the
Depositary and the Depositary’s Agents and shall be made available for inspection during business hours upon reasonable notice to the Depositary by any Holder of a Receipt.
The headings of articles and sections in this Deposit Agreement and in the form of
the Receipt set forth in
Exhibit A
hereto have been inserted for convenience only and are not to be regarded as a part of this Deposit Agreement or the Receipts or to have any bearing upon the meaning or interpretation of any provision
contained herein or in the Receipts.
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Section 7.11
|
Force Majeure.
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Notwithstanding anything to the contrary contained herein, the Depositary will
not be liable for any delays or failures in performance resulting from acts beyond its reasonable control including, without limitation, acts of God, terrorist acts, shortage of supply, breakdowns or malfunctions, interruptions or malfunction of
computer facilities, or loss of data due to power failures or mechanical difficulties with information storage or retrieval systems, labor difficulties, war, or civil unrest.
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Section 7.12
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Further Assurances.
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Each of the Corporation and the Depositary, respectively, agrees that it
will perform, acknowledge, and deliver or cause to be performed, acknowledged or delivered, all such further and other acts, documents, instruments and assurances as the Depositary or the Corporation, respectively, may reasonably require in
connection with the performance of this Deposit Agreement.
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Section 7.13
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Confidentiality.
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The Depositary and the Corporation agree that all books, records, information
and data pertaining to the business of the other party, including
inter alia
, personal,
non-public
Holder information and the fees for services, which are exchanged or received pursuant to the
negotiation or the carrying out of this Deposit Agreement, shall remain confidential, and shall not be voluntarily disclosed to any other Person, except as may be required by law or legal process. To avoid doubt, the parties hereto shall not be
required to keep the terms of this Deposit Agreement confidential.
[Remainder of page intentionally left blank; signature page
follows.]
27
IN WITNESS WHEREOF, the Corporation and the Depositary have duly executed this Deposit Agreement
as of the day and year first above set forth, and all Holders of Receipts shall become parties hereto by and upon acceptance by them of delivery of Receipts issued in accordance with the terms hereof.
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WEBSTER FINANCIAL CORPORATION
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By
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/s/ Glenn I. MacInnes
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Name:
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Glenn I. MacInnes
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Title:
|
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Executive Vice President and Chief Financial Officer
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BROADRIDGE CORPORATE ISSUER SOLUTIONS, INC., as Depositary
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By
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/s/ John P. Dunn
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Name:
|
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John P. Dunn
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Title:
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Vice President
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BROADRIDGE CORPORATE ISSUER SOLUTIONS, INC., as Transfer Agent and Registrar for the shares of the Corporation’s Series F Preferred Stock
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By
|
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/s/ John P. Dunn
|
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Name:
|
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John P. Dunn
|
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Title:
|
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Vice President
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[
Signature Page to Deposit Agreement
]
EXHIBIT A
[FORM OF FACE OF RECEIPT]
[IF
GLOBAL RECEIPT IS ISSUED: UNLESS THIS GLOBAL RECEIPT IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“
DTC
”), TO THE DEPOSITARY OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE, OR PAYMENT, AND ANY RECEIPT ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL RECEIPT SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH
SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL RECEIPT SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE DEPOSIT AGREEMENT REFERRED TO BELOW.]
DEPOSITARY SHARES,
EACH
REPRESENTING 1/1000
th
OF ONE SHARE
OF
5.25%
NON-CUMULATIVE
PERPETUAL PREFERRED STOCK, SERIES F
OF
WEBSTER FINANCIAL CORPORATION
SEE REVERSE FOR CERTAIN DEFINITIONS
Dividend Payment Dates: Beginning March 15, 2018, each March 15, June 15, September 15 and December 15.
BROADRIDGE CORPORATE ISSUER SOLUTIONS, INC., as Depositary (the “
Depositary
”), hereby certifies that
is the registered owner of
depositary shares (“
Depositary Shares
”), each Depositary Share representing 1/1000
th
of one share of 5.25% Non-Cumulative Perpetual Preferred Stock, Series F, liquidation preference $25,000 per share, par value $0.01 per share (the “
Series F Preferred Stock
”), of
Webster Financial Corporation, a Delaware corporation (the “
Corporation
”), on deposit with the Depositary, subject to the terms and entitled to the benefits of the Deposit Agreement, dated as of December 12, 2017 (the
“
Deposit Agreement
”), among the Corporation, the Depositary and the Holders from time to time of the Receipts. By accepting this Depositary Receipt, the Holder hereof becomes a party to and agrees to be bound by all the terms and
conditions of the Deposit Agreement. This Receipt shall not be valid or obligatory for any purpose or entitled to any benefits under the Deposit Agreement unless it shall have been executed by the Depositary by
A-1
the manual or facsimile signature of a duly authorized officer and, if a Registrar for the Receipts (other than the Depositary) shall have been appointed, countersigned by such Registrar by the
manual or facsimile signature of a duly authorized officer thereof.
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Dated:
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Dated:
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Broadridge Corporate Issuer Solutions, Inc., as Depositary
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Broadridge Corporate Issuer Solutions, Inc.,
as Transfer Agent and Registrar
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By:
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By:
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Authorized Officer
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Authorized Officer
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A-2
[FORM OF REVERSE OF RECEIPT]
THE CORPORATION WILL FURNISH WITHOUT CHARGE TO EACH REGISTERED HOLDER OF RECEIPTS WHO SO REQUESTS A COPY OF THE DEPOSIT AGREEMENT AND A COPY
OF THE CERTIFICATE OF DESIGNATIONS OF 5.25%
NON-CUMULATIVE
PERPETUAL PREFERRED STOCK, SERIES F OF WEBSTER FINANCIAL CORPORATION. ANY SUCH REQUEST IS TO BE ADDRESSED TO THE DEPOSITARY NAMED ON THE FACE OF THIS
RECEIPT.
The Corporation will furnish without charge to each registered holder of receipts who so requests the powers, designations,
preferences and relative, participating, optional or other special rights of each class of stock or series thereof of the Corporation, and the qualifications, limitations or restrictions of such preferences and/or rights. Such request may be made to
the Corporation or to the Registrar.
EXPLANATION OF ABBREVIATIONS
The following abbreviations when used in the form of ownership on the face of this certificate shall be construed as though they were written
out in full according to applicable laws or regulations. Abbreviations in addition to those appearing below may be used.
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Abbreviation
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Abbreviation
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Abbreviation
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Equivalent Word
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JT TEN
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As joint tenants, with right of survivorship and not as tenants in common
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TEN BY ENT
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As tenants by the entireties
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TEN IN COM
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As tenants in common
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UNIF GIFT MIN ACT
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Uniform Gifts to Minors Act
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Abbreviation
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Equivalent Word
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Abbreviation
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Equivalent Word
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Abbreviation
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Equivalent Word
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ADM
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Administrator(s),
Administratrix
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EX
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Executor(s), Executrix
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PL
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Public Law
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AGMT
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Agreement
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FBO
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For the benefit of
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TR
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(As) trustee(s), for, of
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ART
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Article
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FDN
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Foundation
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U
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Under
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CH
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Chapter
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GDN
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Guardian(s)
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UA
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Under Agreement
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CUST
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Custodian for
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GDNSHP
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Guardianship
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UW
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Under will of, Of will of, Under last will & testament
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DEC
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Declaration
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MIN
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Minor(s)
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EST
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Estate, of Estate of
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PAR
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Paragraph
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A-3
ASSIGNMENT
For value received,
hereby sell(s), assign(s) and transfer(s) unto
INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
PRINT OR TYPEWRITE NAME AND ADDRESS INCLUDING POSTAL ZIP CODE OF ASSIGNEE
Depositary Shares represented by the within Receipt, and do(es) hereby irrevocably constitute and appoint
Attorney to transfer the said Depositary Shares on the books of the within named Depositary with full power of
substitution in the premises.
NOTICE: The signature to the assignment must correspond with the name as written upon the face of this Receipt in every
particular, without alteration or enlargement or any change whatsoever.
SIGNATURE GUARANTEED
NOTICE: The signature(s) should be guaranteed by a participant in a Medallion Signature Guarantee Program at a guarantee level acceptable to the
Corporation’s transfer agent. Guarantees by a notary public are not acceptable.
A-4
