HUNTINGTON BANCSHARES
INCORPORATED
Common Stock
($0.01 par value per share)
Goldman, Sachs
& Co.
85 Broad Street
New York, New York 10004
As
Representatives of the several Underwriters
named in Schedule I hereto
Huntington
Bancshares Incorporated, a Maryland corporation (the “
Company ”), proposes, subject to the terms and
conditions stated herein, to issue and sell to you, as the
representatives of the several underwriters (the “
Underwriters ”), 95,238,000 shares (the “
Firm Securities ”) of common stock ($0.01 par value
per share) of the Company (the “ Common Stock ”)
and, at the election of the Underwriters, up to 14,285,700
additional shares (the “ Optional Securities ”),
of Common Stock (the Firm Securities and the Optional Securities
that the Underwriters elect to purchase pursuant to Section 2
being collectively called the “ Securities
”).
Capitalized
terms used herein and not otherwise defined but that are defined in
the Pricing Prospectus (as defined in Section 1(a)), have the
meanings specified in the Pricing Prospectus.
1.
Representations and Warranties . The Company represents and
warrants to, and agrees with, the Underwriters as
follows:
(a) An
“automatic shelf registration statement” as defined
under Rule 405 under the Securities Act of 1933, as amended
(the “ Act ”), on Form S-3 (File Nos.
333-156700, 333-156700-01, 333-156700-02, 333-156700-03 and
333-156700-04) in respect of the Securities has been filed with the
Securities and Exchange Commission (the “ Commission
”) not earlier than three years prior to the date hereof;
pursuant to the Act, such registration statement, and any
post-effective amendment thereto, became effective on filing; and
no stop order suspending the effectiveness of such registration
statement or any part thereof has been issued and no proceeding for
that purpose has been initiated or threatened by the Commission,
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) under the Act has been received by the
Company (the base prospectus filed as part of such registration
statement, in the form in which it has most recently been filed
with the Commission on or prior to the date of this Agreement, is
hereinafter called the “ Basic Prospectus ”; any
preliminary prospectus (including any preliminary prospectus
supplement) relating to the Securities filed with the Commission
pursuant to Rule 424(b) under the Act is hereinafter called a
“ Preliminary Prospectus ”; the various parts of
such registration statement, including all exhibits thereto, and
including any prospectus supplement relating to the Securities that
is filed with the Commission and deemed by virtue of Rule 430B
to be part of such registration statement, each as amended at the
time such part of the registration statement became effective, are
hereinafter collectively called the “ Registration
Statement ”; the Basic Prospectus, as amended and
supplemented immediately
prior to the
Applicable Time (as defined in Section 1(c)), is hereinafter
called the “ Pricing Prospectus ”; the form of
the final prospectus relating to the Securities filed with the
Commission pursuant to Rule 424(b) under the Act in accordance with
Section 5(A)(a) is hereinafter called the “
Prospectus ”; any reference herein to the Basic
Prospectus, the Pricing Prospectus, any Preliminary Prospectus or
the Prospectus shall be deemed to refer to and include the
documents incorporated by reference therein pursuant to
Item 12 of Form S-3 under the Act, as of the date of such
prospectus; any reference to any amendment or supplement to the
Basic Prospectus, any Preliminary Prospectus or the Prospectus
shall be deemed to refer to and include any post-effective
amendment to the Registration Statement, any prospectus supplement
relating to the Securities filed with the Commission pursuant to
Rule 424(b) under the Act and any documents filed under the
Securities Exchange Act of 1934, as amended (the “
Exchange Act ”), and incorporated therein, in each
case after the date of the Basic Prospectus, such Preliminary
Prospectus or the Prospectus, as the case may be; any reference to
any amendment to the Registration Statement shall be deemed to
refer to and include any annual report of the Company filed
pursuant to Section 13(a) or 15(d) of the Exchange Act after the
effective date of the Registration Statement that is incorporated
by reference in the Registration Statement; and any “issuer
free writing prospectus” as defined in Rule 433 under
the Act relating to the Securities is hereinafter called an “
Issuer Free Writing Prospectus ”);
(b) No order
preventing or suspending the use of any Preliminary Prospectus or
any Issuer Free Writing Prospectus has been issued by the
Commission, and each Preliminary Prospectus, at the time of filing
thereof, conformed in all material respects to the requirements of
the Act, and the rules and regulations of the Commission
thereunder, and did not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein
or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided,
however, that this representation and warranty shall not apply to
any statements or omissions made in reliance upon and in conformity
with information furnished in writing to the Company by an
Underwriter through the Representatives expressly for use therein,
which information is limited to the information set forth in
Section 8(f);
(c) For the
purposes of this Agreement, the “ Applicable Time
” is 8:20 a.m. (Eastern time) on the date of this Agreement;
the Pricing Prospectus as of the Applicable Time, did not include
any untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not
misleading; and each Issuer Free Writing Prospectus listed on
Schedule II does not conflict with the information contained
in the Registration Statement, the Pricing Prospectus or the
Prospectus and each such Issuer Free Writing Prospectus, as
supplemented by and taken together with the Pricing Prospectus as
of the Applicable Time, did not include any untrue statement of a
material fact or omit to state any material fact necessary in order
to make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided, however, that
this representation and warranty shall not apply to statements or
omissions made in an Issuer Free Writing Prospectus in reliance
upon and in conformity with information furnished in writing to the
Company by an Underwriter through the Representatives expressly for
use therein, which information is limited to the information set
forth in Section 8(f);
(d) The
documents incorporated by reference in the Pricing Prospectus and
the Prospectus, when they became effective or were filed with the
Commission, as the case may be, conformed in all material respects
to the requirements of the Act or the Exchange Act, as applicable,
and the rules and regulations of the Commission thereunder, and
none of such documents contained an untrue statement of a material
fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading;
any further documents so filed and incorporated by reference in the
Prospectus or any further amendment or supplement thereto, when
such documents become effective or
2
are filed with
the Commission, as the case may be, will conform in all material
respects to the requirements of the Act or the Exchange Act, as
applicable, and the rules and regulations of the Commission
thereunder and will not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein
or necessary to make the statements therein not misleading;
provided, however, that this representation and warranty shall not
apply to any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Company by
an Underwriter through the Representatives expressly for use
therein, which information is limited to the information set forth
in Section 8(f); and no such documents were filed with the
Commission since the Commission’s close of business on the
business day immediately prior to the date of this Agreement and
prior to the execution of this Agreement, except as set forth on
Schedule II;
(e) The
Registration Statement conforms, and the Prospectus and any further
amendments or supplements to the Registration Statement and the
Prospectus will conform, in all material respects to the
requirements of the Act and the rules and regulations of the
Commission thereunder and do not and will not, as of the applicable
effective date as to each part of the Registration Statement and as
of the applicable filing date as to the Prospectus and any
amendment or supplement thereto, 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, however, that this representation and
warranty shall not apply to any statements or omissions made in
reliance upon and in conformity with information furnished in
writing to the Company by an Underwriter through the
Representatives expressly for use therein, which information is
limited to the information set forth in
Section 8(f);
(f) (i) Neither
the Company nor any of its Significant Subsidiaries (as defined
below) has sustained since the date of the latest audited financial
statements included or incorporated by reference in the Pricing
Prospectus 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 Pricing Prospectus; and (ii) since the
respective dates as of which information is given in the
Registration Statement and the Pricing Prospectus, there has not
been any material adverse change in the capital stock or long-term
debt of the Company or any of its Significant Subsidiaries or any
material adverse change, or any development involving a prospective
material adverse change, in or affecting the general affairs,
management, financial position, stockholders’ equity or
results of operations of the Company and its subsidiaries,
considered as a whole, otherwise, in any such case described in
clause (i) or (ii), than as set forth or contemplated in the
Pricing Prospectus;
(g) The
Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of
Maryland, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Pricing
Prospectus, and has been duly qualified as a foreign corporation
for the transaction of business and is in good standing under the
laws of each other jurisdiction in which it owns or leases
properties or conducts any business so as to require such
qualification, except where the failure to so qualify or be in good
standing would not, individually or in the aggregate, have a
material adverse effect on the current or future financial
position, stockholders’ equity or results of operations of
the Company and its subsidiaries, considered as a whole (a “
Material Adverse Effect ”). Each significant
subsidiary (as defined in Rule 405 under the Act) of the
Company as set forth on Schedule III (each, a “
Significant Subsidiary ”) has been duly constituted
and is validly existing as a corporation, limited liability
company, national banking association or business trust, as
applicable, in good standing under the laws of its jurisdiction of
incorporation or formation;
(h) 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 “ BHC Act
”);
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(i) The
Company and each of its subsidiaries are in compliance with all
laws administered by the Board of Governors of the Federal Reserve
System (the “ Federal Reserve Board ”), the
Office of the Comptroller of the Currency (the “ OCC
”), the Federal Deposit Insurance Corporation (“
FDIC ”) and any other federal or state bank regulatory
authorities (together with the Federal Reserve Board, the OCC and
the FDIC, the “ Bank Regulatory Authorities ”)
with jurisdiction over the Company or any of its subsidiaries,
except for failures to be so in compliance that would not
individually or in the aggregate have a Material Adverse
Effect;
(j) The
Company has an authorized capitalization as set forth in the
Pricing Prospectus; and all of the issued shares of capital stock,
including the Common Stock, have been duly authorized and validly
issued, are fully paid and non-assessable, have been issued in
compliance with all applicable securities laws and were not issued
in violation of any preemptive or similar right; the
Company’s Common Stock has been registered pursuant to
Section 12(b) of the Exchange Act, and the outstanding shares of
Common Stock are listed on the NASDAQ Global Select Market (“
NASDAQ ”), and the Company has taken no action
designed to, or likely to have the effect of, terminating the
registration of the Common Stock from the NASDAQ, nor has the
Company received any notification that the Commission or the NASDAQ
is contemplating terminating such registration or
listing;
(k) All of
the issued shares of capital stock of each Significant Subsidiary
that is a corporation or association have been duly and validly
authorized and issued, are fully paid and non-assessable and
(except for directors’ qualifying shares or as listed in
Schedule III) are owned directly or indirectly by the Company,
free and clear of all liens, encumbrances, equities or
claims;
(l) The
Securities have been duly and validly authorized by the Company for
issuance and sale pursuant to this Agreement by the Company, and,
when duly issued and delivered against payment therefor at each
Time of Delivery as contemplated by the Pricing Prospectus, will be
validly issued, fully paid and non-assessable; upon payment of the
purchase price and delivery of the Securities in accordance
herewith, the Underwriters will receive good, valid and marketable
title to the Securities, free and clear of all security interests,
mortgages, pledges, liens, encumbrances, claims and restrictions;
no holder of the Securities will be subject to personal liability
solely by reason of being such a holder; and the issuance of the
Securities will not be subject to preemptive or similar
rights;
(m) The
capital stock of the Company, including the Securities, conformed
in all material respects to each description thereof, if any,
contained or incorporated by reference in the Registration
Statement, any Basic Prospectus, any Preliminary Prospectus, the
Pricing Prospectus, the Prospectus or any Permitted Free Writing
Prospectus as of the applicable effective date as to each part of
the Registration Statement and as of the applicable filing date as
to any Basic Prospectus, any Preliminary Prospectus, the Pricing
Prospectus, the Prospectus or any Permitted Free Writing
Prospectus; and the certificates for the Securities meet the
requirements thereof under the Company’s Bylaws;
(n) This
Agreement has been duly authorized, executed and delivered by the
Company;
(o) The
issuance and sale of the Securities, the compliance by the Company
with its obligations hereunder and the consummation of the
transactions contemplated herein by the Company will not
(i) whether with or without the giving of notice or lapse of
time or both, conflict with or constitute a breach or violation of,
or default or Repayment Event under, or result in the creation or
imposition of any lien, charge or encumbrance upon any property or
assets of the Company or any Significant Subsidiary pursuant to the
terms of any material contract, indenture, mortgage, deed of trust,
loan or credit agreement, note, lease or any other agreement or
instrument to which the Company or any Significant Subsidiary is a
party or by which it or any of them is bound, or to which any of
the property or
4
assets of the
Company or any Significant Subsidiary is subject, or
(ii) result in any violation of the provisions of (A) the
Charter or the Bylaws of the Company or other organizational
documents of any Significant Subsidiary, or (B) any applicable
law, statute, rule, regulation, judgment, order, writ or decree of
any government, government instrumentality or court having
jurisdiction over the Company or any Significant Subsidiary or any
of their properties, assets or operations, except (in the case of
(i) or (ii)(B)) for conflicts, breaches, violations or
defaults which would not have a Material Adverse Effect; and no
filing with, or authorization, approval, consent, license, order,
registration, qualification or decree of, any court or governmental
authority or agency, domestic or foreign (other than under the Act,
which have been obtained, or as may be required under the
securities or Blue Sky laws of the various states or securities
regulations of foreign jurisdictions) is necessary or required in
connection with the issuance and sale of the Securities by the
Company or the consummation by the Company of the transactions
contemplated by this Agreement, except such as have been obtained
under the Act and such consents, approvals, authorizations,
registrations or qualifications as may be required under state
securities or Blue Sky laws or securities regulations of foreign
jurisdictions in connection with the purchase and distribution of
the Securities 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 Significant
Subsidiary;
(p) Neither
the Company nor any of its Significant Subsidiaries is (A) in
violation of its Charter, or comparable organizational documents,
(B) in violation of its Bylaws or (C) in default in the
performance or observance of any material obligation, agreement,
covenant or condition contained in any indenture, mortgage, deed of
trust, loan agreement, lease or other agreement or instrument to
which it is a party or by which it or any of its properties may be
bound, except where such defaults under (B) or (C) would
not individually or in the aggregate have a Material Adverse
Effect;
(q) The
statements set forth in the Pricing Prospectus and the Prospectus
under the captions “Description of Capital Stock—Common
Stock” and “Underwriting” (other than the
information provided by the Underwriters as specified in
Section 8(f)), insofar as they purport to describe the
provisions of the laws and documents referred to therein, fairly
summarize in all material respects the matters therein described;
the statements set forth in the Pricing Prospectus and the
Prospectus under the caption “Certain U.S. Federal Income Tax
Considerations”, insofar as they purport to summarize certain
laws specifically referred to therein, and subject to the
qualifications, exceptions, assumptions and limitations described
therein, fairly summarize in all material respects such
laws;
(r) Other
than as set forth in the Pricing Prospectus, there are no legal or
governmental proceedings pending to which the Company or any of its
Significant Subsidiaries is a party or of which any property of the
Company or any of its Significant Subsidiaries is the subject that,
individually or in the aggregate, would be reasonably expected to
have a Material Adverse Effect; and, to the Company’s
knowledge, no such proceedings are threatened;
(s) The
Company is not and, after giving effect to the offering and sale of
the Securities and the application of the proceeds thereof, will
not be required to be registered as an “investment
company”, as such term is defined in the Investment Company
Act of 1940, as amended (the “ Investment Company Act
”);
(t) To the
extent that the Registration Statement is not available for the
sales of the Securities as contemplated by this Agreement or the
Company is not a “well-known seasoned issuer” as
defined in Rule 405 under the Act or otherwise is unable to
make the representations set forth in Section 1(u) at any time when
such representations are required, the Company shall file a new
registration
5
statement with
respect to any additional Common Stock necessary to complete such
sales of the Securities and shall cause such registration statement
to become effective as promptly as practicable; after the
effectiveness of any such registration statement, all references to
“Registration Statement” included in this Agreement
shall be deemed to include such new registration statement,
including all documents incorporated by reference therein pursuant
to Item 12 of Form S-3, and all references to “Basic
Prospectus” included in this Agreement shall be deemed to
include the final form of prospectus, including all documents
incorporated therein by reference, included in any such
registration statement at the time such registration statement
became effective;
(u) (i) At
the time of filing the Registration Statement, (ii) 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 Sections 13 or 15(d) of the Exchange Act or
form of prospectus), (iii) at the time the Company or any
person acting on its behalf (within the meaning, for this clause
only, of Rule 163(c) under the Act) made any offer relating to the
Securities in reliance on the exemption in Rule 163 under the
Act, and (iv) at the execution of this Agreement and on each
such time this representation is repeated or deemed to be made
(with such date being used as the determination date for purposes
of this clause (iv)), the Company was or is (as the case may be) a
“well-known seasoned issuer” as defined in Rule 405
under the Act;
(v) (A)
(i) At the time of filing the Registration Statement,
(ii) 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), and (iii) at the time
the Company or any person acting on its behalf (within the meaning,
for this clause only, of Rule 163(c) under the Act) made any offer
relating to the Securities in reliance on the exemption of
Rule 163 under the Act, the Company was not an
“ineligible issuer” as defined in Rule 405 of the
Act; and (B) at the earliest time after the time of filing of
the Registration Statement that the Company or another offering
participant made a bona fide offer (within the meaning of
Rule 164(h)(2) under the Act) of the Securities and at the
date hereof, the Company was not and is not an “ineligible
issuer” as defined in Rule 405 under the Act;
(w) The
Registration Statement is not the subject of a pending proceeding
or examination under Section 8(d) or 8(e) of the Act, and the
Company is not the subject of a pending proceeding under
Section 8A of the Act in connection with the offering of the
Securities;
(x) The
Company has not entered into any other underwriting, sales agency
or distribution agreements or similar arrangements with any
underwriter, agent or other representative in respect of the
Securities;
(y) Deloitte
& Touche LLP, who has audited certain financial statements of
the Company and its subsidiaries and the effectiveness of the
Company’s internal control over financial reporting, is an
independent registered public accounting firm as required by the
Act and the rules and regulations of the Commission
thereunder;
(z) The
Company maintains a system of internal control over financial
reporting (as such term is defined in Rule 13a-15(f) under the
Exchange Act) that complies with the requirements of the Exchange
Act and has been designed by the Company’s principal
executive officer and principal financial officer, or under their
supervision, to provide reasonable assurance regarding the
reliability of financial reporting and the preparation of financial
statements for external purposes in accordance with generally
accepted accounting principles; the Company’s internal
control over financial reporting was effective as
6
of
December 31, 2008 and the Company is not aware of any material
weaknesses in its internal control over financial
reporting;
(aa) Since
the date of the latest audited financial statements included or
incorporated by reference in the Pricing Prospectus, there has been
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;
(bb) The
Company maintains disclosure controls and procedures (as such term
is defined in Rule 13a-15(e) under the Exchange Act) that comply
with the requirements of the Exchange Act; such disclosure controls
and procedures have been designed to ensure that material
information relating to the Company and its subsidiaries is made
known to the Company’s principal executive officer and
principal financial officer by others within those entities; and
such disclosure controls and procedures were effective as of
December 31, 2008;
(cc) Since
December 31, 2008, there has been no change in the
Company’s disclosure control and procedures that has
materially affected, or is reasonably likely to materially affect,
the Company’s disclosure control and procedures;
(dd) The
operations of the Company and its subsidiaries have been conducted
at all times in compliance with applicable financial record keeping
and reporting requirements of the Currency and Foreign Transactions
Reporting Act of 1970, as amended, the money laundering statutes of
all applicable jurisdictions, the rules and regulations thereunder
and any related or similar rules, regulations or guidelines,
issued, administered or enforced by any applicable governmental
agency (collectively, the “ Money Laundering Laws
”), except where the failure to so comply would not,
individually or in the aggregate, have a Material Adverse Effect,
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 that would, individually or in the aggregate, have a
Material Adverse Effect;
(ee) None of
the Company, any of its subsidiaries or, to the knowledge of the
Company, any director, officer, agent, employee of the Company (in
their capacities as such) or affiliate of the Company or any of its
subsidiaries is currently subject to any U.S. sanctions
administered by the Office of Foreign Assets Control of the U.S.
Department of the Treasury (“ OFAC ”); and the
Company will not use the proceeds of the offering of the Securities
hereunder, or lend, contribute or otherwise make available such
proceeds to any subsidiary, joint venture partner or other person
or entity, for the purpose of financing the activities of any
person currently subject to any U.S. sanctions administered by
OFAC;
(ff) The
Common Stock is an “actively-traded security” excepted
from the requirements of Rule 101 of Regulation M under the
Exchange Act by subsection (c)(1) of such rule;
(gg) The
Company has not taken, directly or indirectly, any action designed
to or that would constitute or that might reasonably be expected to
cause or result in, under the Exchange Act or otherwise,
stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Securities in
contravention of applicable law;
(hh) Except
as disclosed in the Pricing Prospectus, there is no broker, finder
or other party that is entitled to receive from the Company any
brokerage or finder’s fee or other fee or commission as a
result of any transactions contemplated by this
Agreement;
7
(ii) The
Securities have been approved for listing on the NASDAQ, subject
only to notice of issuance at or prior to each Time of
Delivery;
(jj) Any
certificate signed by any officer of the Company delivered to the
Underwriters or to counsel for the Underwriters pursuant to or in
connection with this Agreement shall be deemed a representation and
warranty by the Company to each of the Underwriters as to the
matters covered thereby; and
(kk) 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 is aware of or has taken any
action, directly or indirectly, that would result in a violation by
such persons of the Foreign Corrupt Practices Act, as amended (the
“ FCPA ”) in any material respect, including,
without limitation, making use of the mails or any means or
instrumentality of interstate commerce corruptly in furtherance of
an offer, payment, promise to pay or authorization of the payment
of any money, or other property, gift, promise to give, or
authorization of the giving of anything of value to any
“foreign official” (as such term is defined in the
FCPA) or any foreign political party or official thereof or any
candidate for foreign political office, in contravention of the
FCPA, and the Company, its subsidiaries and, to the knowledge of
the Company, its affiliates have conducted their businesses in
compliance with the FCPA in all material respects and have
instituted and maintain policies and procedures designed to ensure,
and which are reasonably expected to continue to ensure, continued
compliance therewith.
(a) Subject
to the terms and conditions and in reliance upon the
representations and warranties herein set forth, (i) the
Company agrees to issue and sell to the Underwriters, and the
Underwriters agree, severally but not jointly, to purchase from the
Company the number of the Firm Securities set forth in
Schedule I at $4.0215 per share, and (ii) in the event
and to the extent that the Underwriters shall exercise the election
to purchase Optional Securities as provided below, the Company
agrees to issue and sell to the Underwriters, and the Underwriters
agree, severally but not jointly, to purchase from the Company, at
the same purchase price set forth in clause (i) of this
Section 2(a), the number of Optional Securities as to which
such election shall have been exercised (to be adjusted by the
Representatives so as to eliminate fractions).
(b) The
Company hereby grants to the Underwriters the right to purchase at
their election, from time to time and in whole or in part, the
Optional Securities, at the same purchase price set forth in clause
(i) of Section 2(a). Any such election to purchase
Optional Securities may be exercised only by written notice from
you to the Company setting forth the number of Optional Securities
to be purchased and the date on which such Optional Securities are
to be delivered, as determined by you but in no event
(i) earlier than the First Time of Delivery, (ii) later
than 30 calendar days after the First Time of Delivery or
(iii) unless you and the Company otherwise agree in writing,
earlier than two or later than ten business days after the date of
such notice.
3. Delivery
and Payment . (a) Delivery of and payment for the
Securities shall be made, (i) with respect to the Firm
Securities, at the offices of Sullivan & Cromwell LLP, 125
Broad Street, New York, New York 10004 (the “ Closing
Location ”) at 10:00 a.m., Eastern time, September
23, 2009, or at such other date and time as the Underwriters and
the Company may agree in writing (such time and date of delivery of
and payment for the Firm Securities being herein called the “
First Time of Delivery ”) and (ii) with respect
to the Optional Securities, if any, at the office, on the date and
at the time specified by the Underwriters in their written notice
of election to purchase such Optional Securities, or at such other
date and time as the Underwriters and the Company may agree in
writing (such time and date and time of
8
delivery of and
payment for the Optional Securities being herein called the “
Second Time of Delivery ”; each First Time of Delivery
and Second Time of Delivery is herein called a “ Time of
Delivery ”). The Securities to be purchased by the
Underwriters hereunder will be delivered to or as instructed by the
Representatives for the account of each Underwriter in a form
reasonably acceptable to the Representatives against payment by or
on behalf of such Underwriter of the purchase price therefor by
wire transfer of Federal (same-day) funds to the account specified
by the Company to the Underwriters at least twenty-four hours in
advance. Delivery of the Securities will be made through the
facilities of DTC unless the Representatives shall otherwise
instruct.
(b) The
documents to be delivered at each Time of Delivery by or on behalf
of the parties hereto pursuant to Section 7, including the
cross-receipt fo
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