Common Stock
no par value
Underwriting
Agreement
(the “Agreement”)
Sandler
O’Neill & Partners, L.P.,
as
Representative of the several Underwriters
named in Schedule I to this Agreement
919 Third
Avenue
6 th
Floor
New York, New York 10022
Old National
Bancorp, an Indiana corporation (the “Company”),
proposes, subject to the terms and conditions stated herein, to
issue and sell to Sandler O’Neill & Partners, L.P.
(“Sandler O’Neill”) and each of the other
underwriters named in Schedule I hereto (collectively,
the “Underwriters,” which term shall also include any
underwriter substituted as hereinafter provided in Section 11
hereof), for whom Sandler O’Neill is acting as representative
(in such capacity, the “Representative”) with respect
to (i) the sale by the Company, and the purchase by the
Underwriters, acting severally and not jointly, of an aggregate of
18,000,000 shares of Common Stock, no par value, of the Company
(the “Stock”), as set forth in Schedule I
hereto (the “Firm Shares”) and (ii) the grant by
the Company to the Underwriters, acting severally and not jointly,
of the option described in Section 2(b) hereof to purchase all or
any part of 2,700,000 additional shares of Stock (the
“Optional Shares”) to cover over-allotments, if any
(the Firm Shares and the Optional Shares that the Underwriters
elect to purchase pursuant to Section 2(b) hereof being
collectively called the “Shares”).
The Company has
filed with the Securities and Exchange Commission (the
“Commission”) an “automatic shelf registration
statement,” as defined under Rule 405
(“Rule 405”) of the rules and regulations (the
“1933 Act Regulations”) of the Commission promulgated
under the Securities Act of 1933, as amended (the
“Act”) on Form S-3 (No. 333-151499),
including the related base prospectus, covering the registration of
certain classes of securities of the Company (including the Shares)
under the Act, and the offer and sale thereof from time to time in
accordance with Rule 415 of the 1933 Act Regulations. Such
registration statement, and any post-effective amendment thereto,
became effective upon filing with the Commission in accordance with
Rule 462(e) of the 1933 Act Regulations. Promptly after execution
and delivery of this Agreement, the Company will prepare and file a
prospectus supplement in accordance with the provisions of
Rule 430B of the 1933 Act Regulations
(“Rule 430B”) and paragraph (b) of
Rule 424 of the 1933 Act Regulations (“Rule
424(b)”). Any information included in such prospectus
supplement that was omitted from such registration statement at the
time it became effective but that is deemed to be part of and
included in such registration statement pursuant to Rule 430B
is referred to herein as “Rule 430B Information.”
Each base prospectus and prospectus supplement used in connection
with the offering of the Shares that omitted Rule 430B
Information is referred to herein collectively as a
“preliminary prospectus.” Such registration statement,
at any given time, including any amendments thereto to such time,
the exhibits and any schedules thereto at such time, the documents
incorporated or deemed incorporated by reference therein pursuant
to Item 12 of Form S-3 under the Act at such time and the
documents otherwise deemed to be a part thereof or included therein
by the 1933 Act Regulations, is herein referred to as the
“Registration Statement”; provided ,
however , that “Registration Statement” without
reference to a time means such registration statement as of the
time of the first contract of sale for the Shares, which time shall
be considered the “new effective date” of such
registration statement with respect to the Underwriters and the
Shares (within the meaning of Rule 430B(f)(2)); provided,
further, that any registration statement filed pursuant to Rule
462(b) of the 1933 Act Regulations is referred to herein as the
“Rule 462(b) Registration Statement,” and after
such filing the term “Registration Statement” shall
include the Rule 462(b) Registration Statement. The final base
prospectus and prospectus supplement, in the form first furnished
or made available to the Underwriters for use in connection with
the confirmations of sales of the Shares, including the documents
incorporated or deemed incorporated by reference therein pursuant
to Item 12 of Form S-3 under the Act prior to the time of the
execution of this Agreement, are referred to herein collectively as
the “Prospectus.” For purposes of this Agreement, all
references to the Registration Statement, any preliminary
prospectus, the Prospectus or any amendment or supplement to any of
the foregoing shall be deemed to include the copy filed with the
Commission pursuant to its Electronic Data Gathering, Analysis and
Retrieval system or any successor system thereto (collectively,
“EDGAR”) or its Interactive Data Electronic
Applications system (“IDEA”).
All references in
this Agreement to financial statements and schedules and other
information which is “contained,”
“included” or “stated” in the Registration
Statement, any preliminary prospectus, the Prospectus or the
General Disclosure Package (as defined herein) (or other references
of like import) shall be deemed to include all such financial
statements and schedules and other information which is or is
deemed to be incorporated by reference in or
2
otherwise
deemed by the 1933 Act Regulations to be a part of or included in
the Registration Statement, any preliminary prospectus, the
Prospectus or the General Disclosure Package, as the case may be,
prior to the execution of this Agreement; and all references in
this Agreement to amendments or supplements to the Registration
Statement, any preliminary prospectus, the Prospectus or the
General Disclosure Package shall be deemed to include the filing of
any document under the Securities Exchange Act of 1934, as amended
(the “Exchange Act”), which is or is deemed to be
incorporated by reference in or otherwise deemed by the 1933 Act
Regulations to be a part of or included in the Registration
Statement, such preliminary prospectus, the Prospectus or the
General Disclosure Package, as the case may be, at or after the
execution of this Agreement.
1. (a) The
Company represents and warrants to each Underwriter, as of the date
hereof, the Applicable Time referred to in Section 1(a)(i)
hereof, the First Time of Delivery referred to in Section 4(a)
hereof and each Additional Time of Delivery (if any) referred to in
Section 4(a) hereof that:
(i) The
Company meets the requirements for the use of Form S-3 for
registration under the Act. The Registration Statement was filed by
the Company with the Commission not earlier than three years prior
to the date hereof. The Registration Statement became effective
under the Act upon filing with the Commission. The Registration
Statement is an “automatic shelf registration
statement,” as defined in Rule 405, and the Shares,
since their registration on the Registration Statement, have been
and remain eligible for registration by the Company on an automatic
shelf registration statement. No stop order suspending the
effectiveness of the Registration Statement or any part thereof has
been issued under the Act and no proceeding for that purpose has
been instituted or is pending or, to the knowledge of the Company,
is threatened or contemplated by the Commission or any state or
other jurisdiction or regulatory body, and no notice of objection
of the Commission to the use of such Registration Statement or any
post-effective amendment thereto pursuant to Rule 401(g)(2) of
the 1933 Act Regulations has been received by the Company. No order
preventing or suspending the use of any preliminary prospectus, the
Statutory Prospectus (as defined below) or the Prospectus has been
issued and no proceeding for that purpose has been instituted or is
pending or, to the knowledge of the Company, is threatened or
contemplated by the Commission or any state or other jurisdiction
or regulatory body. The Company has fully complied with any request
on the part of the Commission or any state or other
jurisdiction’s regulatory body for additional
information.
At the respective
times the Registration Statement (including any Rule 462(b)
Registration Statement) and any post-effective amendments thereto
became effective, at each deemed effective date with respect to the
Underwriters and the Shares pursuant to Rule 430B(f)(2), at
the First Time of Delivery and at each Additional Time of Delivery
(if any), each of the Registration Statement and any amendment or
supplement thereto complied, complies and will comply in all
material respects with the requirements of the Act and the 1933 Act
Regulations, and did not, does not and will not contain an untrue
statement of a material fact or omit to state a material fact
required to be stated therein or necessary in order to make the
statements therein not misleading. Neither the Prospectus nor any
amendment or supplement thereto, at the respective dates of the
Prospectus and any such amendment or supplement, at the
3
respective
times that the Prospectus and any such amendment or supplement were
issued, at the First Time of Delivery or at any Additional Time of
Delivery, included, includes or will include an untrue statement of
a material fact or omitted, omits or will omit to state a material
fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not
misleading.
Any preliminary
prospectus (including the prospectus filed as part of the
Registration Statement or any amendment thereto) complied when so
filed in all material respects with the Act and the 1933 Act
Regulations and any such preliminary prospectus and the Prospectus
delivered or made available to the Underwriters for use in
connection with the offering of Securities was and will, at the
time of such delivery, be identical to the electronically
transmitted copies thereof filed with the Commission pursuant to
EDGAR, except to the extent permitted by
Regulation S-T.
At the Applicable
Time, each Issuer-Represented Free Writing Prospectus (as defined
below) identified on Schedule II , the Statutory
Prospectus (as defined below) and the information agreed to in
writing by the Company and the Underwriters as the information to
be conveyed orally by the Underwriters to purchasers of the Shares
at the Applicable Time as set forth on Schedule III , all
considered together (collectively, the “General Disclosure
Package”), did not include an untrue statement of a material
fact or omit to state any material fact necessary in order to make
the statements therein, in the light of the circumstances under
which they were made, not misleading.
The
representations and warranties in the preceding three paragraphs
shall not apply to statements in or omissions from the Registration
Statement, or any post-effective amendment thereto, or the
Prospectus or the General Disclosure Package, or any amendment or
supplement thereto, made in reliance upon and in conformity with
the information specified in Section 8(a) hereof that will be
furnished to the Company in writing by the Representative on behalf
of the Underwriters expressly for use therein.
As used in this
subsection and elsewhere in this Agreement:
“Applicable
Time” means 6:30 p.m. (New York City time) on
September 22, 2009 or such other time as agreed by the Company
and the Representative.
“Statutory
Prospectus,” at any given time, means the base prospectus
that is included in the Registration Statement and the preliminary
prospectus supplement relating to the Shares immediately prior to
that time, including the documents incorporated or deemed to be
incorporated by reference therein at such time. For purposes of
this definition, information contained in a form of prospectus that
is deemed retroactively to be a part of the Registration Statement
pursuant to Rule 430B shall be considered to be included in the
Statutory Prospectus only at the actual time that such form of
prospectus is filed with the Commission pursuant to
Rule 424(b).
“Issuer-Represented
Free Writing Prospectus” means any “issuer free writing
prospectus,” as defined in Rule 433 of the 1933 Act
Regulations (“Rule 433”), relating to the Shares
that (i) is required to be filed with the Commission by the
Company, (ii) is a “road show
4
that is a
written communication” within the meaning of
Rule 433(d)(8)(i) of the 1933 Act Regulations, whether or not
required to be filed with the Commission, or (iii) is exempt
from filing with the Commission pursuant to Rule 433(d)(5)(i)
of the 1933 Act Regulations because it contains a description of
the Shares or of the offering that does not reflect the final
terms, in each case in the form filed or required to be filed with
the Commission or, if not required to be filed, in the form
retained in the Company’s records pursuant to Rule 433(g) of
the 1933 Act Regulations.
Each
Issuer-Represented Free Writing Prospectus, at its issue date and
at all subsequent times through the completion of the public
offering contemplated hereby or until any earlier date that the
Company notified or notifies the Representative as described in
Section 5(b) hereof, did not, does not and will not include any
information that conflicted, conflicts or will conflict with the
information contained in the Registration Statement, any
preliminary prospectus, the Statutory Prospectus or the Prospectus,
including any document incorporated or deemed incorporated by
reference therein and any preliminary or other prospectus deemed to
be a part thereof that has not been superseded or
modified;
(ii) (A) At
the date of the original effectiveness of the Registration
Statement, (B) at the time of the most recent amendment
thereto for the purposes of complying with Section 10(a)(3) of
the Act (whether such amendment was by post-effective amendment,
incorporated report filed pursuant to Section 13 or 15(d) of
the Exchange Act or form of prospectus), (C) at the time the
Company or any person acting on its behalf (within the meaning, for
this clause only, of Rule 163(c) of the 1933 Act Regulations) made
any offer relating to the Shares in reliance on the exemption of
Rule 163 of the 1933 Act Regulations, and (D) at the date
hereof, the Company was and is a “well-known seasoned
issuer” as defined in Rule 405; and (AA) at the
original effectiveness of the Registration Statement, (BB) at
the earliest time after the original effectiveness of the
Registration Statement that the Company or another offering
participant made a bona fide offer (within the meaning of
Rule 164(g)(2) of the 1933 Act Regulations) of the Shares and
(CC) as of the execution of this Agreement (with such time of
execution being used as the determination date for purpose of this
clause (CC)), the Company was not and is not an “ineligible
issuer,” as defined in Rule 405, without taking account
of any determination by the Commission pursuant to Rule 405
that it is not necessary that the Company be considered an
ineligible issuer;
(iii) The
documents which are incorporated or deemed to be incorporated by
reference in the Registration Statement, the General Disclosure
Package and the Prospectus or from which information is so
incorporated by reference (the “Exchange Act Reports”),
when they became effective or were filed with the Commission, as
the case may be (or, if an amendment with respect to any such
documents was filed or became effective, when such amendment was
filed or became effective), complied in all material respects to
the requirements of the Exchange Act, and the rules and regulations
of the Commission thereunder (the “1934 Act
Regulations”), and, when read together with the other
information in the Registration Statement, the General Disclosure
Package or the Prospectus, as the case may be, at the original
effectiveness of the Registration Statement, at the earlier of the
time the Prospectus was first used and the date and time of the
first contract of sale of the Shares, at the First Time of Delivery
and at each Additional Time of Delivery (if any) (as defined
below), did not and will not contain an untrue statement of a
material fact or omit to state a material fact required to
be
5
stated therein
or necessary to make the statements therein, in the light of the
circumstances under which they were made, not
misleading;
(iv) The
financial statements included, incorporated by reference or deemed
to be incorporated by reference in the Registration Statement, the
General Disclosure Package and the Prospectus, together with the
related schedules and notes, present fairly the consolidated
financial position of the Company and its subsidiaries, as of and
at the dates indicated and the results of their operations,
shareholders’ equity and cash flows of the Company and its
consolidated subsidiaries, for the periods specified; such
financial statements, unless otherwise noted therein, have been
prepared in conformity with generally accepted accounting
principles as applied in the United States (“GAAP”)
applied on a consistent basis throughout the periods involved; the
supporting schedules, if any, included, incorporated by reference
or deemed to be incorporated by reference in the Registration
Statement, the General Disclosure Package and the Prospectus
present fairly the information shown therein and have been compiled
on a basis consistent with that of the audited financial statements
included, incorporated by reference or deemed to be incorporated by
reference in the Registration Statement, the General Disclosure
Package and the Prospectus; no other financial statements or
supporting schedules are required under the Act, the 1933 Act
Regulations, the Exchange Act or the 1934 Act Regulations to be
included in the Registration Statement, the General Disclosure
Package or the Prospectus; the selected financial data and the
summary financial information included, incorporated by reference
or deemed to be incorporated by reference in the Registration
Statement, the General Disclosure Package and the Prospectus fairly
present the information therein and have been compiled on a basis
consistent with that of the audited financial statements included,
incorporated by reference or deemed to be incorporated by reference
in the Registration Statement, the General Disclosure Package and
the Prospectus. Except as included therein, no historical or
pro-forma financial statements are required to be included in the
Registration Statement, the General Disclosure Package or the
Prospectus under the Act, the 1933 Act Regulations, the Exchange
Act or the 1934 Act Regulations. To the extent applicable, all
disclosures contained in the Registration Statement, the General
Disclosure Package or the Prospectus regarding “non-GAAP
financial measures” (as such term is defined by the rules and
regulations of the Commission) comply with Regulation G of the
Exchange Act, the rules and regulations promulgated by the
Commission thereunder and Item 10 of Regulation S-K under
the Act;
(v) Crowe
Horwath LLP, the independent registered public accounting firm that
certified the financial statements and supporting schedules
included, incorporated by reference or deemed to be incorporated by
reference in the Registration Statement, the General Disclosure
Package and the Prospectus are independent public accountants as
required by the Act, the 1933 Act Regulations, the Exchange Act,
the 1934 Act Regulations and the Public Company Accounting
Oversight Board (United States), and such accountant is not and has
not been in violation of the auditor independence requirements of
the Sarbanes-Oxley Act of 2002 and the rules and regulations
promulgated in connection therewith (collectively, the
“Sarbanes-Oxley Act”) and the related rules and
regulations of the Commission in respect of the Company; Crowe
Horwath LLP has audited the Company’s internal control over
financial reporting;
(vi) The
statistical and market related data contained, incorporated by
reference or deemed to be incorporated by reference in the
Registration Statement, the General
6
Disclosure
Package or the Prospectus are based on or derived from sources
which the Company believes are reliable and accurate;
(vii) This
Agreement has been duly authorized, executed and delivered by the
Company and, when duly executed by the Representative, will
constitute a valid and binding agreement of the Company enforceable
against the Company in accordance with its terms, except as
enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or
affecting creditors’ rights generally or by general equitable
principles and except as any indemnification or contribution
provisions thereof may be limited under applicable securities
laws;
(viii) Since
the date of the latest audited financial statements included,
incorporated by reference or deemed to be incorporated by reference
in the Registration Statement, the General Disclosure Package and
the Prospectus, (A) neither the Company nor any of its
subsidiaries has sustained any material 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, otherwise than as set forth
or contemplated in the Registration Statement, the General
Disclosure Package and the Prospectus, (B) there has not been
any material change in the capital stock, other equity interests or
long-term debt of the Company or any of its subsidiaries,
(C) there has not been any material adverse change, or any
development that may cause a prospective material adverse change,
in or affecting the general affairs, management, earnings,
business, properties, assets, current or future consolidated
financial position, business prospects, stockholders’ equity
or results of operations of the Company and its subsidiaries
considered as one enterprise, whether or not arising in the
ordinary course of business, and there has been no effect with
respect to the Company and its subsidiaries considered as one
enterprise, which would prevent, or be reasonably likely to
prevent, the Company from consummating the transaction contemplated
by this Agreement (any event described in this clause C, a
“Material Adverse Effect”), (D) there have been no
transactions entered into by the Company or any of its
subsidiaries, other than those in the ordinary course of business,
which are material with respect to the Company and its subsidiaries
considered as one enterprise, otherwise than as set forth or
contemplated in the Registration Statement, the General Disclosure
Package and the Prospectus, and (E) except for the quarterly
dividend on the Common Stock of $0.07 per share announced on
July 27, 2009, there has been no dividend or distribution of
any kind declared, paid or made by the Company on any class of its
capital stock;
(ix) The
Company and its subsidiaries have good and marketable title in fee
simple to all real property and good and marketable title to all
personal property owned by them, in each case free and clear of all
mortgages, pledges, security interests, claims, restrictions,
liens, encumbrances and defects except such as are described in the
Registration Statement, the General Disclosure Package and the
Prospectus or such as do not materially affect the value of such
property and do not interfere with the use made and proposed to be
made of such property by the Company and its subsidiaries; and any
real property and buildings held under lease by the Company and its
subsidiaries are held by them under valid, subsisting and
enforceable leases with such exceptions as are not material and do
not interfere with the use made and proposed to be made of such
property and buildings by the Company and its subsidiaries, and
neither the Company nor any of its subsidiaries has any written, or
to the Company’s knowledge, oral notice
7
of any material
claim of any sort that has been asserted by anyone adverse to the
rights of the Company or any of its subsidiaries under any of the
leases or subleases mentioned above, or affecting or questioning
the rights of the Company or any such subsidiary to the continued
possession of the leased or subleased premises under any such lease
or sublease. Such property is valued on the books of the Company
and its subsidiaries in accordance with GAAP;
(x) The
Company is duly registered as a bank holding company and qualified
as a financial holding company under the Bank Holding Company Act
of 1956, as amended (the “BHCA”) with respect to Old
National Bank (the “Bank”) and has been duly
incorporated and is validly existing as a corporation under the
laws of the State of Indiana, with the corporate power and
authority to own, lease and operate its properties and to conduct
its business as described in the Registration Statement, the
General Disclosure Package and the Prospectus and to enter into and
perform its obligations under this Agreement; the Company has paid
any franchise taxes, fees or other similar payments required to be
paid to the State of Indiana in connection with, or resulting from,
its incorporation in the State of Indiana, and any charters,
bylaws, organizational or similar documents required to be filed
with the Indiana Secretary of State in connection with, or
resulting from, its incorporation in the State of Indiana have been
so filed; the Company is duly qualified as a foreign corporation to
transact business and is in good standing in each other
jurisdiction in which such qualification is required, whether by
reason of the ownership or leasing of property or the conduct of
business, except where the failure to so qualify or to be in good
standing would not reasonably be expected to result in a Material
Adverse Effect;
(xi) Each
subsidiary of the Company has been duly organized and is validly
existing as a corporation, limited liability company, trust
company, statutory business trust or bank in good standing under
the laws of the jurisdiction of its organization and has the
corporate power and authority to own, lease and operate its
properties and to conduct its business as described in the
Registration Statement, the General Disclosure Package and the
Prospectus; each subsidiary of the Company is duly qualified as a
foreign corporation to transact business and is in good standing in
each other jurisdiction in which such qualification is required,
whether by reason of the ownership or leasing of property or the
conduct of business, except for such jurisdictions where the
failure to so qualify, or be in good standing, would not, singly or
in the aggregate, result in a Material Adverse Effect; all of the
issued and outstanding capital stock of each subsidiary of the
Company has been duly authorized and validly issued, is fully paid
and non-assessable and is owned by the Company, directly or through
subsidiaries; the Company owns, directly or through subsidiaries,
the issued and outstanding capital stock of each subsidiary of the
Company free and clear of any security interest, mortgage, pledge,
lien, encumbrance, claim or equity; 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 fiscal
year ended December 31, 2008; none of the outstanding shares
of capital stock or other equity interest of any subsidiary was
issued in violation of the preemptive or similar rights of any
security holder or equity holder of such subsidiary; the activities
of the subsidiaries of the Bank are permitted to subsidiaries of a
national banking association; and the deposit accounts of the Bank
are insured to the fullest extent permitted by law and the rules
and regulations of the Federal Deposit Insurance Corporation (the
“FDIC”), and no proceedings for the termination of such
insurance are pending or, to the knowledge of the Company,
threatened;
8
(xii) The
Company has an authorized capitalization as set forth in each of
the Registration Statement, the General Disclosure Package and the
Prospectus under the heading “Capitalization,” and all
of the issued shares of capital stock of the Company have been duly
and validly authorized and issued, are fully paid and
non-assessable and have been issued in compliance with federal and
state securities laws; none of the outstanding shares of capital
stock of the Company were issued in violation of any preemptive
rights, rights of first refusal or other similar rights to
subscribe for or purchase securities of the Company; the
description of the Company’s Shareholder Rights Plan, and
stock option, stock bonus and other stock plans or arrangements and
the options or other rights granted thereunder, set forth or
incorporated by reference in the Registration Statement, the
General Disclosure Package and the Prospectus, accurately and
fairly presents, in all material respects, the information required
to be shown with respect to such plans, arrangements, options and
rights;
(xiii) The
Shares have been duly authorized for issuance and sale to the
Underwriters pursuant to this Agreement and, when issued and
delivered by the Company pursuant to this Agreement against payment
of the consideration set forth herein, will be validly issued,
fully paid and non-assessable, and the issuance of the Shares is
not subject to any preemptive right, co-sale right, right of first
refusal or other similar right arising under applicable law, under
the charter or bylaws of the Company or under any agreement to
which the Company or any of its subsidiaries is a party or
otherwise. The Shares conform to all statements relating thereto
contained in the Registration Statement, the General Disclosure
Package and the Prospectus and such description conforms to the
rights set forth in the instruments defining the same. No holder of
the Shares will be subject to personal liability by reason of being
such a holder. The form of certificate used to evidence the Shares
complies with all applicable legal requirements, requirements of
the Company’s Amended and Restated Certificate of
Incorporation, dated as of December 10, 2008 (with respect to
the Company, the “charter”), and the Amended and
Restated Bylaws of the Company, effective as of July 23, 2009
(with respect to the Company, the “bylaws”), and
requirements of the New York Stock Exchange (the
“NYSE”);
(xiv) (A) Except
for certain options outstanding in connection with employee benefit
plans which have been disclosed in the Registration Statement, the
General Disclosure Package and the Prospectus, there are no
outstanding rights (contractual or otherwise), warrants or options
to acquire, or instruments convertible into or exchangeable for, or
agreements or understandings with respect to the sale or issuance
of, any shares of capital stock of or other equity interest in the
Company; and (B) there are no contracts, agreements or
understandings between the Company and any person granting such
person the right to require the Company to file a registration
statement under the Act or otherwise register for resale any
securities of the Company owned or to be owned by such
person;
(xv) The
execution, delivery and performance of this Agreement, the issuance
and sale of the Shares by the Company and the compliance by the
Company with all of the provisions of this Agreement and the
consummation of the transactions contemplated herein and in the
Registration Statement, the General Disclosure Package and the
Prospectus (including the use of proceeds from the sale of the
Shares as described therein) have been duly authorized by all
necessary corporate action on the part of the Company and do not
and will not, whether with or without the giving of notice or
passage of time or both, conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a
default or result in a Repayment
9
Event (as
defined below) under, or result in the creation or imposition of
any lien, charge or encumbrance upon any property or assets of the
Company or any of its subsidiaries pursuant to, (i) any indenture,
mortgage, deed of trust, loan or credit agreement, note, lease 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) the
provisions of the articles of incorporation, certificate of
incorporation, articles of association, articles of organization,
or charter (as applicable) or bylaws of the Company or any of its
subsidiaries or (iii) any statute or any order, rule or
regulation of any federal, state, local or foreign court,
arbitrator, regulatory authority, government or governmental agency
(each a “Governmental Entity”) or body having
jurisdiction over the Company or any of its subsidiaries or any of
their properties, assets or operations, except, with respect to
clause (i), for those conflicts, breaches, violations, defaults,
liens, charges, encumbrances or Repayment Events that would not,
singly or in the aggregate, result in a Material Adverse Effect;
and no filing with, or consent, approval, authorization, order,
license, registration, qualification or decree of or with any
Governmental Entity is necessary or required in connection with the
due authorization, execution and delivery of this Agreement or for
the offering, issuance, sale or delivery of the Shares, the
performance by the Company of its obligations hereunder or the
consummation by the Company of the transactions contemplated by
this Agreement, except as may be required under the securities or
Blue Sky laws of the various states and other jurisdictions in
connection with the purchase and distribution of the Shares by the
Underwriters. As used herein, a “Repayment Event” means
any event or condition that gives the holder of any note, debenture
or other evidence of indebtedness (or any person acting on such
holder’s behalf) the right to require the repurchase,
redemption or repayment of all or a portion of such indebtedness by
the Company or any of its subsidiaries;
(xvi) Neither
the Company nor any of its subsidiaries is in violation of its
articles of incorporation, certificate of incorporation, articles
of association, articles of organization, or charter (as
applicable) or bylaws or in default in the performance or
observance of any obligation, agreement, covenant or condition
contained in any indenture, mortgage, deed of trust, loan or credit
agreement, note, lease or other agreement or instrument to which it
is a party or by which it or any of its properties may be bound or
to which any of the property or assets of the Company or any
subsidiary is subject except for such defaults that would not,
singly or in the aggregate, result in a Material Adverse
Effect;
(xvii) The
statements set forth in the preliminary prospectus and the
Prospectus under the captions “Capitalization,”
“Dividend Policy,” “Description of Capital
Stock,” “Risk Factors—Risks Related to this
Offering—We may not be able to pay dividends on our common
stock in the future in accordance with past practice,”
“Risk Factors—Risks Related to this Offering—If
we defer payments of interest on our outstanding junior
subordinated debt securities or if certain defaults relating to
those debt securities occur, we will be prohibited from declaring
or paying dividends or distributions on, and from making
liquidation payments with respect to, our common stock,”
“Risk Factors—Risks Related to this
Offering—Anti-takeover provisions could negatively impact our
shareholders,” insofar as such statements contain
descriptions of laws, rules or regulations, or insofar as they
describe the terms of the securities or agreements or the
Company’s charter or bylaws, are correct in all material
respects, and under the caption “Underwriting,” insofar
as they purport to describe the provisions of the laws and
documents referred to therein, and in the Company’s most
recent Form 10-K and Form 10-Q
10
under
“Item 3. Legal Proceedings,” to the extent that
they constitute matters of law, summaries of legal matters, the
Company’s charter or bylaws or legal proceedings, or legal
conclusions, the information in the Company’s most recent
Form 10-K under “Item 11. Executive Compensation,”
“Item 12. Security Ownership of Certain Beneficial
Owners and Management and Related Stockholder Matters,” and
“Item 13. Certain Relationships and Related
Transactions,” to the extent that it constitutes matters of
law, summaries of legal matters, the Company’s charter or
bylaws or legal proceedings, or legal conclusions, are accurate and
complete; the statements in the preliminary prospectus supplement
and the Prospectus under the heading “Certain U.S. Federal
Tax Considerations for Non-U.S. Holders of Our Common Stock,”
to the extent that they constitute summaries of federal law or
regulation or legal conclusions fairly and accurately summarize the
matters described under that heading in all material respects; the
form of certificate used to evidence the Shares will be in
substantially the form filed or incorporated by reference, as the
case may be, as an exhibit to the Registration Statement, and such
form complies with all applicable legal requirements, requirements
of the Company’s charter and bylaws and requirements of the
NYSE;
(xviii) The
Company and its subsidiaries are conducting their respective
businesses in compliance, in all material respects, with all
federal, state, local and foreign statutes, laws, rules,
regulations, decisions, directives and orders applicable to them
(including, without limitation, all regulations and orders of, or
agreements with, the Board of Governors of the Federal Reserve
System (the “FRB”), the Office of the Comptroller of
the Currency (the “OCC”), the FDIC and the Indiana
Department of Insurance), the Equal Credit Opportunity Act, the
Fair Housing Act, the Community Reinvestment Act, the Home Mortgage
Disclosure Act, all other applicable fair lending laws or other
laws relating to discrimination and the Bank Secrecy Act and Title
III of the USA Patriot Act), and neither the Company nor any of its
subsidiaries has received any written, or to the Company’s
knowledge, oral communication from any Governmental Entity
asserting that the Company or any of its subsidiaries is not in
compliance with any statute, law, rule, regulation, decision,
directive or order;
(xix) There
are no legal or governmental actions or suits, investigations,
inquiries or proceedings before or by any court or Governmental
Entity, now pending or, to the knowledge of the Company, threatened
or contemplated, to which the Company or any of its subsidiaries is
a party or of which any property of the Company or any of its
subsidiaries is the subject (A) that is required to be
disclosed in the Registration Statement, the preliminary
prospectus, the General Disclosure Package or the Prospectus by the
Act or the 1933 Act Regulations and not disclosed therein or (B)
which, if determined adversely to the Company or any of its
subsidiaries, would be, singly or in the aggregate, reasonably
expected to have a Material Adverse Effect; and there are no
contracts or documents of the Company or any of its subsidiaries
which would be required to be described in the Registration
Statement, the preliminary prospectus, the General Disclosure
Package or the Prospectus or to be filed as exhibits thereto by the
Act or by the 1933 Act Regulations which have not been so described
and filed;
(xx) Each
of the Company and its subsidiaries possess all permits, licenses,
approvals, consents and other authorizations of (collectively,
“Governmental Licenses”), and has made all filings,
applications and registrations with, all Governmental Entities to
permit the Company or such subsidiary to conduct the business now
operated by the
11
Company or its
subsidiaries; the Company and its subsidiaries are in compliance
with the terms and conditions of all such Governmental Licenses,
except where the failure so to comply would not, singly or in the
aggregate, have a Material Adverse Effect; all of the Governmental
Licenses are valid and in full force and effect, except where the
invalidity of such Governmental Licenses or the failure of such
Governmental Licenses to be in full force and effect would not,
singly or in the aggregate, have a Material Adverse Effect; and
neither the Company nor any of its subsidiaries has received any
notice of proceedings relating to the revocation or modification of
any such Governmental Licenses which, singly or in the aggregate,
if the subject of an unfavorable decision, ruling or finding, would
result in a Material Adverse Effect; neither the Company nor any of
its subsidiaries has failed to file with applicable Governmental
Entities any statement, report, information or form required by any
applicable law, regulation or order, except where the failure to be
in such compliance would not, singly or in the aggregate, result in
a Material Adverse Effect, all such filings were in material
compliance with applicable laws when filed and no material
deficiencies have been asserted by any Governmental Entity with
respect to any such filings or submissions;
(xxi) To
the knowledge of the Company and its subsidiaries, no change in any
law or regulation is pending that would reasonably be expected to
result, singly or in the aggregate, in a Material Adverse Effect,
except as described in the Registration Statement, the General
Disclosure Package and the Prospectus;
(xxii) Except
as would not, singly or in the aggregate, result in a Material
Adverse Effect, (A) neither the Company nor any of its
subsidiaries is in violation of any federal, state or local, or
foreign, statute, law, rule, regulation, ordinance, code, policy or
rule of common law or any judicial or administrative interpretation
thereof, including any judicial or administrative order, consent,
decree or judgment, relating to pollution or protection of human
health, the environment (including, without limitation, ambient
air, surface water, groundwater, land surface or subsurface strata)
or wildlife, including, without limitation, laws and regulations
relating to the release or threatened release of chemicals,
pollutants, contaminants, wastes, toxic substances, hazardous
substances, petroleum or petroleum products, asbestos-containing
materials or mold (collectively, “Hazardous Materials”)
or to the manufacture, processing, distribution, use, treatment,
storage, disposal, transport or handling of Hazardous Materials
(collectively, “Environmental Laws”), (B) the Company
and its subsidiaries have all permits, authorizations and approvals
required under any applicable Environmental Laws and are each in
compliance with their requirements, and (C) there are no
pending or, to the Company’s knowledge, threatened
administrative, regulatory or judicial actions, suits, demands,
demand letters, claims, liens, notices of noncompliance or
violation, investigation or proceedings relating to any
Environmental Law against the Company or any of its
subsidiaries;
(xxiii) The
Company and each of its subsidiaries owns or possesses adequate
rights to use, or can acquire on reasonable terms ownership or
rights to use, all material patents, patent applications, patent
rights, licenses, trademarks, service marks, trade names, trademark
registrations, service mark registrations, copyrights, know-how
(including trade secrets and other unpatented and/or unpatentable
proprietary or confidential information, systems or procedures) and
licenses (collectively, “Intellectual Property”)
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 infringement or
12
conflict with,
any such rights of others or any facts or circumstances that would
render any Intellectual Property invalid or inadequate to protect
the interest of the Company or any of its subsidiaries therein,
except where such infringement or conflict (if the subject of any
unfavorable decision, ruling or finding) or invalidity or
inadequacy, singly or in the aggregate, would not result in a
Material Adverse Effect;
(xxiv) No
relationship, direct or indirect, exists between or among the
Company or any of its subsidiaries on the one hand, and the
directors, officers, shareholders, customers or suppliers of the
Company or any of its subsidiaries on the other hand, which is
required to be described in the Registration Statement, the General
Disclosure Package or the Prospectus by the Act, the 1933 Act
Regulations, the Exchange Act or the 1934 Act Regulations which has
not been described as required;
(xxv) The
Company is not and, after giving effect to the offering and sale of
the Shares and after receipt of payment for the Shares and the
application of such proceeds as described in the Prospectus, will
not be an “investment company” or an entity
“controlled” by an “investment company,” as
such terms are defined in the Investment Company Act of 1940, as
amended (the “Investment Company Act”);
(xxvi) There
is and has been no failure on the part of the Company or any of the
Company’s directors or officers, in their capacities as such,
to comply in all material respects with any provision of the
Sarbanes-Oxley Act, including, without limitation, Section 402
related to loans and Sections 302 and 906 related to
certifications;
(xxvii) Neither
the Company nor any of its subsidiaries, nor any affiliates of the
Company or its subsidiaries, nor, to the knowledge of the Company,
any director, officer, employee or agent or other person associated
with or acting on behalf of the Company or any of its subsidiaries
or controlling person of the Company or its subsidiaries or any
affiliate of the Company or its subsidiaries, has taken or will
take, directly or indirectly, any action that has constituted or is
designed to or that might be reasonably expected to result in a
violation of Regulation M under the Exchange Act or to cause
or result in the stabilization or manipulation of the price of any
security to facilitate the sale or resale of the Shares;
(xxviii) Neither
the Company nor any of its subsidiaries nor, to the Company’s
knowledge, any director, officer, employee or agent or other person
associated with or acting on behalf of the Company or any of its
subsidiaries has (A) used any corporate funds for any unlawful
contribution, gift, entertainment or other unlawful expense
relating to political activity; (B) made any direct or
indirect unlawful payment to any foreign or domestic government
official or employee from corporate funds; (C) violated or is
in violation of any provision of the Foreign Corrupt Practices Act
of 1977; or (D) made any bribe, rebate, payoff, influence
payment, kickback or other unlawful payment;
(xxix) The
Company and each of its subsidiaries maintains effective internal
control over financial reporting (as defined in Rule 13a-15(f)
and Rule 15d-15(f) of the 1934 Act Regulations) and a system
of internal accounting controls sufficient to provide reasonable
assurances that (A) transactions are executed in accordance with
management’s general or specific authorization; (B)
transactions are recorded as necessary to permit
preparation
13
of financial
statements in conformity with GAAP and to maintain accountability
for assets; (C) access to assets is permitted only in accordance
with management’s general or specific authorization; and
(D) the recorded accounting for assets is compared with
existing assets at reasonable intervals and appropriate action is
taken with respect to any differences. Since the end of the
Company’s most recent audited fiscal year, there has been
(x) no material weakness in the Company’s internal
control over financial reporting (whether or not remediated) and
(y) no change in the Company’s internal control over
financial reporting that has materially affected, or is reasonably
likely to materially affect, the Company’s internal control
over financial reporting;
(xxx) The
Company has established and maintains disclosure controls and
procedures (as such term is defined in Rule 13a-15(e) and
15d-15(e) of the 1934 Act Regulations), which (A) are designed
to ensure that information required to be disclosed by the Company
in the reports that it files or submits under the Exchange Act is
recorded, processed, summarized and reported within the time
periods specified in the Commission’s rules and forms and
that material information relating to the Company and its
subsidiaries is made known to the Company’s principal
executive officer and principal financial officer by others within
the Company and its subsidiaries to allow timely decisions
regarding disclosure, and (B) are effective in all material
respects to perform the functions for which they were established.
Based on the evaluation of the Company’s and each
subsidiary’s disclosure controls and procedures described
above, the Company is not aware of (x) any significant deficiency
in the design or operation of internal controls which could
adversely affect the Company’s ability to record, process,
summarize and report financial data or any material weaknesses in
internal controls or (y) any fraud, whether or not material,
that involves management or other employees who have a significant
role in the Company’s internal controls. Since the most
recent evaluation of the Company’s disclosure controls and
procedures described above, there have been no significant changes
in internal controls or in other factors that could significantly
affect internal controls;
(xxxi) Neither
the Company nor any of its subsidiaries is subject or is party to,
or has received any notice or advice that any of them may become
subject or party to, any investigation with respect to, any
corrective, sus
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