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EXHIBIT 4.1 WARRANT TO PURCHASE COMMON STOCK THE
SECURITIES REPRESENTED BY THIS INSTRUMENT HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES
LAWS OF ANY STATE AND MAY NOT BE TRANSFERRED, SOLD OR OTHERWISE
DISPOSED OF EXCEPT WHILE A REGISTRATION STATEMENT RELATING THERETO
IS IN EFFECT UNDER SUCH ACT AND APPLICABLE STATE SECURITIES LAWS OR
PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER SUCH ACT OR SUCH
LAWS. THIS INSTRUMENT IS ISSUED SUBJECT TO THE RESTRICTIONS ON
TRANSFER AND OTHER PROVISIONS OF A SECURITIES PURCHASE AGREEMENT
BETWEEN THE ISSUER OF THESE SECURITIES AND THE INVESTOR REFERRED TO
THEREIN, A COPY OF WHICH IS ON FILE WITH THE ISSUER. THE SECURITIES
REPRESENTED BY THIS INSTRUMENT MAY NOT BE SOLD OR OTHERWISE
TRANSFERRED EXCEPT IN COMPLIANCE WITH SAID AGREEMENT. ANY SALE OR
OTHER TRANSFER NOT IN COMPLIANCE WITH SAID AGREEMENT WILL BE VOID.
WARRANT
to purchase
15,510,737
Shares of Common Stock
of Synovus Financial Corp. Issue Date: December 19, 2008
1. Definitions. Unless
the context otherwise requires, when used herein the following
terms shall have the meanings indicated. " Affiliate " has
the meaning ascribed to it in the Purchase Agreement. "
Appraisal Procedure " means a procedure whereby two
independent appraisers, one chosen by the Company and one by the
Original Warrantholder, shall mutually agree upon the
determinations then the subject of appraisal. Each party shall
deliver a notice to the other appointing its appraiser within
15 days after the Appraisal Procedure is invoked. If within
30 days after appointment of the two appraisers they are
unable to agree upon the amount in question, a third independent
appraiser shall be chosen within 10 days thereafter by the
mutual consent of such first two appraisers. The decision of the
third appraiser so appointed and chosen shall be given within 30
days after the selection of such third appraiser. If three
appraisers shall be appointed and the determination of one
appraiser is disparate from the middle determination by more than
twice the amount by which the other determination is disparate from
the middle determination, then the determination of such appraiser
shall be excluded, the remaining two determinations shall be
averaged and such average shall be binding and conclusive upon
the
Company and the Original Warrantholder; otherwise, the average
of all three determinations shall be binding upon the Company and
the Original Warrantholder. The costs of conducting any Appraisal
Procedure shall be borne by the Company. " Board of
Directors " means the board of directors of the Company,
including any duly authorized committee thereof. " Business
Combination " means a merger, consolidation, statutory share
exchange or similar transaction that requires the approval of the
Company’s stockholders. " business day " means any day
except Saturday, Sunday and any day on which banking institutions
in the State of New York generally are authorized or required by
law or other governmental actions to close. " Capital Stock
" means (A) with respect to any Person that is a corporation
or company, any and all shares, interests, participations or other
equivalents (however designated) of capital or capital stock of
such Person and (B) with respect to any Person that is not a
corporation or company, any and all partnership or other equity
interests of such Person. " Charter " means, with respect to
any Person, its certificate or articles of incorporation, articles
of association, or similar organizational document. " Common
Stock " has the meaning ascribed to it in the Purchase
Agreement. " Company " means the Person whose name,
corporate or other organizational form and jurisdiction of
organization is set forth in Item 1 of Schedule A hereto.
"c onversion " has the meaning set forth in
Section 13(B). " convertible securities " has the
meaning set forth in Section 13(B). " CPP " has the
meaning ascribed to it in the Purchase Agreement. " Exchange
Act " means the Securities Exchange Act of 1934, as amended, or
any successor statute, and the rules and regulations promulgated
thereunder. " Exercise Price " means the amount set forth in
Item 2 of Schedule A hereto. " Expiration Time "
has the meaning set forth in Section 3. " Fair Market
Value " means, with respect to any security or other property,
the fair market value of such security or other property as
determined by the Board of Directors, acting in good faith or, with
respect to Section 14, as determined by the Original
Warrantholder acting in good faith. For so long as the Original
Warrantholder holds this Warrant or any portion thereof, it may
object in writing to the Board of Director’s calculation of
fair market value within 10 days of receipt of written notice
thereof. If the Original Warrantholder and the Company are unable
to agree on fair market value during the 10-day period following
the delivery of the Original Warrantholder’s objection, the
Appraisal Procedure may be invoked by either party to determine
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Fair Market Value by delivering written notification thereof not
later than the 30th day after delivery of the Original
Warrantholder’s objection. " Governmental Entities "
has the meaning ascribed to it in the Purchase Agreement. "
Initial Number " has the meaning set forth in
Section 13(B). " Issue Date " means the date set forth
in Item 3 of Schedule A hereto. " Market Price "
means, with respect to a particular security, on any given day, the
last reported sale price regular way or, in case no such reported
sale takes place on such day, the average of the last closing bid
and ask prices regular way, in either case on the principal
national securities exchange on which the applicable securities are
listed or admitted to trading, or if not listed or admitted to
trading on any national securities exchange, the average of the
closing bid and ask prices as furnished by two members of the
Financial Industry Regulatory Authority, Inc. selected from time to
time by the Company for that purpose. "Market Price" shall be
determined without reference to after hours or extended hours
trading. If such security is not listed and traded in a manner that
the quotations referred to above are available for the period
required hereunder, the Market Price per share of Common Stock
shall be deemed to be (i) in the event that any portion of the
Warrant is held by the Original Warrantholder, the fair market
value per share of such security as determined in good faith by the
Original Warrantholder or (ii) in all other circumstances, the
fair market value per share of such security as determined in good
faith by the Board of Directors in reliance on an opinion of a
nationally recognized independent investment banking corporation
retained by the Company for this purpose and certified in a
resolution to the Warrantholder. For the purposes of determining
the Market Price of the Common Stock on the "trading day"
preceding, on or following the occurrence of an event,
(i) that trading day shall be deemed to commence immediately
after the regular scheduled closing time of trading on the New York
Stock Exchange or, if trading is closed at an earlier time, such
earlier time and (ii) that trading day shall end at the next
regular scheduled closing time, or if trading is closed at an
earlier time, such earlier time (for the avoidance of doubt, and as
an example, if the Market Price is to be determined as of the last
trading day preceding a specified event and the closing time of
trading on a particular day is 4:00 p.m. and the specified event
occurs at 5:00 p.m. on that day, the Market Price would be
determined by reference to such 4:00 p.m. closing price). "
Ordinary Cash Dividends " means a regular quarterly cash
dividend on shares of Common Stock out of surplus or net profits
legally available therefor (determined in accordance with generally
accepted accounting principles in effect from time to time),
provided that Ordinary Cash Dividends shall not include any cash
dividends paid subsequent to the Issue Date to the extent the
aggregate per share dividends paid on the outstanding Common Stock
in any quarter exceed the amount set forth in Item 4 of
Schedule A hereto, as adjusted for any stock split, stock
dividend, reverse stock split, reclassification or similar
transaction. " Original Warrantholder " means the United
States Department of the Treasury. Any actions specified to be
taken by the Original Warrantholder hereunder may only be taken by
such Person and not by any other Warrantholder. " Permitted
Transactions " has the meaning set forth in
Section 13(B).
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" Person " has the meaning given to it in
Section 3(a)(9) of the Exchange Act and as used in Sections
13(d)(3) and 14(d)(2) of the Exchange Act. " Per Share Fair
Market Value " has the meaning set forth in Section 13(C).
" Preferred Shares " means the perpetual preferred stock
issued to the Original Warrantholder on the Issue Date pursuant to
the Purchase Agreement. " Pro Rata Repurchases " means any
purchase of shares of Common Stock by the Company or any Affiliate
thereof pursuant to (A) any tender offer or exchange offer
subject to Section 13(e) or 14(e) of the Exchange Act or
Regulation 14E promulgated thereunder or (B) any other
offer available to substantially all holders of Common Stock, in
the case of both (A) or (B), whether for cash, shares of
Capital Stock of the Company, other securities of the Company,
evidences of indebtedness of the Company or any other Person or any
other property (including, without limitation, shares of Capital
Stock, other securities or evidences of indebtedness of a
subsidiary), or any combination thereof, effected while this
Warrant is outstanding. The "Effective Date" of a Pro Rata
Repurchase shall mean the date of acceptance of shares for purchase
or exchange by the Company under any tender or exchange offer which
is a Pro Rata Repurchase or the date of purchase with respect to
any Pro Rata Repurchase that is not a tender or exchange offer. "
Purchase Agreement " means the Securities Purchase Agreement
— Standard Terms incorporated into the Letter Agreement,
dated as of the date set forth in Item 5 of Schedule A
hereto, as amended from time to time, between the Company and the
United States Department of the Treasury (the "Letter Agreement"),
including all annexes and schedules thereto. " Qualified Equity
Offering " has the meaning ascribed to it in the Purchase
Agreement. " Regulatory Approvals " with respect to the
Warrantholder, means, to the extent applicable and required to
permit the Warrantholder to exercise this Warrant for shares of
Common Stock and to own such Common Stock without the Warrantholder
being in violation of applicable law, rule or regulation, the
receipt of any necessary approvals and authorizations of, filings
and registrations with, notifications to, or expiration or
termination of any applicable waiting period under, the
Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended,
and the rules and regulations thereunder. " SEC " means the
U.S. Securities and Exchange Commission. " Securities Act "
means the Securities Act of 1933, as amended, or any successor
statute, and the rules and regulations promulgated thereunder. "
Shares " has the meaning set forth in Section 2. "
trading day " means (A) if the shares of Common Stock
are not traded on any national or regional securities exchange or
association or over-the-counter market, a business day or
(B) if the shares of Common Stock are traded on any national
or regional securities exchange or association or over-the-counter
market, a business day on which such relevant exchange or quotation
system is scheduled to be open for business and on which the shares
of Common Stock (i) are not suspended from trading on any
national or regional securities exchange or association
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or over-the-counter market for any period or periods aggregating
one half hour or longer; and (ii) have traded at least once on the
national or regional securities exchange or association or
over-the-counter market that is the primary market for the trading
of the shares of Common Stock. " U.S. GAAP " means United
States generally accepted accounting principles. "
Warrantholder " has the meaning set forth in Section 2.
" Warrant " means this Warrant, issued pursuant to the
Purchase Agreement. 2.
Number of Shares; Exercise Price . This certifies that, for
value received, the United States Department of the Treasury or its
permitted assigns (the "Warrantholder") is entitled, upon the terms
and subject to the conditions hereinafter set forth, to acquire
from the Company, in whole or in part, after the receipt of all
applicable Regulatory Approvals, if any, up to an aggregate of the
number of fully paid and nonassessable shares of Common Stock set
forth in Item 6 of Schedule A hereto, at a purchase price
per share of Common Stock equal to the Exercise Price. The number
of shares of Common Stock (the "Shares") and the Exercise Price are
subject to adjustment as provided herein, and all references to
"Common Stock," "Shares" and "Exercise Price" herein shall be
deemed to include any such adjustment or series of adjustments.
3. Exercise of Warrant;
Term . Subject to Section 2, to the extent permitted by
applicable laws and regulations, the right to purchase the Shares
represented by this Warrant is exercisable, in whole or in part by
the Warrantholder, at any time or from time to time after the
execution and delivery of this Warrant by the Company on the date
hereof, but in no event later than 5:00 p.m., New York City time on
the tenth anniversary of the Issue Date (the "Expiration Time"), by
(A) the surrender of this Warrant and Notice of Exercise
annexed hereto, duly completed and executed on behalf of the
Warrantholder, at the principal executive office of the Company
located at the address set forth in Item 7 of Schedule A
hereto (or such other office or agency of the Company in the United
States as it may designate by notice in writing to the
Warrantholder at the address of the Warrantholder appearing on the
books of the Company), and (B) payment of the Exercise Price
for the Shares thereby purchased:
(i) by
having the Company withhold, from the shares of Common Stock that
would otherwise be delivered to the Warrantholder upon such
exercise, shares of Common Stock issuable upon exercise of the
Warrant equal in value to the aggregate Exercise Price as to which
this Warrant is so exercised based on the Market Price of the
Common Stock on the trading day on which this Warrant is exercised
and the Notice of Exercise is delivered to the Company pursuant to
this Section 3, or
(ii) with
the consent of both the Company and the Warrantholder, by tendering
in cash, by certified or cashier’s check payable to the order
of the Company, or by wire transfer of immediately available funds
to an account designated by the Company. If the Warrantholder does
not exercise this Warrant in its entirety, the Warrantholder will
be entitled to receive from the Company within a reasonable time,
and in any event not exceeding three business days, a new warrant
in substantially identical form for the purchase of that number of
Shares equal to the difference between the number of Shares subject
to this Warrant and the
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number of Shares as to which this Warrant is so exercised.
Notwithstanding anything in this Warrant to the contrary, the
Warrantholder hereby acknowledges and agrees that its exercise of
this Warrant for Shares is subject to the condition that the
Warrantholder will have first received any applicable Regulatory
Approvals. 4. Issuance of
Shares; Authorization; Listing . Certificates for Shares issued
upon exercise of this Warrant will be issued in such name or names
as the Warrantholder may designate and will be delivered to such
named Person or Persons within a reasonable time, not to exceed
three business days after the date on which this Warrant has been
duly exercised in accordance with the terms of this Warrant. The
Company hereby represents and warrants that any Shares issued upon
the exercise of this Warrant in accordance with the provisions of
Section 3 will be duly and validly authorized and issued,
fully paid and nonassessable and free from all taxes, liens and
charges (other than liens or charges created by the Warrantholder,
income and franchise taxes incurred in connection with the exercise
of the Warrant or taxes in respect of any transfer occurring
contemporaneously therewith). The Company agrees that the Shares so
issued will be deemed to have been issued to the Warrantholder as
of the close of business on the date on which this Warrant and
payment of the Exercise Price are delivered to the Company in
accordance with the terms of this Warrant, notwithstanding that the
stock transfer books of the Company may then be closed or
certificates representing such Shares may not be actually delivered
on such date. The Company will at all times reserve and keep
available, out of its authorized but unissued Common Stock, solely
for the purpose of providing for the exercise of this Warrant, the
aggregate number of shares of Common Stock then issuable upon
exercise of this Warrant at any time. The Company will
(A) procure, at its sole expense, the listing of the Shares
issuable upon exercise of this Warrant at any time, subject to
issuance or notice of issuance, on all principal stock exchanges on
which the Common Stock is then listed or traded and
(B) maintain such listings of such Shares at all times after
issuance. The Company will use reasonable best efforts to ensure
that the Shares may be issued without violation of any applicable
law or regulation or of any requirement of any securities exchange
on which the Shares are listed or traded.
5. No Fractional Shares or
Scrip . No fractional Shares or scrip representing fractional
Shares shall be issued upon any exercise of this Warrant. In lieu
of any fractional Share to which the Warrantholder would otherwise
be entitled, the Warrantholder shall be entitled to receive a cash
payment equal to the Market Price of the Common Stock on the last
trading day preceding the date of exercise less the pro-rated
Exercise Price for such fractional share.
6. No Rights as
Stockholders; Transfer Books . This Warrant does not entitle
the Warrantholder to any voting rights or other rights as a
stockholder of the Company prior to the date of exercise hereof.
The Company will at no time close its transfer books against
transfer of this Warrant in any manner which interferes with the
timely exercise of this Warrant.
7. Charges, Taxes and
Expenses . Issuance of certificates for Shares to the
Warrantholder upon the exercise of this Warrant shall be made
without charge to the Warrantholder for any issue or transfer tax
or other incidental expense in respect of the issuance of such
certificates, all of which taxes and expenses shall be paid by the
Company.
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8.
Transfer/Assignment.
(A) Subject to compliance with
clause (B) of this Section 8, this Warrant and all rights
hereunder are transferable, in whole or in
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