FULTON FINANCIAL CORP
false
0000700564
0000700564
2024-04-29
2024-04-29
0000700564
us-gaap:CommonStockMember
2024-04-29
2024-04-29
0000700564
us-gaap:SeriesAPreferredStockMember
2024-04-29
2024-04-29
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM
8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
May 1, 2024 (
April 29, 2024
)
Date of Report (date of earliest event reported)
Fulton Financial Corporation
(Exact name of registrant as specified in its charter)
Pennsylvania 001-39680 23-2195389
(State or other jurisdiction (Commission (I.R.S. Employer
of incorporation) File Number) Identification No.)
One Penn Square 17604
,
P.O. Box 4887
Lancaster
,
Pennsylvania
(Address of Principal Executive Offices) (Zip Code)
(717)
291-2411
(Registrant's telephone number, including area code)
Check the appropriate box below if the Form
8-K
filing is intended to simultaneously satisfy the filing obligation of the
registrant under any of the following provisions (see General Instruction A.2.
below):
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
Soliciting material pursuant to Rule
14a-12
under the Exchange Act (17 CFR
240.14a-12)
Pre-commencement
communications pursuant to Rule
14d-2(b)
under the Exchange Act (17 CFR
240.14d-2(b))
Pre-commencement
communications pursuant to Rule
13e-4(c)
under the Exchange Act (17 CFR
240.13e-4(c))
Securities registered pursuant to Section 12(b) of the Act:
Title of each class Trading Name of each exchange
Symbol(s) on which registered
Common stock, par value $2.50 FULT The Nasdaq Stock Market, LLC
Depositary Shares, Each Representing 1/40th Interest in a Share of Fixed Rate FULTP The Nasdaq Stock Market, LLC
Non-Cumulative
Perpetual Preferred Stock, Series A
Indicate by check mark whether the registrant is an emerging growth company as
defined in Rule 405 of the Securities Act of 1933 ((s)230.405 of this chapter)
or Rule
12b-2
of the Securities Exchange Act of 1934
((s)240.12b-2
of this chapter).
Emerging growth company
If an emerging growth company, indicate by check mark if the registrant has
elected not to use the extended transition period for complying with any new
or revised financial accounting standards provided pursuant to Section 13(a)
of the Exchange Act.
-------------------------------------------------------------------------------
Item 7.01 Regulation FD Disclosure
On May 1, 2024, Fulton Financial Corporation (the "Corporation") issued a
press release announcing the closing of the public offering described in Item
8.01 below. Copies of the press release are attached hereto as Exhibit 99.1
and are incorporated by reference into this Item 7.01.
The information in this Item 7.01, including in Exhibit 99.1, is being
furnished pursuant to Item 7.01 of this Current Report on Form 8-K and shall
not be deemed "filed" for the purpose of Section 18 of the Securities Exchange
Act of 1934 (the "Exchange Act"), or otherwise subject to the liabilities of
that Section. The information in this Current Report on Form 8-K shall not be
incorporated by reference into any registration statement or any other filing
of the Corporation under the Securities Act of 1933 or the Exchange Act.
Item Other Events
.
8.01.
On May 1, 2024, the Corporation completed its underwritten public offering of
19,166,667 shares of common stock at a price to the public of $15 per share,
before underwriting discounts, which included 2,500,000 shares of common stock
upon the exercise in full by the Underwriters (as defined below) of their
option to purchase additional shares. The aggregate gross proceeds of the
offering were approximately $287.5 million. The net proceeds of the offering,
after deducting underwriting discounts and before deducting transaction
expenses, were approximately $273.5 million. The Corporation intends to use
the net proceeds of the offering for general corporate purposes, including to
support new opportunities in connection with its business strategy following
its previously announced acquisition of substantially all of the assets and
its assumption of substantially all of the deposits and certain liabilities of
Republic First Bank, doing business as Republic Bank, from the Federal Deposit
Insurance Corporation.
In connection with the offering, the Corporation entered into an Underwriting
Agreement, dated April 29, 2024 (the "Underwriting Agreement"), by and among
the Corporation and Piper Sandler & Co. and BofA Securities, Inc., as
representatives of the several underwriters named in Schedule I thereto
(collectively, the "Underwriters"). The Underwriting Agreement is filed as
Exhibit 1.1 to this Current Report on Form 8-K. Exhibits 1.1 and 5.1 to this
Current Report on Form 8-K are hereby incorporated by reference into the
Registration Statement (File No. 333-274624) pursuant to which the offering of
common stock described in this Current Report on Form 8-K has been registered
with the Securities and Exchange Commission (the "SEC").
The representations, warranties and covenants contained in the Underwriting
Agreement were made only for purposes of such agreement and as of specific
dates, were solely for the benefit of the parties to such agreement, and are
subject to certain limitations contained in the Underwriting Agreement.
Pursuant to the Underwriting Agreement, the directors and certain executive
officers of the Corporation entered into agreements in substantially the form
included as an exhibit to the Underwriting Agreement providing for a 60-day
"lock-up" period with respect to sales of the Corporation's securities,
subject to certain exceptions.
Cautionary Statements Regarding Forward-Looking Information
This Current Report on Form 8-K contains forward-looking statements. Do not
unduly rely on forward-looking statements. Forward-looking statements can be
identified by the use of words such as "may," "should," "will," "could,"
"estimates," "predicts," "potential," "continue," "anticipates," "believes,"
"plans," "expects," "future," "intends," "projects," the negative of these
terms and other comparable terminology.
Forward-looking statements are neither historical facts, nor assurance of
future performance. Instead, the statements are based on current beliefs,
expectations and assumptions regarding the future of the Corporation's
business, future plans and strategies, projections, anticipated events and
trends, the economy and other future conditions. Because forward-looking
statements relate to the future, they are subject to inherent uncertainties,
risks and changes in circumstances that are difficult to predict and many of
which are outside of the Corporation's control, and actual results and
financial condition may differ materially from those indicated in the
forward-looking statements. Therefore, you should not unduly rely on any of
these forward-looking statements. Any forward-looking statement is based only
on information currently available and speaks only as of the date when made.
The Corporation undertakes no obligation, other than as required by law, to
update or revise any forward-looking statements, whether as a result of new
information, future events or otherwise.
A discussion of certain risks and uncertainties affecting the Corporation, and
some of the factors that could cause the Corporation's actual results to
differ materially from those described in the forward-looking statements, can
be found in the sections entitled "Risk Factors" and "Management's Discussion
and Analysis of Financial Condition and Results of Operations" in the
Corporation's Annual Report on Form
10-K
for the year ended December 31, 2023
-------------------------------------------------------------------------------
and other current and periodic reports, which have been, or will be, filed
with the SEC and are, or will be, available in the Investor Relations section
of the Corporation's website (www.fultonbank.com) and on the SEC's website
(www.sec.gov).
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits.
Exhibit Description
No.
1.1 Underwriting Agreement, dated as of April 29, 2024, by and among Fulton Financial Corporation and Piper Sandler
& Co. and BofA Securities, Inc., as representatives of the several underwriters listed in Schedule I thereto.
5.1 Opinion of Holland & Knight LLP.
23.1 Consent of Holland & Knight
LLP (included in Exhibit 5.1)
99.1 Press Release announcing the closing of the
offering of common stock, dated May 1, 2024.
104 Cover page Interactive Data File (the cover page XBRL
tags are embedded within the Inline XBRL document)
-------------------------------------------------------------------------------
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
Date: May 1, 2024 FULTON FINANCIAL CORPORATION
By: /s/ Beth Ann L. Chivinski
Beth Ann L. Chivinski
Senior Executive Vice President and
Interim Chief Financial Officer
Exhibit 1.1
NOTICE REGARDING UNDERWRITING AGREEMENT
The attached Underwriting Agreement is a contractual document that establishes
and governs the legal relations among the parties with respectto the
transactions described therein. The Underwriting Agreement is not intended to
be a source for investors of factual, business, or operational information
about the Company. The representations and warranties, covenants and
agreements containedin the Underwriting Agreement were made only for purposes
of the Underwriting Agreement, were solely for the benefit of the parties to
the Underwriting Agreement, and may be subject to limitations agreed among
those parties. Accordingly, investorsand security holders should not rely on
representations or warranties, covenants and agreements as characterizations
of the actual state of facts or condition of the Company.
-------------------------------------------------------------------------------
FULTON FINANCIAL CORPORATION
Common Stock, par value $2.50 per share
UNDERWRITING AGREEMENT
April 29, 2024
P
IPER
S
ANDLER
& C
O
.
B
OF
A S
ECURITIES
, I
NC
.
As Representatives of the several
Underwriters named inSchedule I attached hereto,
c/o Piper Sandler & Co.
1251 Avenue of the Americas
6th Floor
New York, New York 10020
c/o BofA Securities, Inc.
One Bryant Park
New York, New York 10036
Ladies and Gentlemen:
Fulton Financial Corporation, aPennsylvania corporation (the "
Company
") proposes to issue and sell to the several underwriters named in Schedule I
hereto (the "
Underwriters
"), acting severally and not jointly, the respective numberof shares (the "
Firm Shares
") of the Company's common stock, par value $2.50 per share (the "
Common Stock
") set forth in Schedule I hereto, pursuant to the terms set forth herein (this"
Agreement
"). In addition, the Company proposes to grant to the Underwriters an option
to purchase up to an aggregate of 2,500,000 additional shares of the Common
Stock on the terms set forth in Section 2 (the"
Option Shares
"). The Firm Shares and the Option Shares, if purchased, are hereinafter
collectively called the "
Shares
". This Agreement is to confirm the agreement concerning the purchase of the
Sharesfrom the Company by the Underwriters.
The Company has filed with the Securities and Exchange Commission (the "
Commission
") an"automatic shelf registration statement" (as defined in Rule 405 of the
rules and regulations (the "
1933 Act Regulations
") of the Commission under the Securities Act of 1933, as amended (the "
1933Act
")) on Form
S-3
(No.
333-274624)
covering the registration of certain securities, including the Shares, under
the 1933 Act and the 1933 Act Regulations,which registration statement, and
any post-effective amendment thereto, became effective upon filing under Rule
462(e) of the 1933 Act Regulations ("
Rule 462(e)
"). Such registration statement, at any given time, including anyamendments
thereto existing at such time, the exhibits and any schedules thereto on file
with the Commission at such time, the information incorporated by reference
therein pursuant to Item 12 of Form
S-3
under the 1933 Act at such time and the information otherwise deemed to be a
part thereof or included therein at such time by the 1933 Act Regulations, is
referred to herein as the "
Registration Statement
." Promptly afterexecution and delivery of this Agreement, the Company will
prepare and file a prospectus supplement with
2
-------------------------------------------------------------------------------
respect to the Shares with the Commission in accordance with the provisions of
Rule 430B of the 1933 Act Regulations ("
Rule 430B
") and Rule 424(b) of the 1933 ActRegulations ("
Rule 424(b)
"). Any information included in such prospectus supplement that was omitted
from the Registration Statement or any post-effective amendment thereto that
is deemed to be part thereof and includedtherein pursuant to Rule 430B is
referred to herein as the "
Rule 430B Information
." The final prospectus and prospectus supplement relating to the Shares,
including the documents incorporated by reference or deemed to beincorporated
by reference therein pursuant to Item 12 of Form
S-3
under the 1933 Act, in the form first furnished to the Underwriters for use in
connection with the offering of the Shares, are collectivelyreferred to herein
as the "
Prospectus.
" Each prospectus and related prospectus supplement used in connection with
the offering of the Shares that omitted the Rule 430B Information is herein
called a "
preliminaryprospectus
." For purposes of this Agreement, all references to the Registration
Statement, the Prospectus or any preliminary prospectus or any amendment or
supplement to any of the foregoing shall be deemed to include the copy
filedwith the Commission pursuant to its Electronic Data Gathering, Analysis
and Retrieval system ("
EDGAR
").
All references in thisAgreement to financial statements and schedules,
interactive data and any other information which is "contained," "included" or
"stated" (or other references of like import) in the Registration Statement,
theProspectus, the Disclosure Package (defined below) or any preliminary
prospectus shall be deemed to include all such financial statements and
schedules, interactive data and other information which are incorporated by
reference in or otherwisedeemed by the 1933 Act Regulations to be a part of or
included in the Registration Statement, the Prospectus, the Disclosure Package
or any preliminary prospectus, as the case may be, prior to the execution of
this Agreement; and all references inthis Agreement to amendments or
supplements to the Registration Statement, the Prospectus or any preliminary
prospectus shall be deemed to include the filing of any document under the
Securities Exchange Act of 1934, as amended (the "
1934Act
"), and the rules and regulations promulgated thereunder (the "
1934 Act Regulations
"), which is incorporated by reference in or otherwise deemed by the 1933 Act
Regulations to be a part of or included in theRegistration Statement, the
Prospectus or any preliminary prospectus, as the case may be, after the
execution of this Agreement.
The Company confirms asfollows its agreement with you as the representatives
(the "
Representatives
") of the Underwriters.
1.
Representations, Warranties and Agreements of the Company
. The Company represents and warrants to each of the Underwriters as of the
date hereof, as of the Applicable Time (as defined in Section 1(b) hereof) and
as of each Delivery Date(as defined in Section 2 hereof), and agrees with each
of the Underwriters, as follows:
(a)
Status as Well Known SeasonedIssuer
. (A) At the time of filing the Registration Statement, (B) at the time of
each subsequent amendment to the Registration Statement for the purposes of
complying with Section 10(a)(3) of the 1933 Act (whether such amendmentwas by
post-effective amendment, incorporated report filed pursuant to Section 13 or
15(d) of the 1934 Act or form of prospectus), (C) at the time the Company or
any person acting on its behalf (within the meaning, for this subsection only,
ofRule 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
3
-------------------------------------------------------------------------------
Regulations ("
Rule 163
") and (D) at the date hereof, the Company was and is a "well-known seasoned
issuer" (as defined in Rule 405), including not havingbeen and not being an
"ineligible issuer" (as defined in Rule 405). The Registration Statement is an
"automatic shelf registration statement" (as defined in Rule 405), and the
Shares, as of the date of their registration on theRegistration Statement,
were, and, as of the date hereof and as of each Delivery Date (defined below),
remain, eligible for registration by the Company on an "automatic shelf
registration statement" under Rule 405. The Company has notreceived from the
Commission any notice pursuant to Rule 401(g)(2) of the 1933 Act Regulations
objecting to the use of the automatic shelf registration statement form.
At the earliest time that the Company or another offering participant made a
bona fide
offer (within the meaning of Rule 164(h)(2) of the 1933 ActRegulations) of the
Shares, the Company was not nor is an "ineligible issuer" (as defined in Rule
405).
(b)
RegistrationStatement, Prospectus and Disclosure Package at Time of Sale
. The Registration Statement became effective upon filing under Rule 462(e) on
September 21, 2023 and any post-effective amendment to the Registration
Statement also will becomeeffective upon filing under Rule 462(e). No stop
order suspending the effectiveness of the Registration Statement has been
issued under the 1933 Act and, to the knowledge of the Company, no proceedings
for that purpose have been instituted or arepending or are contemplated by the
Commission, and any request on the part of the Commission for additional
information has been complied with.
Any offerthat is a written communication relating to the Shares made by the
Company or any person acting on its behalf (within the meaning, for this
subsection only, of Rule 163(c) of the 1933 Act Regulations) prior to the
filing of the RegistrationStatement or any amendment thereto has been filed
with the Commission in accordance with the exemption provided by Rule 163 and
otherwise complied with the requirements of Rule 163, including, without
limitation, the legending requirement, toqualify such offer for the exemption
from Section 5(c) of the 1933 Act provided by Rule 163.
At the time the Registration Statement becameeffective, at each deemed
effective date with respect to the Shares pursuant to Rule 430B(f)(2) of the
1933 Act Regulations and at each Delivery Date, the Registration Statement
complied, complies and will comply in all material respects with therequirements
of the 1933 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 to make the statements
thereinnot misleading. Neither the Prospectus nor any amendment or supplement
thereto, when read together with the Prospectus, at the time the Prospectus or
any such amendment or supplement was issued or at each Delivery Date, included
or will include anuntrue statement of a material fact or omitted 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.
Each preliminary prospectus and theProspectus complied, when filed with the
Commission, in all material respects with the 1933 Act and the 1933 Act
Regulations, and each preliminary prospectus and the Prospectus delivered to
the Underwriters for use in connection with the offering ofthe Shares was
identical to the electronically transmitted copies thereof filed with the
Commission pursuant to EDGAR, except to the extent permitted by Regulation
S-T.
4
-------------------------------------------------------------------------------
As of the Applicable Time or each Delivery Date, any Issuer General Use Free
Writing Prospectus (as definedbelow), the most recent preliminary prospectus
furnished to the Underwriters for general distribution to investors prior to
the Applicable Time, and the pricing information conveyed orally to investors
set forth on Schedule II hereto, whenconsidered together (collectively, as of
the Applicable Time, the "
Disclosure Package
"), did not include any untrue statement of a material fact or omit to state
any material fact necessary in order to make the statementstherein, in the
light of the circumstances under which they were made, not misleading.
As used in this subsection and elsewhere in this Agreement:
"
Applicable Time
" means 7:45 A.M. (New York time) on April 29, 2024, or such other time as
agreed by the Company and theRepresentatives.
"
Issuer Free Writing Prospectus
" means any "issuer free writing prospectus" (as defined in clause(h)(1) of
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 that is a writtencommunication"
within the meaning of Rule 433(d)(8)(i), whether or not required to be filed
with the Commission or (iii) is exempt from filing pursuant to Rule
433(d)(5)(i) because it contains a description of the Shares or of the
offeringthat 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 records of the Company pursuant to Rule 433(g).
"
Issuer General Use Free Writing Prospectus
" means any Issuer Free Writing Prospectus that is intended for general
distribution toprospective investors (other than a "
bona fide
electronic road show," as defined in Rule 433), as evidenced by its being
specified in Schedule III hereto.
Any Issuer Free Writing Prospectus, as of its issue date and at all subsequent
times through the completion of the offer and sale of the Shares or until
anyearlier date that the Company notified or notifies the Representatives in
writing, did not, does not and will not include any information that
conflicted, conflicts or will conflict with the information contained in the
Registration Statement or theProspectus, including any document incorporated
therein by reference and any preliminary or other prospectus deemed to be a
part thereof that has not been superseded or modified.
The representations and warranties in this subsection shall not apply to
statements in or omissions from the Registration Statement or the Prospectus
made inreliance upon and in conformity with written information furnished to
the Company through the Representatives by or on behalf of any Underwriter
specifically for inclusion therein, which information is limited to any
Underwriters' Information(as defined in Section 9(a) below).
(c)
Incorporated Documents
. The documents incorporated or deemed to be incorporated byreference in the
preliminary prospectus or the Prospectus, when read together with the other
information in the preliminary prospectus or the Prospectus, at the time the
Registration Statement became effective or such documents were filed with
theCommission, as the case may be, did not, and at the earlier of the time the
Prospectus was first used and the first "time of sale," within the meaning of
Rule 159 under the 1933 Act Regulations, of the Shares in this offering and on
eachDelivery Date will not, include an untrue statement of a material fact or
5
-------------------------------------------------------------------------------
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. The documents incorporated or deemedto be incorporated by
reference in the Prospectus, when filed with the Commission, conformed or will
conform, as the case may be, in all material respects to the applicable
requirements of the 1934 Act and the 1934 Act Regulations.
(d)
Independent Accountants
. KPMG LLP, who certified the financial statements and supporting schedules
included in the Prospectus, isan independent registered public accounting firm
as required by the 1933 Act and the 1933 Act Regulations and the rules of the
Public Company Accounting Oversight Board.
(e)
Financial Statements
. The consolidated historical financial statements, together with the related
schedules and notes, included inthe preliminary prospectus, the Prospectus,
the Disclosure Package and the Registration Statement present fairly, in all
material respects, the financial position of the Company and its consolidated
subsidiaries at the dates indicated, and thestatements of income, changes in
equity and cash flows of the Company and its consolidated subsidiaries for the
periods specified. Such financial statements have been prepared in conformity
with generally accepted accounting principles in the UnitedStates ("
GAAP
") applied on a consistent basis throughout the periods involved. The
supporting schedules, if any, included therein present fairly, in all material
respects, the information required to be stated therein. Thesummary financial
data included therein present fairly, in all material respects, the
information shown therein and have been compiled on a basis consistent with
that of the audited financial statements included in the Prospectus. All
disclosuresincluded in the most recent preliminary prospectus, the Prospectus,
the Disclosure Package and the Registration Statement regarding
"non-GAAP
financial measures" (as such term is defined by the rulesand regulations of
the Commission) comply with Regulation G of the 1934 Act and Item 10 of
Regulation
S-K
of the 1933 Act, to the extent applicable.
(f)
Interactive Data
. The interactive data in eXtensible Business Reporting Language included in
the Registration Statement fairlypresents the information called for in all
material respects and has been prepared in accordance with the Commission's
rules and guidelines applicable thereto.
(g)
No Material Adverse Change in Business
. Since the respective dates as of which information is given in the
Prospectus, theDisclosure Package and the Registration Statement, except as
otherwise stated therein, (A) neither the Company nor any of its subsidiaries
has incurred any material losses or interference with its business from fire,
explosion, flood,earthquakes, accident or other calamity, whether or not
covered by insurance, or from any strike, labor dispute or court or
governmental action, order or decree, (B) there has been no material adverse
change, or any development which couldreasonably be expected to have a
material adverse change, (i) in the condition, financial or otherwise, or in
the earnings, properties, business affairs or business prospects of the
Company and its subsidiaries, considered as one enterprise,whether or not
arising in the ordinary course of business or (ii) in the ability of the
Company to perform its obligations under, and to consummate the transactions
contemplated by, this Agreement (each of (i) and (ii), a"
Material Adverse Effect
"), (C) neither the Company nor any of its subsidiaries has entered any
transaction, other than in the ordinary course of business, that is material
to the Company and its subsidiaries, considered asone enterprise, (D) there has
6
-------------------------------------------------------------------------------
not been any material change in the capital stock of the Company or any of its
Significant Subsidiaries (as defined below) (other than issuances or other
transfers of capital stock in theordinary course of business pursuant to the
Company's employee benefit plans, the Company's dividend reinvestment plan and
employee stock purchase plan or repurchases of Common Stock by the Company
pursuant to a share repurchase programdisclosed in the Prospectus) or any
material increase in the long term indebtedness of the Company or its
Significant Subsidiaries, and (E) the Company has not declared, paid or made
any dividend or distribution of any kind on any class of itscapital stock
(each of clauses (A), (B), (C), (D) and (E), a "
Material Adverse Change
").
(h)
RegulatoryEnforcement Matters
. Except as disclosed in the Registration Statement, the Prospectus and the
Disclosure Package, neither the Company nor any of its subsidiaries is subject
or is party to, or has received any written notice that any of them mayor will
become subject or party to any investigation with respect to, any
cease-and-desist
order, written agreement, consent agreement, memorandum of understanding
orother regulatory enforcement action, proceeding or order with or by, or is a
party to any commitment letter or similar undertaking to, or is subject to any
directive by, or has been a recipient of any supervisory letter from, or has
adopted anyboard resolutions at the request of, any Regulatory Agency (as
defined below) that in any material respect (considered on a consolidated
basis) currently relates to or restricts the conduct of their business or that
in any manner relates to theircapital adequacy, their credit policies, or
their management (each, a "
Regulatory Agreement
"), nor has the Company or any of its subsidiaries been advised in writing by
any Regulatory Agency that it is considering issuing orrequesting any such
Regulatory Agreement, where any such Regulatory Agreement could reasonably be
expected to have a Material Adverse Effect. Except as disclosed in the
Registration Statement, there is no unresolved violation, criticism or
exceptionby any Regulatory Agency with respect to any report or statement
relating to any examination of the Company or any of its subsidiaries which,
in the reasonable judgment of the Company, is expected to result in a Material
Adverse Effect or isexpected to prevent or materially delay the transactions
contemplated by this Agreement. As used herein, the term "
Regulatory Agency
" means any federal or state agency charged with the supervision or regulation
of depositoryinstitutions, or holding companies of depository institutions, or
engaged in the insurance of depository institution deposits, or engaged in the
regulation and enforcement of consumer financial services, or any court,
administrative agency orcommission or other federal or state governmental
agency, authority or instrumentality having supervisory or regulatory
authority with respect to the Company or any of its subsidiaries.
(i)
Good Standing of the Company
. The Company has been duly organized and is validly existing as a corporation
in good standing underthe laws of the Commonwealth of Pennsylvania and has
corporate power and authority to own, lease and operate its properties and to
conduct its business as described in the Registration Statement, the
Prospectus and the Disclosure Package, to enterinto and perform its
obligations under this Agreement, and to issue or direct the issuance of the
Shares, and is duly qualified as a foreign corporation to transact business
and is in good standing in each other jurisdiction in which suchqualification
or license 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
be in good standing would not result in a Material Adverse Effect.
7
-------------------------------------------------------------------------------
(j)
Financial Holding Company
. The Company is duly registered as a bank holdingcompany under the Bank
Holding Company Act of 1956, as amended (the "
BHC Act
"), does not (directly or indirectly) own or control the stock or voting
securities of any depository institution other than the Bank (as definedbelow),
and its direct and indirect activities and investments are authorized for a
bank holding company and its subsidiaries pursuant to the BHC Act. The Company
is "well capitalized" as that term is defined at 12 CFR part 225. TheCompany
is a "financial holding company" as such term is defined in 12 C.F.R. (s)
225.81.
(k)
Subsidiaries
. Each"significant subsidiary" of the Company (as such term is defined in Rule
1-02
of Regulation
S-X)
(each, a "
Significant Subsidiary
" and,collectively, the "
Significant Subsidiaries
") has been duly organized and is validly existing and in good standing under
the laws of the jurisdiction of its incorporation or organization, has
corporate or similar power andauthority to own, lease and operate its
properties and to conduct its business as described in the Registration
Statement, the Prospectus and the Disclosure Package and is duly qualified and
licensed to transact business and is in good standing ineach foreign
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 result in a
MaterialAdverse Effect. Fulton Bank, N.A. (the "
Bank
") is a national banking association formed under the laws of the United
States and authorized thereunder to transact in the business of banking. The
Bank is a member in goodstanding of its applicable Federal Home Loan Bank. The
deposit accounts of the Bank are insured up to the applicable limit by the
Federal Deposit Insurance Corporation (the "
FDIC
"), all premiums and assessments required to bepaid in connection therewith
have been paid when due, and no proceedings for the revocation or termination
of such insurance is pending or, to the knowledge of the Company, threatened.
The Bank is "well capitalized" as that term is definedat 12 CFR part 6. The
only Significant Subsidiary of the Company is Fulton Bank, N.A.
(l)
Capital Stock Duly Authorized and ValidlyIssued
. All of the issued and outstanding shares of capital stock of the Company
have been duly authorized and validly issued and are fully paid and
nonassessable. All of the issued and outstanding shares of capital stock of
the Bank have beenduly authorized and validly issued, are fully paid and
nonassessable and are owned by the Company, directly or through one or more
other subsidiaries, free and clear of any security interest, mortgage, pledge,
lien, encumbrance, claim or equitableright. None of the issued and outstanding
shares of capital stock of the Company or the Bank were issued in violation of
any preemptive or similar rights of any shareholder of the Company or the
Bank, as the case may be, arising by operation of law,or under the articles of
incorporation, bylaws or other organizational documents of the Company or the
Bank or under any agreement to which the Company or the Bank is a party.
(m)
Capitalization
. The authorized, issued and outstanding capital stock of the Company as set
forth in the most recent preliminaryprospectus supplement under "Description
of Capital Stock." There have not been any subsequent issuances of capital
stock of the Company since such date (except issuances of common stock
pursuant to exercises of employee stock options andpursuant to the Company's
dividend reinvestment plan and employee stock purchase plan).
8
-------------------------------------------------------------------------------
(n)
Authorization of Agreement
. This Agreement has been duly authorized, executed anddelivered by the
Company and constitutes the valid and legally binding agreement of the
Company, enforceable against the Company in accordance with its terms, except
to the extent that enforceability may be limited by (1) bankruptcy,insolvency,
reorganization, moratorium, fraudulent conveyance or other similar laws now or
hereafter in effect relating to creditors' rights generally and (2) general
principles of equity (regardless of whether enforceability is consideredin a
proceeding at law or in equity) (collectively, the "
Enforceability Exceptions
").
(o)
Authorization andDescription of the Shares
. The Shares have been duly authorized and, when issued and delivered against
payment therefor in accordance with this Agreement, will be validly issued,
fully paid and
non-assessable,
will be issued in compliance with federal and state securities laws and will
be free of preemptive or similar rights of any person or entity of the Company
arising by operation of law, or underthe articles of incorporation, bylaws or
other organizational documents of the Company or under any agreement to which
the Company is a party.
(p)
Not an Investment Company
. The Company is not, and immediately following consummation of the
transactions contemplated hereby andthe application of the net proceeds as
described in the Registration Statement, the Prospectus and the Disclosure
Package, the Company will not be, an "investment company" or an entity
controlled by an "investment company," ineach case within the meaning of
Section 3(a) of the Investment Company Act of 1940, as amended (the "
1940 Act
"), without regard to Section 3(c) of the 1940 Act.
(q)
Description of the Shares
. The Shares will conform, in all material respects, to all statements
relating thereto contained in theRegistration Statement, the Prospectus and
the Disclosure Package.
(r)
Absence of Defaults and Conflicts
. Neither the Company norany of its subsidiaries is (i) in violation of its
charter, bylaws or other organizational document, (ii) in default in the
performance or observance of any obligation, agreement, covenant or condition
contained in any contract, 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 them may be bound or to which any of its assets is
subject (collectively, "
Agreements andInstruments
"), except for such defaults that would not, individually or in the aggregate,
result in a Material Adverse Effect, or (iii) except as disclosed in the
Registration Statement, the Prospectus and the Disclosure Package,in violation
of any U.S. or
non-U.S.
federal, state or local statute, law (including, without limitation, common
law) or ordinance, or any judgment, decree, rule, regulation, order or
injunction of any U.S. or
non-U.S.
federal, state, local or other governmental or regulatory authority,
governmental or Regulatory Agency or body, court, arbitrator or self-regulatory
organization applicable to the Company or the Bankor any of their respective
properties, assets or operations (each, a "
Governmental Entity
"), except for any such default or violation that would not, individually or
in the aggregate, have a Material Adverse Effect. Theexecution, delivery and
performance of this Agreement by the Company, the issuance, sale and delivery
of the Shares, the consummation of the transactions contemplated by this
Agreement, and compliance by the Company with the terms of this Agreementhave
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, (i) violate, conflict with or constitute a
9
-------------------------------------------------------------------------------
breach of, or default or Repayment Event (as defined below) under, or result
in the creation or imposition of any, security interest, mortgage, pledge,
lien, charge, encumbrance, claim orequitable right upon any assets of the
Company or the Bank pursuant to, any of the Agreements and Instruments, (ii)
result in any violation of any provision of the charter, bylaws or other
organizational document of the Company or the Bank or(iii) result in any
violation by the Company or the Bank of any applicable law, statute, rule,
regulation, judgment, order, writ or decree of any Governmental Entity. As
used herein, a "
Repayment Event
" means any eventor condition that gives, or with the giving of notice or
lapse of time would give, 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 or any of their
respective properties.
(s)
Absence of Labor Dispute
. No labor dispute with the employees of the Company or the Bank exists or, to
the knowledge of the seniormanagement of the Company, is contemplated or
threatened, which would reasonably be expected to have a Material Adverse
Effect.
(t)
Compliance with ERISA
. Each of the Company, its subsidiaries and each ERISA Affiliate (as
hereinafter defined) has fulfilled its obligations, if any, under the minimum
funding standards of Section 302 of the United States EmployeeRetirement
Income Security Act of 1974, as amended ("
ERISA
") with respect to each employee benefit plan, within the meaning of Section
3(3) of ERISA, that is maintained, administered or contributed to by the
Company orany of its subsidiaries or any member of the Company's "control
group" (within the meaning of Section 414 of the Internal Revenue Code of
1986, as amended (the "
Code
")) for employees or former employees ofthe Company and its affiliates, or
with respect to which it has (or within the last three years had) any
obligation to make contributions, and each such plan is in compliance in all
respects with the presently applicable provisions of ERISA and theCode, except
where such failure to fulfil its obligations or such
non-compliance
would not result in a Material Adverse Effect. None of the Company, its
subsidiaries or any ERISA Affiliate has incurred anyunpaid liability to the
Pension Benefit Guaranty Corporation (other than for the payment of premiums
in the ordinary course) or to any such plan under Title IV of ERISA, except
where such unpaid liability would not result in a Material AdverseEffect. No
prohibited transaction, within the meaning of Section 406 of ERISA or Section
4975 of the Code, has occurred with respect to any such plan, excluding
transactions effected pursuant to a statutory or administrative exemption,that
could reasonably be expected to result in a material liability to the Company
and its subsidiaries taken as a whole. "
ERISA Affiliate
" means a corporation, trade or business that is, along with the Company or
anysubsidiary, a member of a controlled group of corporations or a controlled
group of trades or businesses, as described in Section 414 of the Code or
Section 4001 of ERISA.
(u)
Absence of Proceedings
. Except as disclosed in the Registration Statement, the Prospectus and the
Disclosure Package, there is noaction, suit, proceeding, inquiry or
investigation before or brought by any Governmental Entity, now pending, or,
to the knowledge of the Company, threatened against or affecting the Company
or any of its subsidiaries, which (i) is required tobe disclosed in the
Registration Statement or the Prospectus and is not disclosed; (ii) would
reasonably be expected to have a Material Adverse Effect or (iii) would
reasonably be expected to materially and adversely affect theconsummation of
the transactions contemplated
10
-------------------------------------------------------------------------------
by this Agreement or the performance by the Company of its obligations
hereunder. Except as described in the Registration Statement, the Prospectus
and the Disclosure Package, there are no legalor governmental proceedings to
which the Company or any of its subsidiaries is a party or of which any of
their respective assets is the subject, including ordinary routine litigation
incidental to the business, which would, in the aggregate,reasonably be
expected to have a Material Adverse Effect.
(v)
Absence of Further Requirements
. No filing with, or authorization,approval, consent, license, order,
registration, qualification or decree of, any Governmental Entity, other than
those that have been made or obtained, is necessary or required for the
authority, execution, delivery or performance by the Company ofits obligations
under this Agreement, or the consummation by the Company of the transactions
contemplated thereunder, except as may be required under the 1933 Act, the
1933 Act Regulations, the rules of the Nasdaq Global Select Market,
thesecurities laws of any state or
non-U.S.
jurisdiction, or the rules of the Financial Industry Regulatory Authority,
Inc. ("
FINRA
").
(w)
Possession of Licenses and Permits
. The Company and its subsidiaries possess such permits, licenses, approvals,
consents and otherauthorizations (collectively, "
Governmental Licenses
") issued by the appropriate Governmental Entities that are necessary to
conduct their respective businesses as described in the Registration
Statement, the Prospectus andthe Disclosure Package, and have made all
declarations and filings with the appropriate Governmental Entities that are
necessary for the conduct of their respective businesses as described in the
Registration Statement, the Prospectus and theDisclosure Package, except where
the failure to possess such Governmental Licenses or make such declarations or
filings would not, individually or in the aggregate, have a Material Adverse
Effect. The Company and its subsidiaries are in compliancewith the terms and
conditions of all such Governmental Licenses, except where the failure so to
comply would not, individually or in the aggregate, have a Material Adverse
Effect. All of the Governmental Licenses are valid and in full force
andeffect, except when the invalidity of such Governmental Licenses or the
failure of such Governmental Licenses to be in full force and effect would
not, individually or in the aggregate, have a Material Adverse Effect. None of
the Company or any ofits subsidiaries has received any notice of proceedings
relating to the revocation or modification of any such Governmental Licenses
which, individually or in the aggregate, in the reasonable judgment of the
Company, is reasonably expected to have aMaterial Adverse Effect.
(x)
Conduct of Business
. Except as otherwise disclosed in the Registration Statement, the Prospectus
andthe Disclosure Package, each of the Company and the Bank is conducting its
business in compliance with all laws, rules, regulations, decisions,
directives and orders, and all regulations and orders of, or agreements with,
Governmental Entitiesapplicable to it, except where failure to so comply would
not, individually or in the aggregate, in the reasonable judgment of the
Company, be reasonably expected to have a Material Adverse Effect.
(y)
Environmental Matters
. Each of the Company and its subsidiaries are in compliance with all
applicable federal, state and locallaws, rules and regulations, and decisions
and orders relating to the protection of human health and safety, the
environment or hazardous or toxic substances or wastes, pollutants or
contaminants, including, without limitation, those applicable toemissions to
the environment, waste management and waste disposal (collectively,
11
-------------------------------------------------------------------------------
the "
Environmental Laws
"), except where such noncompliance would not, individually or in the
aggregate, have a Material Adverse Effect, and, to the knowledge of
theCompany, there are no circumstances that would prevent, interfere with or
materially increase the cost of such compliance in the future. There is no
claim under any Environmental Law, including common law, pending or, to the
knowledge of theCompany, threatened against the Company or any of its
subsidiaries (an "
Environmental Claim
"), which would have a Material Adverse Effect, and, to the knowledge of the
Company, under applicable law, there are no past orpresent actions,
activities, circumstances, events or incidents, including without limitation,
releases of any material into the environment, that are reasonably likely to
form the basis of any Environmental Claim against the Company or the Bankwhich
would, individually or in the aggregate, have a Material Adverse Effect.
(z)
Title to Property
. Each of the Company and itssubsidiaries has good and marketable title in fee
simple to all of its real and personal properties, reflected as owned in the
consolidated financial statements or as described in the Prospectus, in each
case free and clear of all liens,encumbrances, claims and defects, except as
do not materially interfere with the use made and proposed to be made of such
property by the Company or such subsidiary or which would not, individually or
in the aggregate, have a Material AdverseEffect. All of the leases and
subleases under which the Company or any of its subsidiaries holds properties
used in its business are in full force and effect, except where the failure of
such leases and subleases to be in full force and effect andwould not,
individually or in the aggregate, have a Material Adverse Effect. None of the
Company or any of its subsidiaries has any notice of any claim of any sort
that has been asserted by anyone adverse to the rights of the Company or any
of itssubsidiaries under any of the leases or subleases mentioned above, or
affecting or questioning the rights of such entity to the continued possession
of the leased or subleased premises under any such lease or sublease, except
any claim that wouldnot, individually or in the aggregate, have a Material
Adverse Effect.
(aa)
Intellectual Property
. Each of the Company and itssubsidiaries owns or possesses all necessary and
adequate patents, patent rights, licenses, inventions, copyrights,
know-how
(including trade secrets and other unpatented and/or unpatentable proprietary
orconfidential information, systems or procedures), trademarks, service marks,
trade names or other intellectual property (collectively, "
Intellectual Property
") presently employed by it in connection with the business nowoperated by it
or reasonably necessary in order to conduct such business, and none of the
Company or any of its subsidiaries has received any notice or is otherwise
aware of any infringement of or conflict with asserted rights of others with
respectto any Intellectual Property or any facts or circumstances which would
render any Intellectual Property invalid or inadequate to protect the interest
of the Company or any of its subsidiaries therein, except where the failure to
possess suchIntellectual Property or where such infringement or conflict (if
the subject of any unfavorable decision, ruling or finding) or invalidity or
inadequacy, individually or in the aggregate, would not have a Material
Adverse Effect.
(bb)
Taxes
. The Company and each Significant Subsidiary has, through the date hereof:
(i) timely filed all tax returns required tobe filed and such returns are true
correct and complete, and (ii) timely paid all federal, state, local and
foreign taxes, except to the extent any such taxes are being contested in good
faith and for which adequate reserves have been madeunder GAAP, except where
the failure to timely file such tax returns or to timely pay such taxes would
not, individually or in the aggregate, result in a Material Adverse Effect.
Giving effect to any applicable extensions and except as otherwisedisclosed in
the Registration Statement, the Prospectus and the Disclosure Package, there
is no material tax deficiency that has been, or could reasonably be expected
to be, asserted against the Company or the Bank or any of their respective
assets.
12
-------------------------------------------------------------------------------
(cc)
Insurance
. The Company and the Bank have insurance covering their respectiveassets,
operations, personnel and businesses, including business interruption
insurance, which insurance is in such amounts and insures against such losses
and risks as are adequate to protect the Company and the Bank and their
respective assets,operations, personnel and businesses; and neither the
Company nor the Bank has (i) received notice from any insurer or agent of such
insurer that capital improvements or other expenditures are required or
necessary to be made in order tocontinue such insurance or (ii) any reason to
believe that it will not be able to renew its existing insurance coverage as
and when such coverage expires or to obtain similar coverage at reasonable
cost from similar insurers as may be necessaryto continue its business.
(dd)
Payment of Dividends
. No subsidiary of the Company is currently prohibited, directly or
indirectly,from paying any dividends to the Company, from making any other
distribution on such subsidiary's capital stock, from transferring any of its
property or assets to the Company or any other subsidiary of the
Company
, or from repaying tothe Company any loans or advances to such subsidiary from
the Company, except as disclosed in the Registration Statement, the Prospectus
and the Disclosure Package.
(ee)
Sarbanes-Oxley Act
. The Company and its directors and officers, in their capacities as such, are
in compliance in all materialrespects with all provisions of the Sarbanes-Oxley
Act of 2002 and all rules and regulations promulgated thereunder or
implementing the provisions thereof with which the Company or any of its
directors or officers is required to comply.
(ff)
Accounting and Disclosure Controls
. The Company and its subsidiaries maintain systems of internal accounting
controls sufficientto provide reasonable assurance that: (i) transactions are
executed in accordance with management's general or specific authorizations;
(ii) transactions are recorded as necessary to permit preparation of financial
statements inconformity with generally accepted accounting principles and to
maintain asset accountability; (iii) access to assets is permitted only in
accordance with management's general or specific authorization; (iv) the
recordedaccountability for assets is compared with the existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences; and (v) the interactive data in eXtensible Business Reporting
Language included orincorporated by reference in the Registration Statement
fairly presents the information called for in all material respects and is
prepared in accordance with the Commission's rules and guidance applicable
thereto. The Company's internalcontrol over financial reporting is effective
in all material respects, and since the date of the latest audited financial
statements included in the Registration Statement, the Prospectus and the
Disclosure Package, (x) the Company is notaware of any material weaknesses in
its internal controls, and (y) 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, theCompany's internal control over
financial reporting. The Company maintains disclosure controls and procedures
(as such term is defined in Rule
13a-15(e)
of the
13
-------------------------------------------------------------------------------
1934 Act Regulations) that comply with the requirements of the 1934 Act; and
such disclosure controls and procedures have been designed to ensure that
material information relating to the Companyand 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
are effective.
(gg)
Foreign Corrupt Practices Act.
None of the Company or its subsidiaries or, to the knowledge of the Company,
any director, officer,employee or any agent or other person acting on behalf
of the Company or any of its subsidiaries has, in the course of its actions
for, or on behalf of, the Company or any of its subsidiaries (i) used any
corporate funds for any unlawfulcontribution, gift, entertainment or other
unlawful expenses relating to political activity in violation of the U.S.
Foreign Corrupt Practices Act of 1977, as amended, and the rules and
regulations thereunder (collectively, the"
FCPA
"); (ii) made any direct or indirect unlawful payment to any domestic
government official, "foreign official" (as defined in the FCPA) or employee
from corporate funds; (iii) violated or is in violation ofany provision of the
FCPA or any applicable
non-U.S.
anti-bribery statute or regulation; or (iv) made any unlawful bribe, rebate,
payoff, influence payment, kickback or other unlawful payment to anydomestic
government official, such foreign official or employee. The Company and its
subsidiaries, and, to the knowledge of the Company and its subsidiaries, its
and their other affiliates have conducted their businesses in compliance with
the FCPAand have instituted and maintain policies and procedures designed to
ensure compliance therewith.
(hh)
Compliance with MoneyLaundering Laws
. The operations of the Company and its subsidiaries are, and have been at all
times in the past five years, conducted in compliance with applicable
financial recordkeeping and reporting requirements of the Currency and
ForeignTransactions 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 anygovernmental agency (collectively, the "
Money Laundering Laws
"), and no action, suit or proceeding by or before any court or governmental
agency, authority or body or any arbitrator involving the Company or its
subsidiarieswith respect to the Money Laundering Laws is pending or, to the
knowledge of the Company or its subsidiaries, threatened.
(ii)
Compliance with OFAC
. Neither the Company nor any of its subsidiaries nor, to the Company's
knowledge, any director, officer, agent, employee or affiliate of the Company
or any of its subsidiaries or other person acting on their behalfis an
individual or entity ("
Person
") currently subject to any sanctions administered or enforced by the United
States Government (including without limitation, the Office of Foreign Assets
Control of the U.S. Department ofthe Treasury ("
OFAC
"), the U.S. Department of Commerce and the U.S. Department of State), the
United Nations Security Council, the European Union, or His Majesty's Treasury
(collectively,"
Sanctions
"); and the Company will not directly or indirectly use the proceeds of this
offering, or lend, contribute or otherwise make available such proceeds to any
subsidiary, joint venture partner or other person orentity, for the purpose of
financing the activities of or business with any person, or in any country or
territory, that currently is the subject to any Sanctions. The Company and its
subsidiaries are not knowingly engaged in any dealings ortransactions with any
Person that is the subject or target of Sanctions or with or in any country or
territory that is the target or subject of Sanctions.
14
-------------------------------------------------------------------------------
(jj)
IT Systems
. The Company and its subsidiaries' information technology assetsand
equipment, computers, systems, networks, hardware, software, websites,
applications, and databases (collectively, "
IT Systems
") are adequate for, and operate and perform as required in connection with,
the operation ofthe business of the Company and its subsidiaries as currently
conducted, free and clear of all bugs, errors, defects, Trojan horses, time
bombs, malware and other corruptants, except where failure in the adequacy,
operation or performance of such ITSystems would not, individually or in the
aggregate, result in a Material Adverse Effect. The Company and its
subsidiaries have implemented and maintained controls, policies, procedures,
and safeguards designed to maintain and protect theirconfidential information
and the integrity, continuous operation, redundancy and security of all IT
Systems and data (including all personal, personally identifiable, sensitive,
confidential or regulated data ("
PersonalData
")) used in connection with their businesses consistent with industry
standards and practices, and, to the Company's knowledge, there have been no
breaches, violations, outages or unauthorized uses of or accesses to same
norany incidents under internal review or investigations relating to the same,
except where failure to implement or maintain such controls, policies,
procedures and safeguards or the occurrence of breaches, violations, outages
or unauthorized uses oraccess would not, individually or in the aggregate,
result in a Material Adverse Effect. The Company and its subsidiaries are
presently in compliance with all applicable laws or statutes and all
judgments, orders, rules and regulations of any courtor arbitrator or
governmental or regulatory authority, internal policies and contractual
obligations relating to the privacy and security of IT Systems and Personal
Data and to the protection of such IT Systems and Personal Data from
unauthorizeduse, access, misappropriation or modification, except where
failure in compliance would not, individually or in the aggregate, result in a
Material Adverse Effect.
(kk)
No Brokers
. Other than the Underwriters, there is no broker, finder or other party that
is entitled to receive from the Companyany brokerage or finder's fee or other
fee or commission as a result of any transactions contemplated by this
Agreement.
(ll)
Stabilization.
Neither the Company nor any of its subsidiaries has taken or will take,
directly or indirectly, any action designed to, or that might be reasonably
expected to, cause or result in stabilization or manipulation of the price
ofthe Shares.
(mm)
Pending Proceedings and Examinations.
The Registration Statement is not the subject of a pending proceeding
orexamination under Section 8(d) or 8(e) of the 1933 Act, and the Company is
not the subject of a pending proceeding under Section 8A of the 1933 Act in
connection with the offering of the Shares.
(nn)
Registration Rights
. There are no persons with registration rights or other similar rights to
have any securities of the Companyor its subsidiaries registered by the
Company or any other person under the 1933 Act.
(oo)
Statistical and Market Data.
Nothinghas come to the attention of the Company that has caused the Company to
believe that the statistical and market-related data included in the
Registration Statement, the Prospectus or the Disclosure Package is not based
on or derived from sourcesthat are reliable or is not accurate in all material
respects.
15
-------------------------------------------------------------------------------
(pp)
Forward-Looking Statements.
No forward-looking statement (within the meaning ofSection 27A of the 1933 Act
and Section 21E of the 1934 Act) contained in the Registration Statement, the
Prospectus or the Disclosure Package has been made or reaffirmed without a
reasonable basis or has been disclosed other than in goodfaith.
(qq)
Distribution of Offering Material by the Company.
The Company has not distributed and will not distribute, prior tothe
completion of the Underwriters' distribution of the Shares, any offering
material in connection with the offering and sale of the Shares other than the
Registration Statement, the preliminary prospectus contained in the Disclosure
Package,the Prospectus, and any Issuer Free Writing Prospectus reviewed and
consented to by the Representatives and, if such Issuer Free Writing
Prospectus is an Issuer General Use Free Writing Prospectus, included in
Schedule III hereto.
Any certificate signed by any duly authorized officer of the Company and
delivered to the Representatives or counsel for the Underwriters in connection
withthe offering of the Shares shall be deemed a representation and warranty
by the Company, as to matters covered thereby, to each Underwriter.
2.
Purchase of the Shares by the Underwriters.
On the basis of the representations, warranties and covenants contained in,
and subjectto the terms and conditions of, this Agreement, the Company agrees
to issue and sell to each Underwriter, severally and not jointly, and each
Underwriter, severally and not jointly, agrees to purchase from the Company,
at the price per share setforth below, the number of Firm Shares set forth in
Schedule I opposite the name of such Underwriter, plus any additional number
of Shares which such Underwriter may become obligated to purchase pursuant to
the provisions of Section 10 hereof,subject, in each case, to such adjustments
among the Underwriters as the Representatives in their sole discretion shall
make to eliminate any sales or purchases of fractional shares.
In addition, the Company grants to the Underwriters an option to purchase up
to an aggregate of 2,500,000 additional Option Shares as set forth inSection 4
hereof. Each Underwriter agrees, severally and not jointly, to purchase the
number of Option Shares (subject to such adjustments to eliminate fractional
shares as the Representatives may determine) that bears the same proportion
tothe total number of Option Shares to be sold on such Delivery Date as the
number of Firm Shares opposite the name of the Underwriter bears to the total
number of Firm Shares.
The purchase price per share of Common Stock payable by the Underwriters for
both the Firm Shares and any Option Shares is $14.268750 per share.
The Company is not obligated to deliver any of the Firm Shares or Option
Shares to be delivered on the applicable Delivery Date, except upon payment
for allsuch Shares to be purchased on such Delivery Date as provided herein.
3.
Offering of Shares by the Underwriters
. Uponauthorization by the Representatives of the release of the Firm Shares,
the several Underwriters propose to offer the Firm Shares for sale upon the
terms and conditions to be set forth in the Prospectus.
16
-------------------------------------------------------------------------------
4.
Delivery of and Payment for the Shares.
Delivery of and payment for the FirmShares shall be made at 10:00 A.M., New
York City time, on the second full business day following the date of this
Agreement or at such other date or place as shall be determined by agreement
between the Representatives and the Company. This dateand time are sometimes
referred to as the "
Initial Delivery Date
". Delivery of the Firm Shares shall be made to the Representatives for the
account of each Underwriter against payment by the several Underwriters
through theRepresentatives of the aggregate purchase price for the Firm Shares
being sold by the Company to or upon the order of the Company of the purchase
price by wire transfer in immediately available funds to the accounts
specified by the Company. Timeshall be of the essence, and delivery at the
time and place specified pursuant to this Agreement is a further condition of
the obligation of each Underwriter hereunder. The Company shall deliver the
Firm Shares through the facilities of DTC unlessthe Representatives shall
otherwise instruct.
The option granted in Section 2 will expire 30 days after the date of this
Agreement and may beexercised in whole or from time to time in part by written
notice being given to the Company by the Representatives; provided that if
such date falls on a day that is not a business day, the option granted in
Section 2 will expire on the nextsucceeding business day. Such notice shall
set forth the aggregate number of Option Shares as to which the option is
being exercised, the names in which the Option Shares are to be registered,
the denominations in which the Option Shares are to beissued and the date and
time, as determined by the Representatives, when the Option Shares are to be
delivered; provided, that this date and time shall not be earlier than the
Initial Delivery Date nor earlier than the second business day after thedate
on which the option shall have been exercised nor later than the fifth
business day after the date on which the option shall have been exercised.
Each date and time the Option Shares are delivered is sometimes referred to as
an"
Option Shares Delivery Date
", and the Initial Delivery Date and any Option Shares Delivery Date are
sometimes each referred to as a "
Delivery Date
".
Delivery of the Option Shares by the Company and payment for the Option Shares
by the several Underwriters through the Representatives shall be made at
10:00A.M., New York City time, on the date specified in the corresponding
notice described in the preceding paragraph or at such other date or place as
shall be determined by agreement between the Representatives and the Company.
On each Option SharesDelivery Date, the Company shall deliver, or cause to be
delivered, the Option Shares, to the Representatives for the account of each
Underwriter, against payment by the several Underwriters through the
Representatives of the aggregate purchaseprice for the Option Shares being
sold by the Company to or upon the order of the Company of the purchase price
by wire transfer in immediately available funds to the accounts specified by
the Company. Time shall be of the essence, and delivery atthe time and place
specified pursuant to this Agreement is a further condition of the obligation
of each Underwriter hereunder. The Company shall deliver the Option Shares
through the facilities of DTC unless the Representatives shall otherwiseinstruct
.
17
-------------------------------------------------------------------------------
5.
Covenants of the Company
. The Company covenants with the Underwriters as follows:
(a)
Compliance with Securities Regulations and Commission Requests.
Prior to the last Delivery Date as contemplated in thisAgreement, the Company
will notify the Representatives promptly, and confirm the notice in writing,
(i) when any post-effective amendment to the Registration Statement or a new
registration statement relating to the Shares shall becomeeffective, or any
amendment or supplement to the Disclosure Package or the Prospectus or any
amended Prospectus shall have been used or filed, (ii) of the receipt of any
comments with respect to the Registration Statement from the Commission,(iii)
of any request by the Commission for any amendment to the Registration
Statement or the filing of a new registration statement or any amendment or
supplement to the Disclosure Package or the Prospectus or any document
incorporated thereinby reference or otherwise deemed to be a part thereof or
for additional information, (iv) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement or such new
registration statement or ofany order preventing or suspending the use of any
preliminary prospectus or the Prospectus, or any Issuer Free Writing
Prospectus, of the suspension of the qualification of the Shares for offering
or sale in any jurisdiction, or of the initiation orthreatening of any
proceedings for any of such purposes or of any examination pursuant to Section
8(e) of the 1933 Act concerning the Registration Statement and (v) if the
Company becomes the subject of a proceeding under Section 8Aof the 1933 Act.
With respect to the Shares, subject to Section 5(e), the Company will comply
with the requirements of Rule 430B, will prepare the Prospectus in the form
approved by the Representatives, will effect the filings required underRule
424(b) in the manner and within the time period specified therein (without
reliance on Rule 424(b)(8)) and will take such steps as it deems necessary to
ascertain promptly whether the Prospectus transmitted for filing under Rule
424(b) underthe 1933 Act Regulations was received for filing by the Commission
and, in the event that it was not, it will promptly file such Prospectus. The
Company will use its commercially reasonable efforts to prevent the issuance
of any stop order or otherorder and, if any stop order or other order is
issued, to obtain the lifting thereof as soon as possible. The Company shall
pay the required filing fees of the Commission relating to the Shares within
the time required by Rule 456(b)(1) (i) of the1933 Act Regulations without
regard to the proviso therein and otherwise in accordance with Rules 456(b)
and 457(r) of the 1933 Act Regulations.
(b)
Delivery of Registration Statements
. The Company will furnish to each Underwriter and counsel for the
Underwriters, upon request,without charge, signed or conformed copies of the
Registration Statement and of each amendment thereto (including exhibits filed
therewith or incorporated by reference therein and documents incorporated or
deemed to be incorporated by referencetherein or otherwise deemed to be a part
thereof) and signed or conformed copies of all consents and certificates of
experts. The copies of the Registration Statement and each amendment thereto
furnished to the Representatives will be identical tothe electronically
transmitted copies thereof filed with the Commission pursuant to EDGAR, except
to the extent permitted by Regulation
S-T.
(c)
Delivery of Prospectuses
. The Company has delivered to each Underwriter, without charge, as many
copies of each preliminaryprospectus as such Underwriter reasonably requested,
and the Company hereby consents to the use of such copies for purposes
permitted by the 1933 Act. The Company will furnish to each Underwriter,
without charge, during the period when a prospectusis required to be delivered
under the 1933 Act, such number of copies of the Prospectus (as amended or
supplemented) as such Underwriter may reasonably request, unless, with the
prior consent of the Representatives, such delivery requirement can
besatisfied by the provisions of Rule 172 of the 1933 Act Regulations. The
Prospectus and any amendments or supplements thereto furnished to the
Underwriters will be identical to the electronically transmitted copies
thereof filed with the Commissionpursuant to EDGAR, except to the extent
permitted by Regulation
S-T.
18
-------------------------------------------------------------------------------
(d)
Notice and Effect of Material Events
. The Company will comply with the 1933 Act,the 1933 Act Regulations, the 1934
Act and the 1934 Act Regulations, as applicable, so as to permit the
completion of the distribution of the Shares as contemplated in this Agreement
and in the Registration Statement, the Disclosure Package and theProspectus.
Prior to the completion of the distribution of the Shares by the Underwriters
and the last Delivery Date, the Company will immediately notify the
Representatives, and confirm such notice in writing, of (x) any filing made by
theCompany of information relating to the offering of the Shares with any
securities exchange or any other regulatory body in the United States, and (y)
any event or condition that results or is reasonably likely to result in a
Material AdverseChange, which (i) makes any statement in the Registration
Statement, the Disclosure Package or the Prospectus false or misleading or
(ii) which is not disclosed in the Registration Statement, the Disclosure
Package or the Prospectus. If,at any time when a prospectus is required by the
1933 Act to be delivered in connection with sales of the Shares, any event
shall occur or condition shall exist as a result of which it is necessary, in
the reasonable opinion of the Company, itscounsel, the Representatives or
counsel to the Underwriters, to amend or supplement the Registration Statement
or the Prospectus in order that the Prospectus not include any untrue
statement of a material fact or omit to state a material factnecessary in
order to make the statements therein not misleading in the light of the
circumstances existing at the time it is delivered to purchasers, or if for
any other reason it shall be necessary, in the reasonable opinion of the
Company, itscounsel, the Representatives or counsel to the Underwriters,
during such period to amend the Registration Statement or to file a new
registration statement or to amend or supplement any preliminary prospectus or
the Prospectus to comply with the1933 Act or the 1933 Act Regulations, the
Company will promptly notify the Representatives of such event or condition
and forthwith amend the Registration Statement, file such registration
statement and/or amend or supplement any preliminaryprospectus or the
Prospectus, subject to Section 5(e), so as to correct such untrue statement or
omission or effect such compliance, and the Company will furnish to each
Underwriter such number of written and electronic copies of such amendmentor
supplement as such Underwriter may reasonably request. If at any time
following the Applicable Time or at any time following the issuance of an
Issuer Free Writing Prospectus, any event shall occur or condition shall exist
as a result of whichthe Disclosure Package or such Issuer Free Writing
Prospectus, individually or together with other information that is part of
the Disclosure Package, as the case may be, conflicted or would conflict with
the information contained in theRegistration Statement or any other
registration statement relating to the Shares or included or would include an
untrue statement of a material fact or omitted or would omit to state a
material fact necessary in order to make the statementstherein, in the light
of the circumstances prevailing at that subsequent time, not misleading, the
Company will promptly notify the Representatives of such event and condition
and will promptly amend or supplement, at the Company's own expense,the
Disclosure Package or such Issuer Free Writing Prospectus, as the case may be,
to eliminate or correct such conflict, untrue statement or omission.
19
-------------------------------------------------------------------------------
(e)
Amendment to Prospectus or Registration Statement
. The Company will advise theRepresentatives promptly of any notice of its
intention to file or prepare any amendment to the Registration Statement or a
new registration statement relating to the Shares or any amendment or
supplement to any preliminary prospectus or theProspectus or supplement to the
Disclosure Package, and will furnish the Representatives with copies thereof a
reasonable amount of time prior to such proposed filing or use, as the case
may be, and will not file or use any such document withrespect to the Shares
without the consent of the Representatives, which consent shall not be
unreasonably withheld. Neither the consent of the Representatives, nor the
Representatives' delivery of any such amendment or supplement, shallconstitute
a waiver of any of the conditions set forth in Section 8 hereof. For purposes
of clarity, nothing in this Section 5(e) shall restrict the Company from
making any filings required in order to comply with its reporting
obligationsunder the 1934 Act or the 1934 Act Regulations; provided that the
Company shall give the Representatives written notice of such filings and
furnish the Representatives with copies of such filings a reasonable amount of
time prior to the proposedfiling, if such filings will amend or be
incorporated into the Disclosure Package or the Prospectus, and will not make
such filings to which the Representatives or counsel for the Underwriters
shall reasonably object.
(f)
No Stabilization or Manipulations
. The Company will not, and will cause its subsidiaries not to, take, directly
or indirectly, anyaction designed to, or that could reasonably be expected to,
cause or result in any stabilization or manipulation of the price of the
Shares.
(g)
DTC.
The Company will cooperate with the Underwriters and use its commercially
reasonable efforts to permit the Shares to beeligible for clearance,
settlement and trading through the facilities of DTC.
(h)
Blue Sky Qualifications.
The Company willqualify the Shares for offer and sale under the state
securities, or blue sky, laws of such jurisdictions as the Representatives
shall reasonably request and will continue such qualifications in effect so
long as required for the offering and resaleof the Shares;
provided
that the Company shall not be required to (i) qualify as a foreign corporation
or other entity or as a dealer in securities in any such jurisdiction where
they would not otherwise be required to so qualify,(ii) file any general
consent to service of process in any such jurisdiction or (iii) subject
themselves to taxation in any such jurisdiction if they are not otherwise so
subject.
(i)
Further Obligations
. In the event the Company, at any time, or from time to time, shall not have
sufficient funds topromptly pay in full any amount then due and payable to any
person pursuant to this Agreement, the Company shall promptly take all such
actions that do not require prior regulatory approval to obtain sufficient
funds to pay such amount and, if thefunds obtained from such actions shall not
be sufficient to pay such amount in full, the Company shall promptly take all
such further actions, including obtaining all required regulatory approvals,
to obtain sufficient additional funds necessary topay such amount in full.
(j)
Earnings Statement
. The Company shall timely file such reports pursuant to the 1934 Act,
asapplicable, as are necessary in order to make generally available to their
respective securityholders as soon as practicable an earnings statement for
the purposes of, and to provide the benefits contemplated by, the last
paragraph ofSection 11(a) of the 1933 Act.
20
-------------------------------------------------------------------------------
(k)
Reporting Requirements
. The Company, during the period when a prospectus isrequired to be delivered
under the 1933 Act (including in circumstances where such requirement may be
satisfied, with the prior consent of the Representatives, by Rule 172 under
the 1933 Act Regulations), will file all documents required to be filedwith
the Commission by the Company pursuant to the 1934 Act within the time periods
required by the 1934 Act and the 1934 Act Regulations.
(l)
Use of Proceeds
. The Company will use the proceeds received by it from the sale of the Shares
as described in the RegistrationStatement, the Prospectus and the Disclosure
Package.
(m)
Restriction on Sale of Securities
. For a period commencing on the datehereof and ending on the 60th day after
the date of the Prospectus, the Company will not, directly or indirectly, (A)
offer for sale, sell, pledge, or otherwise transfer or dispose of (or enter
into any transaction or device that is designedto, or could be expected to,
result in the disposition by any person at any time in the future of) any
Common Stock or securities convertible into or exercisable or exchangeable for
Common Stock (other than the Shares and shares issued pursuant toemployee
benefit plans, qualified stock option plans or other employee compensation
plans existing on the date hereof), or sell or grant options, rights or
warrants with respect to any Common Stock or securities convertible into or
exchangeable forCommon Stock (other than the Shares and the grant of options
pursuant to option plans existing on the date hereof), (B) enter into any swap
or other derivatives transaction that transfers to another, in whole or in
part, any of the economic benefitsor risks of ownership of such Common Stock,
whether any such transaction described in clause (A) or (B) above is to be
settled by delivery of Common Stock or other securities, in cash or otherwise,
(C) confidentially submit or file orcause to be confidentially submitted or
filed a registration statement, including any amendments thereto, with respect
to the registration of any Common Stock or securities convertible, exercisable
or exchangeable into Common Stock or any othersecurities of the Company (other
than any registration statement on Form
S-8),
or (D) publicly disclose the intention to do any of the foregoing, in each
case without the prior written consent of theRepresentatives, on behalf of the
Underwriters, and to cause each officer and director of the Company set forth
on Schedule IV hereto to furnish to the Representatives, prior to the date
hereof, a letter or letters, substantially in the form ofExhibit A hereto (the
"
Lock-Up
Agreements
").
(n)
Issuer Free WritingProspectuses
. The Company represents and agrees that, unless it obtains the prior written
consent of the Representatives, and each Underwriter represents and agrees
that, unless it obtains the prior written consent of the Company and
theRepresentatives, it has not made and will not make any offer relating to
the Shares that would constitute an "issuer free writing prospectus" (as
defined in Rule 433) or that would otherwise constitute a "free writing
prospectus"(as defined in Rule 405) required to be filed with the Commission.
Any such free writing prospectus consented to by the Company and the
Representatives is referred to herein as a "Permitted Free Writing
Prospectus." The Company representsthat it has treated, and agrees that it
will treat, each Permitted Free Writing Prospectus as an "issuer free writing
prospectus" (as defined in Rule 433(h)(i)) and has complied and will comply
with the requirements of Rule 433 applicableto any Permitted Free Writing
Prospectus, including timely filing with the Commission where required,
legending and record keeping.
21
-------------------------------------------------------------------------------
6.
Covenant of Underwriters
. Each Underwriter severally agrees that (i) suchUnderwriter shall not include
any "issuer information" (as defined in Rule 433 under the 1933 Act) in any
"free writing prospectus" (as defined in Rule 405 under the 1933 Act) used or
referred to by such Underwriter without theprior consent of the Company (any
such issuer information with respect to whose use the Company has given its
consent, "
Permitted Issuer Information
"); provided that no such consent shall be required with respect to any
suchissuer information contained in any document filed by the Company with the
Commission prior to the use of such free writing prospectus, and (ii) such
Underwriter is not subject to any pending proceeding under Section 8A of the
1933 Actwith respect to the offering (and will promptly notify the Company if
any such proceeding against it is initiated during any time that the delivery
of a prospectus is required by law in connection with the offering or sale of
the Shares or any othersecurities relating thereto).
7.
Expenses.
The Company agrees, whether or not the transactions contemplated by this
Agreement areconsummated, to pay all expenses, costs and fees incident to and
in connection with (a) the authorization, issuance, sale and delivery of the
Shares and any stamp duties payable in that connection, and the preparation
and printing ofcertificates for the Shares; (b) the preparation, printing and
filing under the 1933 Act of the Registration Statement (including any
exhibits thereto), any preliminary prospectus, the Prospectus, any Issuer Free
Writing Prospectus, and anyamendment or supplement thereto; (c) the
distribution of the Registration Statement (including any exhibits thereto),
any preliminary prospectus, the Prospectus, any Issuer Free Writing
Prospectus, and any amendment or supplement thereto, orany document
incorporated by reference therein, all as provided in this Agreement; (d) the
production and distribution of this Agreement, any supplemental agreement
among Underwriters, and any other related documents in connection with
theoffering, purchase, sale and delivery of the Shares; (e) the filing fees
incident to, and the reasonable fees and disbursements of counsel to the
Underwriters in connection with, determining the compliance of the terms of
the sale of the Shareswith FINRA's rules; (f) the inclusion of the Shares on
The Nasdaq Stock Market and/or any other exchange; (g) the qualification of
the Shares under the securities laws of the several jurisdictions as provided
in Section 5(h) andthe preparation, printing and distribution of a Blue Sky
Memorandum (including related fees and expenses of counsel to the Underwriters
up to a maximum of $5,000); (h) the investor presentations on any "road show"
undertaken in connectionwith the marketing of the Shares, including, without
limitation, expenses associated with any electronic road show, travel and
lodging expenses of the representatives and officers of the Company; and (i)
all other costs and expenses incident tothe performance of the obligations of
the Company under this Agreement. It is understood, however, that, except as
provided in this Section 7, Sections 9, 10(c) and 11 hereof, the Underwriters
will pay all of their own costs and expenses,including transfer taxes on
resale of any of the Shares by them.
8.
Conditions of Underwriters' Obligations
. The respectiveobligations of the Underwriters hereunder are subject to the
accuracy, when made and on each Delivery Date, of the representations and
warranties of the Company contained herein, or in certificates of any officer
of the Company or any of itssubsidiaries delivered pursuant to the provisions
hereof, to the performance by the Company of its obligations hereunder, and to
each of the following additional terms and conditions:
22
-------------------------------------------------------------------------------
(a)
Filing of Prospectus
. The Prospectus containing the Rule 430B Information shallhave been filed
with the Commission in the manner and within the time period required by Rule
424(b) (without reliance on Rule 424(b)(8)) (or a post-effective amendment
providing such information shall have been filed and become effective
inaccordance with the requirements of Rule 430B); all materials required to be
filed by the Company pursuant to Rule 433(d) under the 1933 Act shall have
been filed with the Commission within the applicable time period prescribed
for such filing byRule 433 under the 1933 Act. The Registration Statement is
effective and no stop order or other order referred to in Section 5(a)(iv)
hereof shall have been issued and no proceeding for that purpose shall have
been initiated or threatened; andall requests for additional information on
the part of the Commission shall have been complied with to the Representatives'
satisfaction.
(b)
Opinion of Counsel for Company
. Each of Holland & Knight LLP, Pennsylvania counsel for the Company,
andSullivan & Cromwell LLP, counsel for the Company, shall have furnished to
the Representatives its written opinion, as counsel to the Company, addressed
to the Underwriters and dated such Delivery Date, in form and substance
reasonablysatisfactory to the Representatives. Each such counsel may state
that, insofar as its opinion involves factual matters, it has relied, to the
extent it deems proper, upon certificates of officers of the Company or the
Bank and public officials.
(c)
Opinion of Counsel for Underwriters.
The Representatives shall have received from Covington & Burling LLP, counsel
for theUnderwriters, such opinion or opinions, dated such Delivery Date, with
respect to the issuance and sale of the Shares, the Registration Statement,
the Prospectus and the Disclosure Package and other related matters as the
Representatives mayreasonably require, and the Company shall have furnished to
such counsel such documents as they reasonably request for the purpose of
enabling them to pass upon such matters. Such counsel may state that, insofar
as its opinion involves factualmatters, it has relied, to the extent it deems
proper, upon certificates of officers of the Company or the Bank and public
officials.
(d)
Accountant's Comfort Letter
. At the time of execution of this Agreement, the Representatives shall have
received from KPMG LLP a letter, in form and substance reasonably satisfactory
to the Representatives, addressed to the Underwritersand dated the date hereof
(i) confirming that they are independent public accountants within the meaning
of the 1933 Act and are in compliance with the applicable requirements
relating to the qualification of accountants under Rule
2-01
of Regulation
S-X
of the Commission, and (ii) stating, as of the date hereof (or, with respect
to matters involving changes or developments since the respectivedates as of
which specified financial information is given in the most recent preliminary
prospectus, as of a date not more than three days prior to the date hereof),
the conclusions and findings of such firm with respect to the financialinformati
on and other matters ordinarily covered by accountants' "comfort letters" to
underwriters in connection with registered public offerings.
(e)
Bring-down Comfort Letter
. With respect to the letter of KPMG LLP referred to in the preceding
paragraph and delivered to theRepresentatives concurrently with the execution
of this Agreement (the "
initial letter
"), the Company shall have furnished to the Representatives a letter (the "
bring-down letter
") of such accountants,addressed to the Underwriters and dated such Delivery
Date (i) confirming that they are independent public accountants within the
meaning of the 1933 Act and are in compliance with the applicable requirements
relating to the qualification ofaccountants under Rule
2-01
of Regulation
S-X
of the Commission, (ii) stating, as of the date of the bring-down letter (or,
with respect to matters involvingchanges or developments since the respective
dates as of which specified financial information is given in the Prospectus,
as of a date not more than three days prior to the date of the bring-down
letter), the conclusions and findings of such firmwith respect to the
financial information and other matters covered by the initial letter, and
(iii) confirming in all material respects the conclusions and findings set
forth in the initial letter.
23
-------------------------------------------------------------------------------
(f)
Officers' Certificate
. The Company shall have furnished to theRepresentatives a certificate, dated
such Delivery Date, of its Chief Executive Officer and its Interim Chief
Financial Officer as to such matters as the Representatives may reasonably
request, including, without limitation, a statement:
(i) That the representations, warranties and agreements of the Company in
Section 1 are true and correct on and as of such Delivery Date,and the Company
has complied with all its agreements contained herein and satisfied all the
conditions on its part to be performed or satisfied hereunder at or prior to
such Delivery Date;
(ii) That no stop order suspending the effectiveness of the Registration
Statement has been issued; and no proceedings or examination for thatpurpose
have been instituted or, to the knowledge of such officers, threatened and the
Commission shall not have notified the Company of any objection to the use of
the form of the Registration Statement or any post-effective amendment thereto;
(iii) That they have examined the Registration Statement, the Prospectus and
the Disclosure Package, and, in their opinion, (1) theRegistration Statement,
as of its effective date, (2) the Prospectus, as of its date and on the
applicable Delivery Date, and (3) the Disclosure Package, as of the Applicable
Time, did not and do not contain any untrue statement of amaterial fact and
did not and do not omit to state a material fact required to be stated therein
or necessary to make the statements therein (except in the case of the
Registration Statement, in the light of the circumstances under which they
weremade) not misleading; and
(iv) To the effect of Section 8(g) (
provided
that no representation with respect to the judgment ofthe Representatives need
be made).
(g)
No Material Adverse Change
. No Material Adverse Effect shall have occurred or shall exist,which event or
condition is not described in the Registration Statement, Prospectus or the
Disclosure Package, and the effect of which is such as to make it, in the
judgment of the Representatives, impracticable or inadvisable to proceed with
thecompletion of the offering of the Shares on the terms and in the manner
contemplated in the Registration Statement, the Prospectus and the Disclosure
Package or to enforce contracts for the sale of the Shares.
(h)
No Downgrade
. Subsequent to the execution and delivery of this Agreement (i) no
downgrading shall have occurred in the ratingaccorded the Company's debt
securities or preferred stock by any "nationally recognized statistical rating
organization" (as defined by the Commission in Section 3(a)(62) of the 1934
Act), and (ii) no such organization shallhave publicly announced that it has
under surveillance or review, with possible negative implications, its rating
of any of the Company's debt securities or preferred stock.
24
-------------------------------------------------------------------------------
(i)
Other Events
. Subsequent to the execution and delivery of this Agreement thereshall not
have occurred any of the following: (i) a suspension or material limitation in
trading in securities generally on any securities exchange that has registered
with the Commission under Section 6 of the 1934 Act (including the NewYork
Stock Exchange, The Nasdaq Global Select Market, The Nasdaq Global Market or
The Nasdaq Capital Market), (ii)
trading in any securities of the Company on any exchange or in the
over-the-counter
market, shall have been suspended or materially limited or the settlement of
such trading generally shall have been materially disrupted or minimum prices
shall have been established on anysuch exchange or such market by the
Commission, by such exchange or by any other regulatory body or governmental
authority having jurisdiction, (iii) a general moratorium on commercial
banking activities shall have been declared by federal orstate authorities, or
(iv) there shall have occurred such a material adverse change in general
economic, political or financial conditions, including, without limitation, as
a result of terrorist activities after the date hereof (or the effectof
international conditions on the financial markets in the United States shall
be such) or any other calamity or crisis either within or outside the United
States, the effect of which is such as to make it, in the judgment of the
Representatives,impracticable or inadvisable to proceed with the completion of
the offering or delivery of the Shares being delivered on such Delivery Date
on the terms and in the manner contemplated in the Registration Statement, the
Prospectus and the DisclosurePackage or to enforce contracts for the sale of
the Shares.
(j)
No Legal Impediment to Issuance and/or Sale
. No action shall havebeen taken and no statute, rule, regulation or order
shall have been enacted, adopted or issued by any Governmental Entity that
would, as of each Delivery Date, prevent the offer, issuance or sale of the
Shares; and no injunction or order of anyfederal, state or foreign court shall
have been issued that would, as of each Delivery Date, prevent the issuance or
sale of the Shares.
(k)
Exchange Listing
. The Shares shall have been approved for inclusion by the Nasdaq Stock
Market, subject only to official notice ofissuance and evidence of
satisfactory distribution.
(l)
Lock-Up
Agreements
. The
Lock-Up
Agreements between the Representatives and the officers and directors of the
Company set forth on Schedule IV, delivered to the Representatives on or
before the date of this Agreement, shall be in full forceand effect on such
Delivery Date.
(m)
Interim CFO Certificate
. On the date hereof and on each Delivery Date, the Company shallhave
delivered to the Representatives a certificate of the Interim Chief Financial
Officer of the Company, in form and substance satisfactory to you.
Additional Documents
. On or prior to each Delivery Date, the Company shall have furnished to the
Underwriters such further certificatesand documents as the Representatives may
reasonably request.
25
-------------------------------------------------------------------------------
9.
Indemnification and Contribution.
(a)
Indemnification of Underwriters.
The Company agrees to indemnify and hold harmless each Underwriter, their
respective affiliates(as such term is defined in Rule 405 of the 1933 Act
Regulations), partners, directors, officers, employees and agents and each
person, if any, who controls (within the meaning of Section 15 of the 1933 Act
or Section 20 of the 1934 Act)any Underwriter (each such person, a
"controlling person"):
(i) against any and all loss, liability, claim, damage and expense whatsoever, as incurred, arising out
of(A) any untrue statement or alleged untrue statement of a material fact included in the Registration
Statement (or any amendment thereto) or the omission or alleged omission therefrom of a material fact
required to be stated therein ornecessary to make the statements therein not misleading, (B) any untrue
statement or alleged untrue statement of a material fact included in any preliminary prospectus, the
Disclosure Package, the Prospectus or any Issuer Free WritingProspectus, or any amendment or supplement
thereto, or the omission or alleged omission therefrom of a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of theaggregate amount paid
in settlement of any litigation, or any investigation or proceeding
by any governmental agency or body, commenced or threatened,
or of any claim whatsoever based upon any such untrue statement
or omission, or any such allegeduntrue statement or omission;
provided that (subject to Section 9(d) hereof) any such settlement
is effected with the written consent of the Company; and
(iii) against any and all expense whatsoever, as incurred (including the
fees and disbursements of counsel chosen bythe Representatives),
reasonably incurred in investigating, preparing or defending
against any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any
claim whatsoever based upon any suchuntrue statement or omission,
or any such alleged untrue statement or omission, to the extent
that any such expense is not paid under (1) or (2) above;
provided
, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of anyuntrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by
the Underwriters through the Representatives expressly for inclusion in the
Prospectus(or any amendment or supplement thereto) and the parties hereto
agree that such information consists only of the following: (i) the concession
figures appearing in the first paragraph under the caption "Underwriting--Discou
nts andExpenses", and (ii) the information relating to short sales and
stabilizing transactions under the caption "Underwriting--Stabilization
Transactions" in each of the most recent preliminary prospectus supplement,
preliminaryprospectus and the Prospectus (collectively, the "Underwriters'
Information").
(b)
Indemnification of the Company,Directors and Officers
. Each Underwriter, severally and not jointly, agrees to indemnify and hold
harmless the Company, its directors, officers, employees and agents, and each
person, if any, who controls the Company within the meaning ofSection 15 of
the 1933 Act or Section 20 of the 1934 Act against any and all loss,
liability, claim, damage and expense described in the indemnity contained in
Section (9) above, as incurred, but only with respect to untrue statementsor
omissions, or alleged untrue statements or omissions, made in conformity with
the Underwriters' Information provided by such Underwriter.
26
-------------------------------------------------------------------------------
(c)
Actions Against Parties; Notification
. Each indemnified party shall give noticeas promptly as reasonably
practicable to each indemnifying party of any action commenced against it in
respect of which indemnity may be sought hereunder, but failure to so notify
an indemnifying party shall not relieve such indemnifying party fromany
liability hereunder to the extent it is not materially prejudiced as a result
thereof, and in any event shall not relieve it from any liability which it may
have otherwise than on account of this indemnity agreement. An indemnifying
party mayparticipate at its own expense in the defense of any such action or,
if it so elects within a reasonable time after receipt of such notice, to
assume the defense of any suit brought to enforce any such claim; but if it so
elects to assume thedefense, such defense shall be conducted by counsel chosen
by it and approved by the indemnified parties, which approval shall not be
unreasonably withheld. In the event that an indemnifying party elects to
assume the defense of any such suit andretain such counsel, the indemnified
party or parties shall bear the fees and expenses of any additional counsel
thereafter retained by such indemnified party or parties;
provided
,
however
, that the indemnified party or parties shallhave the right to employ counsel
(in addition to local counsel) to represent the indemnified party or parties
who may be subject to liability arising out of any action in respect of which
indemnity may be sought against the indemnifying party if,(i) the employment
of such counsel shall have been authorized in writing by one of the
indemnifying parties in connection with the defense of such action, (ii) the
indemnifying parties shall not have employed counsel to have charge of
thedefense of such action within a reasonable time after notice of
commencement of the action, or (iii) in the reasonable judgment of counsel for
the indemnified party or parties, there may be legal defenses available to
such indemnified personwhich are different from or in addition to those
available to such indemnifying person, in which event the reasonable fees and
expenses of appropriate separate counsel shall be borne by the indemnifying
party. In no event shall the indemnifyingparties be liable for fees and
expenses of more than one counsel (in addition to any local counsel) separate
from their own counsel for all indemnified parties in connection with any one
action or separate but similar or related actions in the samejurisdiction
arising out of the same general allegations or circumstances. No indemnifying
party shall, without the prior written consent of the indemnified parties,
settle or compromise or consent to the entry of any judgment with respect to
anylitigation, or any investigation or proceeding by any governmental agency
or body, commenced or threatened, or any claim whatsoever in respect of which
indemnification or contribution could be sought under this Section 9 (whether
or not theindemnified parties are actual or potential parties thereto), unless
such settlement, compromise or consent (i) includes an unconditional release
of each indemnified party from all liability arising out of such litigation,
investigation,proceeding or claim and (ii) does not include a statement as to
or an admission of fault, culpability or a failure to act by or on behalf of
any indemnified party.
(d)
Settlement without Consent if Failure to Reimburse.
If at any time an indemnified party shall have validly requested anindemnifying
party to reimburse the indemnified party for fees and expenses of counsel,
such indemnifying party agrees that it shall be liable for any settlement of
the nature contemplated by Section 9(a)(2) effected without its written
consentif (i) such settlement is entered into more than 45 days after receipt
by such indemnifying party of the aforesaid request, (ii) such indemnifying
party shall have received notice of the terms of such settlement at least 30
days prior tosuch settlement being entered into and (iii) such indemnifying
party shall not have reimbursed such indemnified party in accordance with such
request prior to the date of such settlement.
27
-------------------------------------------------------------------------------
(e)
Contribution
. In order to provide for just and equitable contribution incircumstances
under which the indemnification provided for in this Section 9 is for any
reason held to be unavailable to an indemnified party or insufficient in
respect of any losses, liabilities, claims, damages or expenses referred
totherein, then each indemnifying party shall contribute to the aggregate
amount of such losses, liabilities, claims, damages and expenses incurred by
such indemnified party, as incurred, (i) in such proportion as is appropriate
to reflect therelative benefits received by the Company, on the one hand, and
the Underwriters, on the other hand, from the offering of the Shares pursuant
to this Agreement or (ii) if the allocation provided by clause (i) is not
permitted by applicablelaw, in such proportion as is appropriate to reflect
not only the relative benefits referred to in clause (i) above but also the
relative fault of the Company, on the one hand, and the Underwriters, on the
other hand, in connection with thestatements or omissions which resulted in
such losses, liabilities, claims, damages or expenses, as well as any other
relevant equitable considerations.
The relative benefits received by the Company, on the one hand, and the
Underwriters, on the other hand, in connection with the offering of the
Sharespursuant to this Agreement shall be deemed to be in the same respective
proportions as the total net proceeds from the offering of the Shares pursuant
to this Agreement (before deducting expenses) received by the Company and the
total commissionreceived by the Underwriters bears to the aggregate initial
offering price of the Shares.
The relative fault of the Company, on the one hand, and theUnderwriters, on
the other hand, shall be determined by reference to, among other things,
whether any such untrue or alleged untrue statements of a material fact or
omission or alleged omission to state a material fact relates to informationsupp
lied by the Company or by the Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
The Company and the Underwriters agree that it would not be just and equitable
if contribution pursuant to this Section 9 were determined by pro
rataallocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of
the equitable considerations referred to above in this Section 9. The
aggregate amount oflosses, liabilities, claims, damages and expenses incurred
by an indemnified party and referred to above in this Section 9 shall be
deemed to include any legal or other expenses reasonably incurred by such
indemnified party in investigating,preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based upon any such
untrue or alleged untrue statement or omission or allegedomission.
Notwithstanding the provisions of this Section 9, no Underwriter shall be
required to contribute any amount in excess of the underwritingdiscount
received by such Underwriter in connection with the Shares underwritten by it
and distributed to the public.
28
-------------------------------------------------------------------------------
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the 1933 Act)shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 9, eachperson, if any, who controls an
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act and the respective partners, directors, officers, employees and
agents of such Underwriter or any such controllingperson shall have the same
rights to contribution as such Underwriter, while each officer, employee,
agent and director of the Company, and each person, if any, who controls the
Company within the meaning of Section 15 of the 1933 Act orSection 20 of the
1934 Act shall have the same rights to contribution as the Company. The
obligations of the Underwriters in this Section 9 to contribute are several in
proportion to their respective underwriting obligations and not joint.
10.
Defaulting Underwriters
.
(a) If, on any Delivery Date, any Underwriter defaults in its obligations to
purchase the Shares that it has agreed to purchase under thisAgreement, the
remaining
non-defaulting
Underwriters may in their discretion arrange for the purchase of such Shares
by the
non-defaulting
Underwriters or other personssatisfactory to the Company on the terms
contained in this Agreement. If, within 36 hours after any such default by any
Underwriter, the
non-defaulting
Underwriters do not arrange for the purchase of suchShares, then the Company
shall be entitled to a further period of 36 hours within which to procure
other persons satisfactory to the
non-defaulting
Underwriters to purchase such Shares on such terms. In theevent that within
the respective prescribed periods, the
non-defaulting
Underwriters notify the Company that they have so arranged for the purchase of
such Shares, or the Company notifies the
non-defaulting
Underwriters that it has so arranged for the purchase of such Shares, either the
non-defaulting
Underwriters or the Company may postpone such Delivery Date forup to five full
business days in order to effect any changes that in the opinion of counsel
for the Company or counsel for the Underwriters may be necessary in the
Registration Statement, the Prospectus, the Disclosure Package or in any
otherdocument or arrangement, and the Company agrees to promptly prepare any
amendment or supplement to the Registration Statement, the Prospectus, the
Disclosure Package or in any such other document or arrangement that effects
any such changes. As usedin this Agreement, the term "Underwriter" includes,
for all purposes of this Agreement unless the context requires otherwise, any
party not listed in Schedule I hereto that, pursuant to this Section 10,
purchases Shares that adefaulting Underwriter agreed but failed to purchase.
(b) If, on any Delivery Date, after giving effect to any arrangements for
thepurchase of the Shares of a defaulting Underwriter or Underwriters by the
non-defaulting
Underwriters and the Company as provided in paragraph (a) above, the total
number of Shares that remainsunpurchased does not exceed
one-tenth
of the total number of Shares, then the Company shall have the right to
require each
non-defaulting
Underwriter to purchase thetotal number of Shares that such Underwriter agreed
to purchase hereunder plus such Underwriter's
pro
rata
share (based on the total number of Shares that such Underwriter agreed to
purchase hereunder) of the Shares of suchdefaulting Underwriter or
Underwriters for which such arrangements have not been made; provided that the
non-defaulting
Underwriters shall not be obligated to purchase more than 110% of the total
number ofShares that it agreed to purchase on such Delivery Date pursuant to
the terms of Section 2.
29
-------------------------------------------------------------------------------
(c) If, on any Delivery Date, after giving effect to any arrangements for the
purchase ofthe Shares of a defaulting Underwriter or Underwriters by the
non-defaulting
Underwriters and the Company as provided in paragraph (a) above, the total
number of Shares that remains unpurchased exceeds
one-tenth
of the total number of Shares to be purchased on such Delivery Date, or if the
Company did not exercise the right described in paragraph (b) above, then this
Agreement shall terminate withoutliability on the part of the
non-defaulting
Underwriters. Any termination of this Agreement pursuant to this Section 10
shall be without liability on the part of the Company, except that the Company
willcontinue to be liable for the payment of expenses as set forth in Sections
7 and except that the provisions of Section 1, 9, 13, 15, 17, 19, 20 and 21
shall not terminate and shall remain in effect.
(d) Nothing contained herein shall relieve a defaulting Underwriter of any
liability it may have to the Company or any
non-defaulting
Underwriter for damages caused by its default.
11.
Termination.
(a) The Representatives may terminate this Agreement, by notice to the
Company, at any time at or prior to the Initial Delivery Date if, sincethe
time of execution of this Agreement or since the respective dates as of which
information is given in the Registration Statement, the Disclosure Package or
the Prospectus, (i) there has occurred any Material Adverse Effect, or(ii)
there has occurred any material adverse change in the financial markets in the
United States, any outbreak of hostilities or escalation thereof or any other
calamity or crisis, or any change or development involving a prospective
change innational political, financial or economic conditions, in each case
the effect of which is such as to make it, in the judgment of the
Representatives, impracticable or inadvisable to proceed with the completion
of the offering of the Shares on theterms and in the manner contemplated in
the Registration Statement, the Prospectus and the Disclosure Package or to
enforce contracts for the sale of the Shares, or (iii) trading in any
securities of the Company has been suspended or limited bythe Commission or by
the Nasdaq, or if trading generally on the New York Stock Exchange or the
Nasdaq has been suspended or limited, or minimum or maximum prices for trading
have been fixed, or maximum ranges for prices have been required, by any
ofsaid exchanges or by such system or by order of the Commission, FINRA or any
other governmental authority, or (iv) a banking moratorium has been declared
by the United States, New York, New Jersey or Pennsylvania authorities or a
materialdisruption has occurred in commercial banking or securities settlement
or clearances services in the United States.
(b)
Liabilities
. If this Agreement is terminated pursuant to this Section, such termination
shall be without liability of any party to any other party except as provided
in Section 7 hereof, and provided further that Sections 1, 9, 14, 16,18, 20,
21, 22 and 27 hereof shall survive such termination and remain in full force
and effect.
12.
Reimbursement ofUnderwriters' Expenses
. If (i) this Agreement is terminated pursuant to Section 11(a), as a result
of clause (iii) thereof, and trading generally shall not have been have been
suspended or materially limited on or by any ofthe New York Stock Exchange or
The Nasdaq Stock Market, (ii) the Company for any reason fails to tender the
Shares for delivery to the Underwriters (other than pursuant to clauses (i),
(iii), (iv) and (v) of Section 8(i)) or(iii) the Underwriters decline to
purchase the Shares for any reason permitted under this
30
-------------------------------------------------------------------------------
Agreement (other than pursuant to clauses (i), (iii), (iv) and (v) of Section
8(i)), the Company agrees to reimburse the Underwriters for all
out-of-pocket
costs and expenses (including the fees and expenses of their counsel)
reasonably incurred by the Underwriters in connection with this Agreement and
the offering contemplated hereby; provided, ifthe conditions in clauses (ii)
and (iii) of this section relate to the Option Shares only, then the
obligation in this section shall relate only to the reimbursement of out of
pocket costs and expenses reasonably incurred by the Underwriters inconnection
with the proposed purchase of the Option Shares; provided, further, in the
case of a termination pursuant to Section 10, the Company shall have no
obligation to reimburse a defaulting underwriter for such costs and expenses.
13.
Research Analyst Independence.
The Company acknowledges that the Underwriters' research analysts and research
departments arerequired to be independent from their respective investment
banking divisions and are subject to certain regulations and internal
policies, and that such Underwriters' research analysts may hold views and
make statements or investmentrecommendations and/or publish research reports
with respect to the Company and/or the offering that differ from the views of
their respective investment banking divisions. The Company hereby waives and
releases, to the fullest extent permitted bylaw, any claims that the Company
may have against the Underwriters with respect to any conflict of interest
that may arise from the fact that the views expressed by their independent
research analysts and research departments may be different fromor
inconsistent with the views or advice communicated to the Company by such
Underwriters' investment banking divisions. The Company acknowledges that each
of the Underwriters is a full service securities firm and as such from time to
time,subject to applicable securities laws, may effect transactions for its
own account or the account of its customers and hold long or short positions
in debt or equity securities of the companies that may be the subject of the
transactionscontemplated by this Agreement.
14.
No Fiduciary Duty.
The Company acknowledges and agrees that in connection with this offering,sale
of Shares or any other services the Underwriters may be deemed to be providing
hereunder, notwithstanding any preexisting relationship, advisory or
otherwise, between the parties or any oral representations or assurances
previously orsubsequently made by the Underwriters: (i) no fiduciary or agency
relationship between the Company and any other person, on the one hand, and
the Underwriters, on the other hand, exists; (ii) the Underwriters are not
acting as advisors,expert or otherwise and are not providing a recommendation
or investment advice, to the Company, including, without limitation, with
respect to the determination of the public offering price of the Shares, and
such relationship between the Company,on the one hand, and the Underwriters,
on the other hand, is entirely and solely commercial, based on arm's length
negotiations and, as such, not intended for use by any individual for
personal, family or household purposes; (iii) anyduties and obligations that
the Underwriters may have to the Company shall be limited to those duties and
obligations specifically stated herein; and (iv) the Underwriters and their
respective affiliates may have interests that differ fromthose of the Company.
The Company hereby (a) waive any claims that the Company may have against the
Underwriters with respect to any breach of fiduciary duty in connection with
this offering and (b) agree that none of the activities of theUnderwriters in
connection with the transactions contemplated herein constitutes a
recommendation, investment advice or solicitation of any action by the
Underwriters with respect to any entity or natural person. Each of the Company
has consultedtheir own legal, accounting, financial, regulatory and tax
advisors to the extent deemed appropriate.
31
-------------------------------------------------------------------------------
15.
Notices, etc.
All statements, requests, notices and agreements hereunder shall bein writing,
shall be deemed to have been duly given if mailed or transmitted and confirmed
by any standard form of telecommunication, and (a) if to the Underwriters,
shall be delivered or sent by mail to Piper Sandler & Co., 1251Avenue of the
Americas, 6th Floor, New York, New York 10020, Attention: General Counsel, and
BofA Securities, Inc., One Bryant Park, New York, New York 10036, Attention:
Syndicate Department with a copy to: Attention: ECM Legal, with a copy to
Covington & Burling, 620 Eighth Avenue, New York, New York 10018, Attention:
Michael P. Reed, Esq. and Charlotte May, Esq.; and (b) if to the Company,
shall be delivered or sent by mail to the Company at P.O. Box 4887,
Lancaster,Pennsylvania 17604, Attention: General Counsel, with a copy to
Sullivan & Cromwell LLP, 125 Broad Street, New York, New York 10004,
Attention: Catherine M. Clarkin, Esq. Any such statements, requests, notices
or agreements shall take effectat the time of receipt thereof. The Company
shall be entitled to act and rely upon any request, consent, notice or
agreement given or made on behalf of the Underwriters by the Representatives.
16.
Persons Entitled to Benefit of Agreement.
This Agreement shall inure to the benefit of and be binding upon each
Underwriter, theCompany and their respective successors and the officers and
directors and any controlling persons and other persons referred to in Section
9 hereof and their heirs and legal representatives. Nothing in this Agreement
is intended or shall beconstrued to give any other person any legal or
equitable right, remedy or claim under or in respect of this Agreement or any
provision contained herein. No purchaser of Shares from any Underwriter shall
be deemed to be a successor merely by reasonof such purchase.
17.
Entire Agreement.
This Agreement constitutes the entire agreement of the parties to this
Agreement andsupersedes all prior written or oral and all contemporaneous oral
agreements, understandings and negotiations with respect to the subject matter
hereof.
18.
Survival.
The respective indemnities, representations, warranties and agreements of the
Company, the Bank and the Underwriterscontained in this Agreement or made by
or on behalf of them, respectively, pursuant to this Agreement, shall survive
the delivery of and payment for the Shares and shall remain in full force and
effect, regardless of any investigation made by or onbehalf of any of them or
any person controlling any of them.
19.
Definition of the Terms "Business Day","Affiliate" and "Subsidiary"
. For purposes of this Agreement, (a) "
business day
" means each Monday, Tuesday, Wednesday, Thursday or Friday that is not a day
on which banking institutions in New Yorkare generally authorized or obligated
by law or executive order to close, and (b) "
affiliate
" and "
subsidiary
" have the meanings set forth in Rule 405 under the 1933 Act.
20.
Governing Law
. This Agreement shall be governed by and construed in accordance with the
laws of the State of New York withoutregard to conflict of laws principles.
21.
Jurisdiction
. The Company hereby irrevocably submits to the exclusive jurisdiction of(i)
the federal courts of the United States located in the City and County of New
York, Borough of Manhattan and (ii) the courts of the State of New York
located in the City and County of New York, Borough of Manhattan, in
connection withany suit, action or proceeding related to this Agreement or any
of the matters contemplated hereby.
32
-------------------------------------------------------------------------------
22.
Waiver of Jury Trial
. Each of the parties hereto hereby irrevocably waive, to thefullest extent
permitted by applicable law, any and all right to trial by jury in any legal
proceeding arising out of or relating to this Agreement or the transactions
contemplated hereby.
23.
Counterparts.
This Agreement may be executed in one or more counterparts and, if executed in
more than one counterpart, theexecuted counterparts shall each be deemed to be
an original but all such counterparts shall together constitute one and the
same agreement. The words "execution," "signed," "signature," and words of
like import in thisAgreement or in any other certificate, agreement or
document related to this Agreement shall include images of manually executed
signatures transmitted by facsimile or other electronic format (including,
without limitation, "pdf","tif" or "jpg") and other electronic signatures
(including, without limitation, DocuSign and AdobeSign). The use of electronic
signatures and electronic records (including, without limitation, any contract
or other recordcreated, generated, sent, communicated, received, or stored by
electronic means) shall be of the same legal effect, validity and
enforceability as a manually executed signature or use of a paper-based
record-keeping system to the fullest extentpermitted by applicable law,
including the Federal Electronic Signatures in Global and National Commerce
Act, the New York State Electronic Signatures and Records Act and any other
applicable law, including, without limitation, any state law basedon the
Uniform Electronic Transactions Act or the Uniform Commercial Code.
24.
Amendments or Waivers.
No amendment or waiver ofany provision of this Agreement, nor any consent or
approval to any departure therefrom, shall in any event be effective unless
the same shall be in writing and signed by the parties hereto.
25.
Partial Enforceability
. The invalidity or unenforceability of any Section, paragraph or provision of
this Agreement shall notaffect the validity or enforceability of any other
Section, paragraph or provision hereof. If any Section, paragraph or provision
of this Agreement is for any reason determined to be invalid or unenforceable,
there shall be deemed to be made suchminor changes (and only such minor
changes) as are necessary to make it valid and enforceable.
26.
Headings.
The headings hereinare inserted for convenience of reference only and are not
intended to be part of, or to affect the meaning or interpretation of, this
Agreement.
27.
Recognition of the U.S. Special Resolution Regimes
.
(a) In the event that any Underwriter that is a Covered Entitybecomes subject
to a proceeding under a U.S. Special Resolution Regime, the transfer from such
Underwriter of this Agreement, and any interest and obligation in or under
this Agreement, will be effective to the same extent as the transfer would
beeffective under the U.S. Special Resolution Regime if this Agreement, and
any such interest and obligation, were governed by the laws of the United
States or a state of the United States.
In the event that any Underwriter that is a Covered Entity or a BHC Act
Affiliate of such Underwriter becomes subject to a proceeding under a U.S.
SpecialResolution Regime, Default Rights under this Agreement that may be
exercised against such Underwriter are permitted to be exercised to no greater
extent than such Default Rights could be exercised under the U.S. Special
Resolution Regime if thisAgreement were governed by the laws of the United
States or a state of the United States.
33
-------------------------------------------------------------------------------
For purposes of this Section 26, (A) "
BHC Act Affiliate
" has the meaningassigned to the term "
affiliate
" in, and shall be interpreted in accordance with, 12 U.S.C. (s) 1841(k); (B) "
Covered Entity
" means any of the following: (i) a "covered entity" asthat term is defined
in, and interpreted in accordance with, 12 C.F.R. (s) 252.82(b); (ii) a
"covered bank" as that term is defined in, and interpreted in accordance with,
12 C.F.R. (s) 47.3(b); or (iii) a "coveredFSI" as that term is defined in, and
interpreted in accordance with, 12 C.F.R. (s) 382.2(b); (C) "
Default Right
" has the meaning assigned to that term in, and shall be interpreted in
accordance with, 12 C.F.R.(s)(s) 252.81, 47.2 or 382.1, as applicable; and (D)
"
U.S. Special Resolution Regime
" means each of (i) the Federal Deposit Insurance Act and the regulations
promulgated thereunder and (ii) Title II of theDodd-Frank Wall Street Reform
and Consumer Protection Act and the regulations promulgated thereunder.
[Signature Page Follows]
34
-------------------------------------------------------------------------------
If the foregoing correctly sets forth the agreement among the Company and the
Underwriters, please indicateyour acceptance in the space provided for that
purpose below.
Very truly yours,
F
ULTON
F
INANCIAL
C
ORPORATION
By: /s/ Curtis J. Myers
Name: Curtis J. Myers
Title: Chief Executive Officer
35
-------------------------------------------------------------------------------
Accepted:
P
IPER
S
ANDLER
& C
O
.
B
OF
A S
ECURITIES
, I
NC
.
As Representatives of the several
Underwriters named in Schedule I
attached hereto,
By P
IPER
S
ANDLER
& C
O
.
By: /s/ Neil Riley
Name: Neil Riley
Title: Managing Director
By B
OF
A S
ECURITIES
, I
NC
.
By: /s/ Pankaj Vasudev
Name: Pankaj Vasudev
Title: Managing Director
36
-------------------------------------------------------------------------------
SCHEDULE I
Underwriters Number of
Shares of
Firm
Shares
Piper Sandler & Co. 10,000,000
BofA Securities, Inc. 6,666,667
Total 16,666,667
37
-------------------------------------------------------------------------------
SCHEDULE II
ORALLY CONVEYED PRICING INFORMATION
1. Thepublic offering price per share for the Shares will be $15.00 per share.
2. 16,666,667 Firm Shares and 2,500,000 Option Shares.
38
-------------------------------------------------------------------------------
SCHEDULE III
ISSUER GENERAL USE FREE WRITING PROSPECTUS
None
39
-------------------------------------------------------------------------------
SCHEDULE IV
PERSONS DELIVERING
LOCK-UP
AGREEMENTS
Directors
Jennifer Craighead Carey
Lisa M. Crutchfield
Denise L. Devine
Steven S. Etter
George K. Martin
James R. Moxley III
Antionette M. Pergolin
Scott A. Snyder, Ph.D.
Ronald H. Spair
E. Philip Wenger
Officers
Curtis J. Myers
Beth Ann L. Chivinski
Anthony L. Cossetti
Andy B. Fiol
Natasha R. Luddington
Atul Malhotra
Meg R. Mueller
Angela M. Sargent
Angela M. Snyder
Karthik K. Sridharan
Bernadette M. Taylor
40
-------------------------------------------------------------------------------
EXHIBIT A
LOCK-UP
LETTER AGREEMENT
P
IPER
S
ANDLER
& C
O
.
B
OF
A S
ECURITIES
, I
NC
.
As Representatives of the several
Underwriters named inSchedule I attached hereto,
c/o Piper Sandler & Co.
1251 Avenue of the Americas
6th Floor
New York, New York 10020
c/o BofA Securities, Inc.
One Bryant Park
New York, New York 10036
Ladies and Gentlemen:
The undersigned understands that you andcertain other firms (the "
Underwriters
") propose to enter into an Underwriting Agreement (the "
Underwriting Agreement
") with Fulton Financial Corporation, a Pennsylvania corporation (the"
Company
"), providing for the purchase by the Underwriters of shares (the "
Stock
") of Common Stock, par value $2.50 per share (the "
Common Stock
"), of the Company, and that theUnderwriters propose to offer the Stock to the
public (the "
Offering
"). Capitalized terms used but not defined herein shall have the respective
meanings ascribed to such terms in the Underwriting Agreement.
In consideration of the execution of the Underwriting Agreement by the
Underwriters, and for other good and valuable consideration, the undersigned
herebyirrevocably agrees that, without the prior written consent of Piper
Sandler & Co. and BofA Securities, Inc., on behalf of the Underwriters, the
undersigned will not, directly or indirectly, (1) offer for sale, sell,
pledge, orotherwise transfer or dispose of (or enter into any transaction or
device that is designed to, or could be expected to, result in the transfer or
disposition by any person at any time in the future of) any shares of Common
Stock (including, withoutlimitation, shares of Common Stock that may be deemed
to be beneficially owned by the undersigned in accordance with the rules and
regulations of the Securities and Exchange Commission and shares of Common
Stock that may be issued upon exercise ofany options or warrants) or
securities convertible into or exercisable or exchangeable for Common Stock,
(2) enter into any swap or other derivatives transaction that transfers to
another, in whole or in part, any of the economic benefits orrisks of
ownership of shares of Common Stock, whether any such transaction described in
clause (1) or (2) above is to be settled by delivery of Common Stock or other
securities, in cash or otherwise,
(3) make any demand foror exercise any right or cause to be confidentially
submitted or filed a registration statement, including any amendments thereto,
with respect to the registration of any shares of Common Stock or securities
convertible into or exercisable orexchangeable for Common Stock or any other
securities of the Company, or (4) publicly disclose the intention to do any of
the foregoing for a period commencing on the date hereof and ending on the
60th day after the date of the Prospectusrelating to the Offering (such
60-day
period, the "
Lock-Up
Period
").
The foregoing restrictions are expressly agreed to preclude the undersigned
from engaging in any hedging or other transaction which is designed to or
whichreasonably could be expected to lead to or result in a sale or
disposition of Common Stock or any other securities of the Company even if
such Common Stock or other securities of the Company would be disposed of by
someone other than theundersigned, including, without limitation, any short
sale or any purchase, sale or grant of any right (including without limitation
any put or call option, forward, swap or any other derivative transaction or
instrument) with respect to any CommonStock, or any other security of the
Company that includes, relates to, or derives any significant part of its
value from Common Stock or other securities of the Company.
41
-------------------------------------------------------------------------------
The restrictions set forth in this
Lock-Up
Letter Agreement shallnot apply to (a) bona fide gifts, sales or other
dispositions of shares of any class of the Company's capital stock, in each
case that are made exclusively between and among the undersigned or members of
the undersigned's family, oraffiliates of the undersigned (including any
trust, family limited partnership or similar entity for the direct or indirect
benefit of the undersigned or the immediate family of the undersigned),
including its partners (if a partnership) or members(if a limited liability
company);
provided
that it shall be a condition to any transfer pursuant to this clause (a) that
(i) the transferee/donee agrees to be bound in writing by the terms of this
Lock-Up
Letter Agreement to the same extent as if the transferee/donee were a party
hereto and (ii) each party (donor, donee, transferor or transferee) shall not
be required by law (including withoutlimitation the disclosure requirements of
the Securities Act of 1933, as amended (the "
Securities Act
"), and the Securities Exchange Act of 1934, as amended (the "
Exchange Act
")) to make, and shallagree to not voluntarily make, any filing or public
announcement of the transfer or disposition prior to the expiration of the
60-day
period referred to above, (b) transfers by will or intestate upon thedeath of
the undersigned;
provided
that the transferee agrees to be bound in writing by the terms of this
Lock-Up
Letter Agreement to the same extent as if such transferee were a party
hereto,(c) the exercise of warrants or the exercise of stock options granted
pursuant to the Company's stock option/incentive plans or otherwise
outstanding on the date hereof;
provided
, that the restrictions in this
Lock-Up
Letter Agreement shall apply to shares of Common Stock issued upon such
exercise or conversion, (d) transfers to the Company to satisfy any tax
withholding obligations of the Company or the undersigned,or to satisfy the
exercise price of warrants or stock options by the undersigned, upon the
exercise or vesting of equity awards outstanding or hereinafter granted under
any stock option/equity incentive plan that is in place prior to the
datehereof;
provided
, that neither the undersigned nor the Company shall voluntarily make any
public announcement or filing with respect to such transfer and that any
public announcement or filing required with respect to such transfer
shallinclude a statement to the effect that the transfer was made in
connection with the payment of taxes or the satisfaction of the exercise
price, (e) transfers pursuant to a contract, instruction or plan that
satisfies all of the requirements ofRule
10b5-1
(a "
Rule
10b5-1
Plan
") under the Exchange Act that was in effect as of, and only for Common Stock
scheduled for sale thereunder on,the date hereof, and (f) the establishment of
any new Rule
10b5-1
Plan under the Exchange Act;
provided
,
however
, that no sales of Common Stock or securities convertible into, orexchangeable
or exercisable for, Common Stock, shall be made pursuant to such new Rule
10b5-1
Plan prior to the expiration of the
Lock-Up
Period and that any publicannouncement or filing made during the
Lock-Up
Period, if required of or voluntarily made by or on behalf of the undersigned
or the Company regarding the establishment of such plan, shall include a
statementto the effect that no transfer of Common Stock may be made under such
plan during the
Lock-Up
Period.
Infurtherance of the foregoing, the Company and its transfer agent are hereby
authorized to decline to make any transfer of securities if such transfer
would constitute a violation or breach of this
Lock-Up
Letter Agreement.
It is understood that, if the Company notifies the Underwriters that it does
not intend to proceed with the Offering, if theUnderwriting Agreement does not
become effective, or if the Underwriting Agreement (other than the provisions
thereof which survive termination) shall terminate or be terminated prior to
payment for and delivery of the Stock, the undersigned will bereleased from
its obligations under this
Lock-Up
Letter Agreement.
The undersigned understands that the Companyand the Underwriters will proceed
with the Offering in reliance on this
Lock-Up
Letter Agreement. The undersigned hereby represents and warrants that the
undersigned has full power and authority to enter intothis
Lock-Up
Letter Agreement. All authority herein conferred or agreed to be conferred and
any obligations of the undersigned shall be binding upon the successors,
assigns, heirs or personal representativesof the undersigned.
Whether or not the Offering actually occurs depends on a number of factors,
including market conditions. Any Offering will only bemade pursuant to an
Underwriting Agreement, the terms of which are subject to negotiation between
the Company and the Underwriters.
The undersignedacknowledges and agrees that the Underwriters have not provided
any recommendation or investment advice nor have the Underwriters solicited
any action from the undersigned with respect to the Offering and the
undersigned has consulted their ownlegal, accounting, financial, regulatory
and tax advisors to the extent deemed appropriate.
42
-------------------------------------------------------------------------------
This
Lock-Up
Letter Agreement and any transaction contemplated bythis
Lock-Up
Letter Agreement shall be governed by and construed in accordance with the
laws of the State of New York without regard to conflict of laws principles
that would result in the application of anyother law than the laws of the
State of New York (other than
Section 5-1401
of the General Obligations Law).
This
Lock-Up
Letter Agreement shall automatically terminate upon the earliest to occur, if
any, of (1) thetermination of the Underwriting Agreement before the sale of
any Stock to the Underwriters or (2) May 1, 2024, in the event that the
Underwriting Agreement has not been executed by that date.
[Signature page follows]
43
-------------------------------------------------------------------------------
The undersigned hereby represents and warrants that the undersigned has full
power and authority to enterinto this
Lock-Up
Letter Agreement and that, upon request, the undersigned will execute any
additional documents necessary in connection with the enforcement hereof. Any
obligations of the undersigned shall bebinding upon the heirs, personal
representatives, successors and assigns of the undersigned.
Very truly yours,
Name:
Dated:
44
Exhibit 5.1
May 1, 2024
Board ofDirectors
Fulton Financial Corporation
One Penn Square
P.O. Box 4887
Lancaster, Pennsylvania 17604
Re: Fulton Financial Corporation - Prospectus Supplement to Shelf Registration Statement on Form
S-3
(File No. 333-274624) (the "
Registration Statement
")
Ladies and Gentlemen:
At your request, we have examined the prospectus supplement, dated April 29,
2024 and filed by Fulton Financial Corporation, aPennsylvania corporation (the
"
Corporation
") with the Securities and Exchange Commission (the "
Commission
") pursuant to Rule 424(b) of the Securities Act of 1933, as amended, and the
rules and regulations thereunder(the "
Securities Act
") on April 30, 2024 (the "
Prospectus Supplement
") to the prospectus, dated September 21, 2023 (together with the Prospectus
Supplement, the "
Prospectus
"), related tothe above-referenced Registration Statement. The Prospectus
Supplement relates to the issuance and sale by the Corporation of up to
19,166,667 shares (the "
Securities
") of the Corporation's common stock, $2.50 par value (the"
Common Stock
") (which includes 2,500,000 Shares issuable upon exercise of an overallotment
option granted by the Corporation). The Shares are to be sold by the
Corporation pursuant to the Underwriting Agreement dated as ofApril 29, 2024
(the "
Underwriting Agreement
") between the Corporation, on the one hand, and Piper Sandler & Co. and BofA
Securities, Inc. as representatives of the several underwriters listed in
Schedule I to theUnderwriting Agreement (collectively, the "
Underwriters
").
In connection with the issuance of this opinion letter, wehave examined and
relied on originals or copies certified or otherwise identified to our
satisfaction of: (i) the Underwriting Agreement; (ii) the Registration
Statement and all exhibits thereto and the documents incorporated by
referencetherein; (iii) the preliminary prospectus supplement in the form
filed with the Commission on April 29, 2024 pursuant to Rule 424(b) of the
Securities Act relating to the offering of the Securities; (iv) the
Prospectus; (v) theresolutions adopted by the board of directors of the
Corporation and committees thereof with respect to the Registration Statement
and the offering of the Securities; (vi) certificates of responsible officers
who, in our judgment, are likely toknow the facts upon which the opinion or
confirmation will be faced; and (vii) certificates of public officials. In
addition, we have examined originals or copies, certified or otherwise
identified to our satisfaction, of such otherinstruments, documents,
certificates and records which we have deemed relevant and necessary for the
basis of our opinion hereinafter expressed.
-------------------------------------------------------------------------------
May 1, 2024
Page 2
In such examination and in rendering this opinion, we have assumed, without
inquiry or otherinvestigation: (a) the legal capacity of each natural person
executing the agreements described in this opinion letter; (b) the
authenticity of original documents and the genuineness of all signatures; (c)
the conformity to theoriginals of all documents submitted to us as copies; (d)
the truth, accuracy and completeness of the information, representations and
warranties contained in the records, documents, instruments and certificates
we have reviewed; (e) thatthere has been no undisclosed waiver of any right,
remedy or provision contained in such documents; (f) that the Underwriting
Agreement has been duly authorized and validly executed and delivered by the
parties thereto (other than theCorporation); and (g) that the Securities will
be issued and sold in compliance with applicable U.S. federal and state
securities laws and in the manner stated in the Registration Statement and the
Prospectus. As to any facts material to theopinions expressed herein that we
did not independently establish or verify, we have relied upon statements and
representations of officers and other representatives of the Corporation and
others.
Based upon and subject to the foregoing, we are of the opinion that, when the
Shares are issued to and paid for by the Underwriters inaccordance with the
terms of the Underwriting Agreement, the Shares will be validly issued, fully
paid
and non-assessable.
This opinion is subject to the effects of (i) bankruptcy, insolvency,
fraudulent conveyance, fraudulent transfer, voidable transfer,reorganization,
liquidation, moratorium or other similar laws relating to or affecting the
rights or remedies of creditors generally, (ii) the application of general
principles of equity (regardless of whether enforcement is considered in
aproceeding in equity or at law) and (iii) an implied covenant of good faith
and fair dealing. Furthermore, the manner in which any particular issue
relating to this opinion would be treated in any actual court case would
depend in part on factsand circumstances particular to the case and would also
depend on how the court involved choose to exercise the wide discretionary
authority generally available to it.
The opinion rendered herein is limited to the Business Corporation Law of the
Commonwealth of Pennsylvania as currently in effect (whichincludes reported
judicial decisions interpreting the Business Corporation law of the
Commonwealth of Pennsylvania). We express no opinion as to federal law,
including the federal securities laws, state securities (or "blue sky") laws
orthe laws of any other jurisdiction, and the opinions set forth herein are
qualified in that respect. We express no opinion as to whether, or the extent
to which, the laws of any particular jurisdiction apply to the subject matter
hereof.
This opinion letter speaks only as of its date and is delivered in accordance
with the requirements of Item 601(b)(5) of Regulation
S-K
under the Securities Act. We hereby consent to the filing of this opinion
letter as Exhibit 5.1 to the Company's Current Report on Form
8-K
relating to theSecurities, which is incorporated by reference in the
Registration Statement. In addition, we consent to the use of our name in the
prospectus supplement forming a part of the Registration Statement under the
caption "Legal Matters." Ingiving such consent, we do not concede that we are
within the category of persons whose consent is required under Section 7 of
the Securities Act or the rules and regulations of the Commission thereunder.
Sincerely yours,
HOLLAND & KNIGHT LLP
/s/ Holland & Knight LLP
Exhibit 99.1
FOR IMMEDIATE RELEASE
Fulton Financial Announces Closing of $287.5 Million Offering of Common Stock
(May 1, 2024)--LANCASTER, Pa.--(BUSINESS WIRE)-- Fulton Financial Corporation
(NASDAQ: FULT) (the "Corporation") today announced theclosing of its public
offering of 19,166,667 shares of its common stock (the "common stock"), at a
price to the public of $15 per share, which included 2,500,000 shares issued
upon the exercise in full by the underwriters of their optionto purchase
additional shares of common stock. The total gross proceeds from the offering
were $287.5 million.
Piper Sandler and BofA Securitiesacted as joint book-running managers for the
offering.
The Corporation received net proceeds from the offering of approximately
$273.5 million,after deducting underwriting discounts and before deducting
transaction expenses. The Corporation intends to use the net proceeds of the
offering for general corporate purposes, including to support new
opportunities in connection with its businessstrategy following its previously
announced acquisition of substantially all of the assets and its assumption of
substantially all of the deposits and certain liabilities of Republic First
Bank, doing business as Republic Bank, from the FederalDeposit Insurance
Corporation.
The shares of common stock to which this communication relates were issued
pursuant to an effective registration statementon Form
S-3
(File
No. 333-274624)
filed with the U.S. Securities and Exchange Commission (the "SEC"). A final
prospectus supplement and accompanyingprospectus relating to the offering has
been filed with the SEC. You may obtain these documents for free by visiting
EDGAR on the SEC's website at http://www.sec.gov. Electronic copies of the
final prospectus supplement and the accompanyingbase prospectus may be
obtained by contacting Piper Sandler, 800 Nicollet Mall, J12S03, Minneapolis,
MN 55402, Attention: Prospectus Department, or by telephone at (800)
747-3924
or email at prospectus@psc.comor BofA Securities, Attention: Prospectus
Department,
NC1-022-02-25,
201 North Tryon Street, Charlotte, NC 28255-0001, or byemail at dg.prospectus_re
quests@bofa.com.
This press release is for informational purposes only and does not constitute
an offer to sell or asolicitation of an offer to buy the securities, nor shall
there be any sale of the securities in any state or other jurisdiction in
which such offer, solicitation or sale would be unlawful prior to registration
or qualification under the securitieslaws of any such jurisdiction. The shares
of common stock to which this communication relates have not been approved or
disapproved by any regulatory authority, nor has any such authority passed
upon the accuracy or adequacy of the prospectussupplement or the shelf
registration statement or prospectus relating thereto.
-------------------------------------------------------------------------------
About Fulton Financial Corporation
Fulton Financial Corporation is a Pennsylvania-based financial holding company
that operates more than 200 financial centers in Pennsylvania, Maryland,Delaware
, New Jersey and Virginia through its banking subsidiary, Fulton Bank, N.A.
Safe Harbor Statement
This press release contains forward-looking statements. Forward-looking
statements can be identified by the use of words such as "may,""should,"
"will," "could," "estimates," "predicts," "potential," "continue,"
"anticipates," "believes," "plans," "expects,""future," "intends," "projects,"
the negative of these terms and other comparable terminology.
Forward-looking statementsare neither historical facts, nor assurance of
future performance. Instead, the statements are based on current beliefs,
expectations and assumptions regarding the future of the Corporation's
business, future plans and strategies, projections,anticipated events and
trends, the economy and other future conditions. Because forward-looking
statements relate to the future, they are subject to inherent uncertainties,
risks and changes in circumstances that are difficult to predict and many
ofwhich are outside of the Corporation's control, and actual results and
financial condition may differ materially from those indicated in the
forward-looking statements. Therefore, you should not unduly rely on any of
these forward-lookingstatements. Any forward-looking statement is based only
on information currently available and speaks only as of the date when made.
The Corporation undertakes no obligation, other than as required by law, to
update or revise any forward-lookingstatements, whether as a result of new
information, future events or otherwise.
A discussion of certain risks and uncertainties affecting theCorporation, and
some of the factors that could cause the Corporation's actual results to
differ materially from those described in the forward-looking statements, can
be found in the sections entitled "Risk Factors" and"Management's Discussion
and Analysis of Financial Condition and Results of Operations" in the
Corporation's Annual Report on Form
10-K
for the year ended December 31, 2023 and othercurrent and periodic reports,
which have been, or will be, filed with the Securities and Exchange Commission
(the "SEC") and are, or will be, available on the SEC's website (www.sec.gov).
Media Contact: Lacey
Dean, 717-735-8688
Investor Contact: Matt
Jozwiak, 717-327-2657
Source: Fulton Financial Corporation
{graphic omitted}
{graphic omitted}
{graphic omitted}
{graphic omitted}