1
EXHIBIT 1.1
NPB CAPITAL TRUST
$35,000,000
____% Preferred Securities
(Liquidation Amount $25 per Preferred Security)
by
ALEX. XXXXX & SONS INCORPORATED
UNDERWRITING AGREEMENT
May __, 1997
ALEX. XXXXX & SONS INCORPORATED
0 Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Dear Sirs:
NPB Capital Trust (the "Trust"), a statutory business trust organized
under the Business Trust Act (the "Delaware Act") of the State of Delaware
(Chapter 38, Title 12, of the Delaware Business Code, 12 Del. C. Section 3801 et
seq.), and National Penn Bancshares, Inc., a Pennsylvania corporation (the
"Company"), as depositor of the Trust and as guarantor, propose, upon the terms
and conditions set forth herein, to issue and sell to Alex. Xxxxx & Sons
Incorporated (the "Underwriter") an aggregate liquidation amount of $35,000,000
(the "Firm Securities") of the Trust's ____% preferred securities (the
"Preferred Securities"). The Trust and the Company also propose to issue and
sell to the Underwriter, at the Underwriter's option, up to an additional
$5,250,000 aggregate liquidation amount of Preferred Securities (the "Option
Securities") as set forth herein. The term "Preferred Securities" as used
herein, unless indicated otherwise, shall mean the Firm Securities and the
Option Securities.
The Preferred Securities and Common Securities (as defined herein) are
to be issued pursuant to the terms of an Amended and Restated Trust Agreement
dated as of May __, 1997 (the "Trust Agreement"), among the Company, as
depositor, and, together with the Trust, the "Offerors," and Bankers Trust
Company ("Trust Company"), a New York banking corporation, as property trustee
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("Property Trustee") and Bankers Trust (Delaware) ("Trust Delaware"), a Delaware
banking corporation, as Delaware trustee ("Delaware Trustee") and the holders
from time to time of undivided interests in the assets of the Trust. The
Preferred Securities will be guaranteed by the Company on a subordinated basis
and subject to certain limitations with respect to distributions and payments
upon liquidation, redemption or otherwise (the "Guarantee") pursuant to the
Preferred Securities Guarantee Agreement dated as of May 5, 1997 (the "Guarantee
Agreement"), between the Company and the Trust Company, as Trustee (the
"Guarantee Trustee"). The assets of the Trust will consist of ____% junior
subordinated deferrable interest debentures, due June __, 2027, which date may
be shortened once at any time by the Company to any date not earlier than June
___, 2002, subject to the Company having received prior approval of the Federal
Reserve Board of Governors of the Federal Reserve System (the "Federal Reserve")
if then required under applicable capital guidelines or policies of the Federal
Reserve (the "Subordinated Debentures") of the Company which will be issued
under an indenture dated as of May __, 1997 (the "Indenture"), between the
Company and the Trust Company, as Trustee (the "Indenture Trustee"). Under
certain circumstances, the Subordinated Debentures will be distributable to the
holders of undivided beneficial interests in the assets of the Trust. The entire
proceeds from the sale of the Preferred Securities will be combined with the
entire proceeds from the sale by the Trust to the Company of the Trust's common
securities (the "Common Securities"), and will be used by the Trust to purchase
an equivalent amount of the Subordinated Debentures.
The Company and the Trust have filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-3 (Nos.
333-_____, 333-_____-1) and a related preliminary prospectus for the
registration of the Preferred Securities and the Subordinated Debentures under
the Securities Act of 1933, as amended (the "Securities Act"), and the rules and
regulations thereunder (the "Securities Act Regulations"). The Company and the
Trust have prepared and filed such amendments thereto, if any, and such amended
preliminary prospectuses, if any, as may have been required to the date hereof,
and will file such additional amendments thereto and such amended prospectuses
as may hereafter be required. The registration statement has been declared
effective under the Securities Act by the Commission. The registration statement
as amended at the time it became effective (including the Prospectus and the
documents incorporated by reference therein pursuant to the section therein
entitled "Incorporation of Certain Documents by Reference" and all information
deemed to be a part of the registration statement at the time it became
effective pursuant to Rule 430A(b) of the Securities Act Regulations) is
hereinafter called the "Registration Statement," except that, if the Company
files a post-effective amendment to such registration statement
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which becomes effective prior to the Closing Date (as defined below),
"Registration Statement" shall refer to such registration statement as so
amended. Each prospectus included in the registration statement, or amendments
thereof, before it became effective under the Securities Act and any prospectus
filed with the Commission by the Company with the consent of the Underwriter
pursuant to Rule 424(a) of the Securities Act Regulations (including the
documents incorporated by reference therein) is hereinafter called the
"Preliminary Prospectus." The term "Prospectus" means the final prospectus
(including the documents incorporated by reference therein), as first filed with
the Commission pursuant to paragraph (1) or (4) of Rule 424(b) of the Securities
Act Regulations. The Commission has not issued any order preventing or
suspending the use of any Preliminary Prospectus. The Company hereby agrees with
the Underwriter as follows:
SECTION 1. Representations and Warranties.
a. Each of the Offerors represents and warrants to the
Underwriter as follows:
(i) The Registration Statement conforms, and the Prospectus
and any further amendments or supplements thereto will, when they
become effective or are filed with the Commission, as the case may be,
conform, in all material respects with the requirements of the
Securities Act, with respect to the documents incorporated by
reference, the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act"), and the applicable rules and regulations under said
acts; the Trust Agreement, the Guarantee Agreement, and the Indenture
conform with the requirements of the Trust Indenture Act, and the
applicable rules and regulations thereunder; the Registration Statement
did not, and any amendment thereto will not, in each case as of the
applicable effective date, contain any untrue statement of a material
fact or omit to state a material fact necessary in order to make the
statements made, not misleading; and the Prospectus and any amendment
or supplement thereto will not, as of the applicable filing date and at
the Closing Date (as hereinafter defined), contain any untrue statement
of a material fact or omit to state a material fact necessary in order
to make the statements made, in the light of the circumstances under
which they were made, not misleading; provided, however, that the
representations and warranties in this subsection shall not apply to
statements in or omissions from the Registration Statement or
Prospectus made in reliance upon and in conformity with information
furnished to the Trust or the Company by or on behalf of any
Underwriter in
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writing expressly for use in the Registration Statement or Prospectus.
(ii) The documents incorporated by reference in the Prospectus
pursuant to the section therein entitled "Incorporation of Certain
Documents by Reference," at the time they were filed with the
Commission, complied in all material respects with the requirements of
the Securities Act, the Securities Act Regulations and the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and the rules
and regulations of the Commission thereunder, and did not contain any
untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements made, in the light of the
circumstances under which they were made, not misleading.
(iii) Neither the Company nor the Trust is an open-end
investment company, unit investment trust or face-amount certificate
company that is, or is required to be, registered under Section 8 of
the Investment Company Act of 1940, as amended (the "Investment Company
Act"), nor is either a closed-end investment company required to be
registered, but not registered, thereunder.
(iv) Each report filed by the Company with the Commission
under the Exchange Act, and the rules and regulations promulgated
thereunder, and incorporated by reference in the Registration
Statement, complied when filed with the Commission as to form in all
material respects with the requirements of the Exchange Act and the
applicable rules and regulations thereunder.
(v) The Trust and the Company meet the requirements for the
use of Form S-3 under the Securities Act.
(vi) The Company has been duly incorporated and remains a
subsisting corporation in good standing under the laws of the
Commonwealth of Pennsylvania with corporate power and authority to own
and lease its properties and to conduct its business as described in
the Prospectus and to enter into and perform its obligations under this
Agreement, the Trust Agreement, the Guarantee Agreement, the Indenture
and the Preferred Securities; the Company is duly qualified as a
foreign corporation to transact business and is in good standing in
each jurisdiction, if any, in which its ownership or leasing of
properties or the conduct of its business requires such qualification,
except where the failure to so qualify would not have a material
adverse effect on the conduct of the business, condition (financial or
otherwise), earnings, business affairs or
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business prospects of the Company and its subsidiaries considered as
one enterprise; and the Company is duly registered as a bank holding
company under the Bank Holding Company Act of 1956, as amended.
(vii) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus, except as
otherwise stated therein, (A) there has been no material adverse change
in the condition, financial or otherwise, of the Company and its
subsidiaries considered as one enterprise, or in the earnings, 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, (B) there have been no material transactions
entered into by the Company or its subsidiaries other than those in the
ordinary course of business, and (C) the Company has not sustained any
material loss or interference with its assets, businesses or properties
(whether owned or leased) from fire, explosion, earthquake, flood or
other calamity, whether or not covered by insurance, or from any labor
dispute or any court or legislative or other governmental action, order
or decree.
(viii) The Preferred Securities have been duly and validly
authorized for issuance and sale to the Underwriter pursuant to this
Agreement and, when executed and authenticated in accordance with the
terms of the Trust Agreement and delivered to the Underwriter against
payment of the consideration set forth herein, will constitute valid
and legally binding obligations of the Trust enforceable in accordance
with their terms and entitled to the benefits provided by the Trust
Agreement. The Trust Agreement has been duly authorized and, when
executed by the proper officers of the Trust and delivered by the
Trust, will have been duly executed and delivered by the Trust and will
constitute the valid and legally binding instrument of the Trust,
enforceable in accordance with its terms, except as enforcement thereof
may be limited by bankruptcy, insolvency or other laws relating to or
affecting enforcement of creditors' rights generally or by general
principles of equity (regardless of whether enforcement is sought in a
proceeding in equity or at law). The Subordinated Debentures have been
duly and validly authorized for delivery by the Company and when duly
authenticated in accordance with the terms of the Indenture and
delivered to the Trust against payment of the consideration set forth
herein, will constitute valid and legally binding obligations of the
Company enforceable against the Company in accordance with their terms
(except as such enforceability may be limited by applicable
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bankruptcy, insolvency, reorganization, receivership, readjustment of
debt, moratorium, fraudulent conveyance or similar laws relating to or
affecting creditors' rights generally, general equity principles
(whether considered in a proceeding in equity or at law)) and entitled
to the benefits provided by the Indenture. The Indenture has been duly
authorized and, when executed by the proper officers of the Company and
delivered by the Company, will have been duly executed and delivered by
the Company and will constitute the valid and legally binding
instrument of the Company, enforceable in accordance with its terms,
except as enforcement thereof may be limited by bankruptcy, insolvency
or other laws relating to or affecting enforcement of creditors' rights
generally or by general principles of equity (regardless of whether
enforcement is sought in a proceeding in equity or at law). The Trust
Agreement, the Guarantee Agreement, and the Indenture have been duly
qualified under the Trust Indenture Act; and the Preferred Securities,
the Trust Agreement, the Guarantee Agreement, the Subordinated
Debentures and the Indenture conform in all material respects to the
descriptions thereof contained in the Registration Statement and the
Prospectus.
(ix) This Agreement has been duly authorized, executed and
delivered by the Trust and the Company and constitutes the valid and
binding agreement of the Trust and the Company enforceable against the
Trust and the Company in accordance with its terms except as
enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium and other similar laws relating to or
affecting creditors' rights generally, or by general equitable
principles (regardless of whether such enforceability is considered in
a proceeding in equity or at law).
(x) Neither the Trust, nor the Company or any of its
subsidiaries is in violation of its charter or in default in the
performance or observance of any material obligation, agreement,
covenant or condition contained in any contract, indenture, mortgage,
loan agreement, note, lease or other instrument to which it is a party
or by which it or any of its properties may be bound and which is
material to the either the Trust or the Company and its subsidiaries
considered as one enterprise and the execution and delivery of this
Agreement, the Trust Agreement, the Guarantee Agreement, and the
Indenture, the issue and sale of the Preferred Securities, the issue
and sale of the Subordinated Debentures, the compliance by the Trust
and the Company with the provisions of the Preferred Securities and the
Subordinated Debentures, this Agreement, the Trust
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Agreement, the Guarantee Agreement, and the Indenture, and the
consummation of the transactions herein and therein contemplated will
not conflict with or constitute a breach of, or default under, the
organization documents of the Trust or the articles of incorporation or
by-laws of the Company or a breach or default under any contract,
indenture, mortgage, loan agreement, note, lease or other instrument to
which the Trust or the Company or any of its subsidiaries is a party or
by which it or any of its properties may be bound and which is material
to the Trust or the Company and its subsidiaries considered as one
enterprise, nor will such action result in any violation on the part of
the Trust or the Company or its subsidiaries of any applicable law or
regulation or of any applicable administrative, regulatory or court
decree.
(xi) There are no actions, suits, claims or proceedings
pending or, to the knowledge of the Trust or the Company, threatened
against the Trust or the Company or any of its subsidiaries before any
court or administrative agency or otherwise which are required to be
disclosed in the Registration Statement and are not so disclosed which,
if determined adversely to the Trust or the Company or any of its
subsidiaries would individually or in the aggregate have a material
adverse effect on the business, condition (financial and otherwise),
earnings, business affairs or business prospects of the Trust or the
Company and its subsidiaries, considered as one enterprise or prevent
the consummation of the transactions contemplated hereby.
(xii) The Commission has not issued an order preventing or
suspending the use of the Prospectus, nor instituted proceedings for
that purpose.
(xiii) The independent certified public accountants who
audited the consolidated financial statements included or incorporated
by reference in the Prospectus are independent public accountants as
required by the Securities Act and the Securities Act Regulations.
(xiv) The consolidated financial statements, including the
notes thereto and the supporting schedules, included or incorporated by
reference in the Prospectus present fairly, the financial position,
results of operations and cash flows of the Company and its
subsidiaries at the dates indicated, and the results of their
operations for the periods specified; such consolidated financial
statements have been prepared in conformity with generally accepted
accounting principles
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applied on a consistent basis except as otherwise stated therein.
(xv) The Company and it subsidiaries have good and marketable
title to all of the properties and assets owned by them reflected in
the consolidated financial statements (or as described in the
Prospectus), subject to no lien, mortgage, pledge, charge or
encumbrance of any kind except those reflected in such consolidated
financial statements (or as described in the Prospectus or which are
not material in amount).
(xvi) The Company and its subsidiaries have filed all federal,
state and local tax returns which have been required to be filed and
have paid all taxes indicated by said returns and all assessments
received by them or any of them to the extent that such taxes have
become due and are not being contested in good faith. All tax
liabilities have been adequately provided for in the consolidated
financial statements of the Company.
(xvii) No approval, authorization, consent, registration,
qualification or other order of any public board or body is required in
connection with the execution and delivery of this Agreement, the Trust
Agreement, the Guarantee Agreement, or the Indenture, or the issuance
and sale of the Preferred Securities, the issuance and sale of the
Subordinated Debentures, or the consummation by the Trust and the
Company of the other transactions contemplated by this Agreement, the
Trust Agreement, the Guarantee Agreement, or the Indenture, except such
as have been obtained, or will have been obtained at the Closing Date,
under the Securities Act, the Exchange Act and the Trust Indenture Act
and such as may be required under the blue sky or securities laws of
various states in connection with the offering of the Preferred
Securities.
(xviii) The Company and its subsidiaries possess all material
licenses, certificates, authorities or permits issued by the
appropriate State or Federal regulatory agencies or bodies necessary to
conduct their businesses as described in the Prospectus, and neither
the Company nor its subsidiaries have received any notice of
proceedings relating to the revocation or modification of any such
license, certificate, authority or permit which, individually or in the
aggregate, if the subject of an unfavorable decision, ruling or
finding, would have a material adverse effect on the conduct of the
business, condition (financial or otherwise), earnings, business
affairs or business prospects of the Company and its subsidiaries
considered as one enterprise. Neither the
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Company nor any of its subsidiaries is party to or otherwise the
subject to any consent decree, memorandum of understanding, written
commitment or other supervisory agreement with the Board of Governors
of the Federal Reserve System or any Federal Reserve Bank (the "Federal
Reserve"), the Federal Deposit Insurance Corporation ("FDIC"), the
Office of the Comptroller of the Currency, or any other federal or
state authority or agency responsible for the supervision, regulation
or insurance of depository institutions or their holding companies.
(xix) There are no contracts or other documents which are
required to be filed as exhibits to the Registration Statement by the
Securities Act or by the Securities Act Regulations which have not been
filed as exhibits to the Registration Statement.
(xx) The Company has applied for the listing of the Preferred
Securities on the Nasdaq National Market and shall use its best efforts
to have the Preferred Securities listed on the Nasdaq National Market
or a similar exchange.
(xxi) The Company is in compliance in all material respects
with all presently applicable provisions of the Employee Retirement
Income Security Act of 1974, as amended, including the regulations and
published interpretations thereunder.
(xxii) The Company and its subsidiaries carry, or are covered
by, insurance in such amounts and covering such risks as is adequate
for the conduct of their respective businesses and the value of their
respective properties and as is customary for companies engaged in
similar businesses.
b. Any certificate signed by any officer of the Trust or the
Company and delivered to you or to your counsel shall be deemed a representation
and warranty by the Trust or the Company to you as to the matters covered
thereby.
SECTION 2. Sale and Delivery to Underwriter, Closing.
On the basis of the representations and warranties herein contained and
subject to the terms and conditions herein set forth, the Trust and the Company,
as the case may be, agree that the Trust will sell to the Underwriter, and the
Underwriter agrees to purchase from the Trust, the Firm Securities, at a
purchase price of $25.00 per Firm Security.
Payment of the purchase price for, and delivery of, the Firm Securities
shall be made at the offices of Xxxxxx & Xxxxxx,
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000 Xxxxxxx Xxxxxx, X.X., Xxxxxxxxxx, X.X. 00000, or at such other place as
shall be agreed upon by you, the Trust and the Company, at 10:00 A.M. Eastern
Standard Time, on the third business day (unless postponed in accordance with
the provisions of Section 9) following the date of this Agreement, or such other
time not later than ten business days after such date as shall be agreed upon by
the Underwriter, the Trust and the Company (such time and date of payment and
delivery being herein called the "Closing Date").
As compensation for the commitments of the Underwriter contained in
this Section 2, the Company hereby agrees to pay to the Underwriter an amount
equal to $___ per Firm Security times the total number of Firm Securities
purchased by the Underwriter on the Closing Date as commissions for the sale of
such Firm Securities under this Agreement. Such payment will be made on the
Closing Date with respect to the Firm Securities.
Payment for the Firm Securities shall be made to the Trust by wire
transfer of immediately available funds, against delivery to the Underwriter of
the Firm Securities to be purchased by it. The Firm Securities shall be issued
in the form of one or more fully registered global notes (the "Global Notes") in
book-entry form in such denominations and registered in the name of the nominee
of The Depository Trust Company (the "Depository") or in such names as the
Underwriter may request in writing at least two business days before the Closing
Date. The Global Notes representing the Firm Securities shall be made available
for examination by the Underwriter not later than 10:00 A.M. Eastern Standard
Time on the last business day prior to the Closing Date.
In addition, upon written notice from the Underwriter to the Trust from
time to time prior to 9:00 P.M., Eastern Standard Time, on the 30th day after
the date of the Prospectus (or, if such 30th day shall be a Saturday, Sunday or
a holiday, on the next business day thereafter), the Underwriter shall have the
right to purchase all or any portion of the Option Securities at the same
purchase price as the Firm Securities, plus accrued distributions, if any, from
the Closing Date to the Option Closing Date (as defined herein). No Option
Securities shall be sold or delivered unless the Firm Securities previously have
been, or simultaneously are, sold and delivered. Option Securities may be
purchased only for the purpose of covering over-allotments made in connection
with the offering of the Firm Securities.
Each time for the delivery of and payment for the Option Securities,
being herein referred to as an "Option Closing Date," which may be the Closing
Date, shall be determined by the Underwriter, but shall be issued not later than
five (5) full business days after written notice to the Trust of the
Underwriter's election to purchase Option Securities is given. Each payment of
the purchase price for, and delivery of, the
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Option Securities shall be made at each Option Closing Date at such offices as
is designated by the Underwriter.
As compensation for the commitments of the Underwriter contained in
this Section 2, the Company hereby agrees to pay to the Underwriter an amount
equal to $___ per Option Security times the total number of Option Securities
purchased by the Underwriter on the Option Closing Date as commissions for the
sale of such Option Securities under this Agreement. Such payment will be made
on the Option Closing Date with respect to the Option Securities.
Each payment for Option Securities shall be made to the Trust by wire
transfer of immediately available funds, against delivery to the Underwriter of
such Option Securities. The Option Securities shall be issued in the form of one
or more fully registered Global Notes in book-entry form in such denominations
and registered in the name of the nominee of the Depository or in such names as
the Underwriter may request in writing at least two days before the Option
Closing Date. The Global Notes representing the Option Securities shall be made
available for examination by the Underwriter not later than 10:00 A.M. Eastern
Standard Time on the last business day prior to the Option Closing Date.
SECTION 3. Offering by the Underwriter. The Trust and the Company are
advised that the Underwriter proposes to make a public offering of the Preferred
Securities, on the terms and conditions set forth in the Registration Statement
from time to time as and when the Underwriter deems advisable after the
Registration Statement becomes effective. Because the National Association of
Securities Dealers, Inc. ("NASD") is expected to view the Preferred Securities
as interests in a direct participation program, the offering of the Preferred
Securities is being made in compliance with the applicable provisions of Rule
2810 of the NASD's Conduct Rules.
SECTION 4. Covenants of the Offerors. Each of the Trust and the Company
covenants with the Underwriter as follows:
a. The Trust and the Company will prepare the Prospectus in a
form approved by the Underwriter and will file such Prospectus with the
Commission pursuant to subparagraph (1) or (4) of Rule 424(b) not later than the
Commission's close of business on the second business day following the
execution and delivery of this Agreement. The Trust and the Company will notify
the Underwriter immediately, and confirm the notice in writing, (i) of the
effectiveness of the Registration Statement and any amendment thereto (including
any post-effective amendment), and of the filing of the Prospectus pursuant to
Rule 424(b), (ii) of the receipt of any comments from the Commission, (iii) of
any request by the Commission for any amendment to the Registration Statement
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or any amendment or supplement to the Prospectus or for additional information,
and (iv) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or of any order preventing or
suspending the use of any Preliminary Prospectus or the Prospectus, of the
suspension of the qualification of the securities for offering or sale in any
jurisdiction, or of the initiation or threatening of any proceeding for such
purpose. The Trust and the Company will make every reasonable effort to prevent
the issuance of any stop order or of any order preventing or suspending the use
of any Preliminary Prospectus or the Prospectus or suspending any such
qualification and, if any such order is issued, to obtain the lifting thereof at
the earliest possible moment.
b. The Trust and the Company will deliver to the Underwriter
notice of their intention to prepare or file any amendment to the Registration
Statement relating to the Preferred Securities (including any post-effective
amendment) or any amendment or supplement to the Prospectus (including documents
deemed to be incorporated by reference into the Prospectus and including any
revised prospectus which the Trust and the Company propose for use by the
Underwriter in connection with the offering of the Preferred Securities which
differs from the prospectus on file at the Commission at the time the
Registration Statement becomes effective, whether or not such revised prospectus
is required to be filed pursuant to Rule 424(b) of the Securities Act
Regulations), will furnish the Underwriter and counsel for the Underwriter with
copies of any such amendment or supplement a reasonable amount of time prior to
such proposed filing or use, as the case may be, and will not file any such
amendment or supplement or use any such prospectus to which the Underwriter or
counsel for the Underwriter shall reasonably object.
c. The Trust and the Company will deliver to the Underwriter
one manually executed copy of the Registration Statement as originally filed and
of each amendment thereto (including exhibits filed therewith or incorporated by
reference therein and documents incorporated by reference into the Prospectus),
such number of conformed copies of the Registration Statement as originally
filed and of each amendment thereto (including documents incorporated by
reference into the Prospectus but without exhibits) as such Underwriter may
reasonably request and copies of each Preliminary Prospectus, the Prospectus and
any amended or supplemented Prospectus.
d. The Trust and the Company will furnish to the Underwriter,
from time to time during the period when the Prospectus is required to be
delivered under the Securities Act, such number of copies of the Prospectus (as
amended or supplemented, if applicable) as you may reasonably request for the
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purposes contemplated by the Securities Act or the Securities Act Regulations.
e. If any event shall occur as a result of which it is
necessary, in the reasonable opinion of counsel for the Underwriter, to amend or
supplement the Prospectus in order to make the Prospectus not misleading in the
light of the circumstances existing at the time it is delivered to a purchaser,
the Trust and the Company will forthwith amend or supplement the Prospectus by
preparing and furnishing to the Underwriter a reasonable number of copies of an
amendment of or supplement to the Prospectus (in form and substance satisfactory
to counsel for the Underwriter) so that, as so amended or supplemented, the
Prospectus will not contain any untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements made, in the
light of the circumstances existing at the time it is delivered to a purchaser,
not misleading.
f. The Trust and the Company, during the period when the
Prospectus is required to be delivered under the Securities Act, will file
promptly all documents required to be filed with the Commission pursuant to
Section 13, 14 or 15 of the Exchange Act subsequent to the time the Registration
Statement becomes effective.
g. Both the Trust and the Company will endeavor, in
cooperation with the Underwriter, to qualify the Preferred Securities for
offering and sale under the applicable securities laws of such states and other
jurisdictions of the United States as the Underwriter may designate, and will
maintain such qualifications in effect for as long as may be required for the
distribution of the Preferred Securities, except that neither the Trust nor the
Company shall be required in connection therewith to qualify as a foreign
corporation or to execute a general consent to service of process in any state
or other jurisdiction. The Trust and the Company will file such statements and
reports as may be required by the laws of each jurisdiction in which the
Preferred Securities have been qualified as above provided.
h. The Company will make generally available to its security
holders, as soon as it is practicable to do so, but in any event not later than
15 months after the effective date of the Registration Statement, an earnings
statement (which need not be audited) in reasonable detail, covering a period of
at least 12 consecutive months beginning on the first day of the first full
fiscal quarter after the effective date of the Registration Statement, which
earnings statement shall satisfy the requirements of Section 11(a) of the
Securities Act and Rule 158 of the Securities Act Regulations and will advise
you in writing when such statement has been so made available. If such fiscal
quarter is the last fiscal quarter of the Trust's fiscal year, such
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earnings statement shall be made available not later than 90 days after the
close of the period covered thereby and in all other cases shall be made
available not later than 45 days after the close of the period covered thereby.
i. The Trust and the Company will take such action as may be
necessary to comply with the rules and regulations of the Nasdaq National Market
in respect of the offering of the Preferred Securities.
j. The Trust and the Company, from the date hereof until the
Closing Date (including any Option Closing Date), will not offer, sell, contract
to sell or otherwise dispose of any securities issued or guaranteed by the Trust
or the Company that in the reasonable judgment of the Underwriter are
substantially similar to the Preferred Securities, without the prior written
consent of the Underwriter.
k. For a period of five years (but not beyond any such date on
which no Securities shall be outstanding) after the Closing Date, the Trust and
the Company will furnish to the Underwriter copies of all reports and
communications delivered to the Trust's shareholders or to holders of the
Preferred Securities and will also furnish copies of all reports (excluding
exhibits) filed with the Commission on Forms 8-K, 10-Q and 10-K, and all other
reports and information furnished to its shareholders generally, not later than
the time such reports are first furnished to its shareholders generally.
l. The Trust shall apply the net proceeds of its sale of the
Preferred Securities, combined with the entire proceeds from the sale by the
Trust to the Company of the Trust's Common Securities, to purchase an equivalent
amount of the Subordinated Debentures. All the net proceeds to be received by
the Company from the sale of the Subordinated Debentures will be used for
general corporate purposes, as described more fully in the Prospectus.
m. Neither the Company nor the Trust shall enter into any
contractual agreement with respect to the distribution of the Preferred
Securities except for the arrangements with the Underwriter.
SECTION 5. Costs and Expenses. The Company will pay all costs, expenses
and fees incident to the performance of its obligations under this Agreement
(except for the fees and disbursements of counsel for the Underwriter other than
pursuant to item (vi) of this Section 5), including: (i) the printing and filing
of the Registration Statement as originally filed and any amendments and
exhibits thereto, (ii) the filing fee of the National Association of Securities
Dealers, Inc. and expenses
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relating to any review of the offering and listing of the Preferred Securities
on the Nasdaq National Market, (iii) all expenses (including reasonable fees and
disbursements of counsel to the Company and the Trust) payable pursuant to
Section 4 of this Agreement, (iv) all costs and expenses incurred in connection
with the preparation, issuance and delivery of the Preferred Securities to the
Underwriter, (v) the fees and disbursements of the Trust's and the Company's
counsel and accountants, (vi) the expenses in connection with the qualification
of the Preferred Securities under state securities laws in accordance with the
provisions of Section 4(g), including filing fees and the reasonable fees and
disbursements of counsel to the Underwriter in connection therewith and in
connection with the preparation of the preliminary and final Blue Sky memoranda
and Legal Investment Surveys, (vii) the printing and delivery to the Underwriter
of copies of the preliminary and final Blue sky memoranda and Legal Investment
surveys, (viii) all costs and expenses incurred in the preparation and the
printing (including word processing and duplication costs) of the Preferred
Securities, the Indenture, the Guarantee Agreement, the Trust Agreement and all
other documents relating to the issuance, purchase and initial resale of the
Preferred Securities, and (ix) the fees and expenses of the Property Trustee,
the Delaware Trustee, the Indenture Trustee, and the Guarantee Trustee, and any
agent of the Property Trustee, the Delaware Trustee, the Indenture Trustee, and
the Guarantee Trustee, and the fees and disbursements of the Property Trustee's
counsel, in connection with the Trust Agreement and the Preferred Securities.
If this Agreement is terminated by the Underwriter in accordance with
the provisions of Section 6 or Section 9, the Company shall reimburse the
Underwriter for all of their reasonable out-of-pocket expenses, including the
reasonable fees and disbursements of counsel for the Underwriter, incurred in
connection with investigating, marketing and proposing to market the Preferred
Securities.
SECTION 6. Conditions of Underwriter's Obligations. The obligations of
the Underwriter to purchase and pay for the Firm Securities at the Closing Date
and the Option Securities at each Option Closing Date are subject to the
accuracy of the representations and warranties of the Trust and the Company
herein contained at and as of the date hereof and the Closing Date and at each
Option Closing Date, to the performance by the Trust and the Company of their
respective obligations hereunder, and to the following further conditions:
a. The Prospectus shall have been timely filed with the
Commission in accordance with Section 4(a); and at the Closing Date and each
Option Closing Date, no stop order suspending the effectiveness of the
Registration Statement or any part thereof
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shall have been issued under the Securities Act or proceedings therefor
initiated or threatened by the Commission; and any request of the Commission for
inclusion of additional information in the Registration Statement or the
Prospectus shall have been complied with and there shall not have come to the
attention of the Underwriter any facts that would cause the Underwriter to
believe that the Prospectus, at the time it was required to be delivered to a
purchaser of the Preferred Securities, contained any untrue statement of a
material fact or omitted to state a material fact necessary in order to make the
statements made, in light of the circumstances existing at such time, not
misleading.
b. On the Closing Date you shall have received:
(i) The favorable opinion, dated as of the Closing Date and
any Option Closing Date, of _______________, counsel for the Company,
in form and substance substantially in the form attached hereto as
Exhibit A.
In rendering such opinion, counsel may state that they are
passing only on matters of Pennsylvania and United States Federal law.
In rendering such opinion, counsel may rely upon an opinion or
opinions, each dated the Closing Date, of other counsel retained by
them or the Company as to laws of any jurisdiction other than the
United States or the Commonwealth of Pennsylvania, provided that (A)
such reliance is expressly authorized by each opinion so relied upon
and a copy of each such opinion is delivered to the Underwriter, and
(B) counsel shall state in their opinion that they and the Underwriter
is justified in relying thereon. Insofar as such opinions involve
factual matters, such counsel may rely, to the extent such counsel
deems proper, upon certificates of officers of the Company, its
subsidiaries and the Trust and certificates of public officials.
(ii) The favorable opinion, dated the Closing Date, of White &
Case, counsel to the Trust Company and Trust Delaware, substantially in
the form attached hereto as Exhibit B.
(iii) The favorable opinion, dated the Closing Date, of
Xxxxxxxx, Xxxxxx & Finger, special Delaware counsel to the Company and
the Trust, substantially to the effect and in the form attached hereto
as Exhibit C.
(iv) The favorable opinion, dated the Closing Date, Xxxxxx &
Xxxxxx, counsel to the Underwriter as to such matters as the
Underwriter shall reasonably request.
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In rendering such opinion, counsel may rely upon an opinion or
opinions, each dated the Closing Date, of other counsel retained by
them or the Company as to laws of any jurisdiction other than the
United States or the State of New York, provided that (A) such reliance
is expressly authorized by each opinion so relied upon and a copy of
each such opinion is delivered to the Underwriter, and (B) counsel
shall state in their opinion that they believe that they and the
Underwriter are justified in relying thereon. Insofar as such opinions
involve factual matters, such counsel may rely, to the extent such
counsel deems proper, upon certificates of officers of the Company, its
subsidiaries and the Trust and certificates of public officials.
c. At the time of the execution of this Agreement, the
Underwriter shall have received from Xxxxx Xxxxxxxx, LLP a letter dated such
date, in form and substance satisfactory to the Underwriter, to the effect that
(i) they are independent public accountants as required by the Securities Act
and the Securities Act Regulations; (ii) it is their opinion that the financial
statements included or incorporated by reference in the Registration Statement
and covered by their opinion therein comply as to form in all material respects
with the applicable accounting requirements of the Securities Act and the
Exchange Act and the applicable rules and regulations thereunder; (iii) based
upon limited procedures set forth in detail in such letter, nothing has come to
their attention which causes them to believe that during the period from
December 31, 1996 to a specified date not more than five days prior to the date
of this Agreement, there has been any change in the capital stock or long-term
debt of the Company or its subsidiaries or any decrease in consolidated total
assets of the Company and its subsidiaries as compared with the amounts shown in
the December 31, 1996 consolidated balance sheet incorporated by reference in
the Registration Statement, or any decrease, as compared with the corresponding
period in the preceding year, in net income or net interest income of the
Company and its subsidiaries on a consolidated basis, except in each case as set
forth or contemplated in the Registration Statement; (iv) they have read in the
Registration Statement and certain dollar amounts, percentages and other
financial information specified by the Underwriter which is included or
incorporated by reference in the Registration Statement and have performed the
procedures set forth in detail in such letter and have found such amounts,
percentages or other financial information to be in agreement with the relevant
accounting and financial records of the Company and its subsidiaries.
d. On the Closing Date and any Option Closing Date, the
Underwriter shall have received from Xxxxx Xxxxxxxx, LLP a letter, dated as of
the Closing Date or such Option Closing Date,
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to the effect that they reaffirm the statements made in the letter furnished
pursuant to paragraph (c) of this Section, except that the "specified date"
referred to shall be a date not more than five days prior to the Closing Date or
Option Closing Date, as the case may be.
e. On the Closing Date, a certificate signed by the Chairman
of the Board, the President, a Vice Chairman of the Board or any Executive or
Senior Vice President and the principal financial or accounting officer of the
Company, dated the Closing Date, to the effect that the signers of such
certificate have carefully examined the Registration Statement and this
Agreement and that:
(i) The representations and warranties of the Company in this
Agreement are true and correct in all material respects on and as of
the Closing Date with the same effect as if made on the Closing Date
and the Company has complied in all material respects with all the
agreements and satisfied in all material respects all the conditions on
its part to be performed or satisfied at or prior to the Closing Date;
and
(ii) Since the date of the most recent financial statements
included in the Registration Statement (exclusive of any supplement
thereto), there has been no material adverse change in the condition
(financial or other), earnings, business or properties of the Company
and its subsidiaries taken as a whole, whether or not arising from
transactions in the ordinary course of business, except as set forth in
or contemplated in the Registration Statement (exclusive of any
supplement thereto).
f. On the Closing Date or any Option Closing Date, there shall
not have been, since the respective dates as of which information is given in
the Registration Statement, any material adverse change in the condition,
financial or otherwise, of the Company and its subsidiaries considered as one
enterprise, or in the earnings, 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, and you shall have received a
certificate of the Chairman of the Board, the President or a Senior Vice
President of the Company and the principal financial or accounting officer of
the Company, dated as of the Closing Date, to the effect that there has been no
such material adverse change and to the effect that the other representations
and warranties of the Company contained in Section I are true and correct with
the same force and effect as though expressly made at and as of the Closing Date
or any Option Closing Date, and that the Company has complied with all its
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agreements contained herein and the condition set forth in Section (a) has been
fulfilled.
g. Prior to the Closing Date, the Company shall have furnished
to the Underwriter such further information, certificates and documents as the
Underwriter may reasonably request in connection with the offering of the
Preferred Securities.
If any condition specified in this Section shall not have been
fulfilled when and as required to be fulfilled, this Agreement may be terminated
by the Underwriter by notice to the Company at any time at or prior to the
Closing Date or, with respect to Option Securities, the Option Closing Date, and
such termination shall be without liability of any party to any other party
except as provided in Section 5 and except that Sections 7 and 8 hereof shall
survive such termination.
SECTION 7. Indemnification.
a. The Company agrees to indemnify and hold harmless the
Underwriter and each person, if any, who controls the Underwriter within the
meaning of the Securities Act against any losses, claims, damages or liabilities
to which the Underwriter or such controlling person may become subject under the
Securities Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions or proceedings in respect thereof) arise out of or are
based upon (i) any untrue statement or alleged untrue statement of any material
fact contained in the Registration Statement, any Preliminary Prospectus, the
Prospectus or any amendment or supplement thereto, or (ii) the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, and subject to
Section 7(c) hereof, will reimburse the Underwriter and each such controlling
person for any legal or other expenses reasonably incurred by such Underwriter
or such controlling person in connection with investigating or defending any
such loss, claim, damage, liability, action or proceeding; provided, however,
that the Company will not be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement, or omission or alleged omission made in
the Registration Statement, any Preliminary Prospectus, the Prospectus, or such
amendment or supplement, in reliance upon and in conformity with written
information furnished to the Company by the Underwriter specifically for use in
the preparation thereof. This indemnity agreement will be in addition to any
liability which the Company may otherwise have.
b. The Underwriter will indemnify and hold harmless the
Company, each of its directors, each of its officers who have
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signed the Registration Statement and each person, if any, who controls the
Company, against any losses, claims, damages or liabilities to which the Company
or any such director, officer, or controlling person may become subject under
the Act or otherwise, insofar as such losses, claims, damages or liabilities (or
actions or proceedings in respect thereof arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in
the Registration Statement, any Preliminary Prospectus, the Prospectus or any
amendment or supplement thereto, or arise out of or are based upon the omission
or the alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading in the light
of the circumstances under which they were made, and will reimburse any legal or
other expenses reasonably incurred by the Company or any such director, officer
or controlling person in connection with investigating or defending any such
loss, claim, damage, liability, action or proceeding; provided, however, that
the Underwriter will be liable in each case to the extent, but only to the
extent, that such untrue statement or alleged untrue statement or omission or
alleged omission has been made in the Registration Statement, any Preliminary
Prospectus, the Prospectus or such amendment or supplement, in reliance upon and
in conformity with written information furnished to the Company by or through
the Underwriter specifically for use in the preparation thereof. For purposes of
this Section 7, the only written information furnished by the Underwriters for
use in the Registration Statement and the Prospectus is the information in the
last paragraph of the cover page of the Prospectus and the third and sixth
paragraphs under the caption "Underwriting" in the Prospectus. This indemnity
agreement will be in addition to any liability which the Underwriter may
otherwise have.
c. In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of which
indemnity may be sought pursuant to this Section 6, such person (the
"indemnified party") shall promptly notify the person against whom such
indemnity may be sought (the "indemnifying party") in writing. No
indemnification provided for in Section 7(a) or (b) shall be available to any
party who shall fail to give notice as provided in this Section 7(c) if the
party to whom notice was not given was unaware of the proceeding to which such
notice would have related and was materially prejudiced by the failure to give
such notice, but the failure to give such notice shall not relieve the
indemnifying party or parties from any liability which it or they may have to
the indemnified party for contribution under Section 7(d) hereof or otherwise
than on account of the provisions of Section 7(a) or (b). In case any such
proceeding shall be brought against any indemnified party and it shall notify
the indemnifying party of the commencement thereof, the indemnifying party shall
retain counsel reasonably satisfactory to the indemnified party to defend the
indemnified
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party and shall pay as incurred the fees and disbursements of such counsel
related to such proceeding. The indemnifying party shall be entitled to
participate therein and, to the extent that it shall wish, jointly with any
other indemnifying party similarly notified, to assume the defense thereof, with
counsel reasonably satisfactory to such indemnified party. In any such
proceeding, any indemnified party shall have the right to retain its own counsel
at its own expense. Notwithstanding the foregoing, the indemnifying party shall
pay as incurred the fees and expenses of the counsel retained by the indemnified
party in the event (i) the indemnifying party and the indemnified party shall
have mutually agreed to the retention of such counsel, (ii) the indemnifying
party has failed to assume the defense of such proceeding or shall have failed
to retain counsel reasonably satisfactory to the indemnified party, or (iii) the
named parties to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and representation of both
parties by the same counsel under applicable rules of professional conduct,
would be inappropriate due to actual or potential differing interests between
them. It is understood that the indemnifying party shall not, in connection with
any proceeding or related proceedings in the same jurisdiction, be liable for
the reasonable fees and expenses of more than one separate firm (and appropriate
local counsel) for all such indemnified parties. Such firm shall be designated
in writing by the Underwriter in the case of parties indemnified pursuant to
Section 7(a) and by the Company in the case of parties indemnified pursuant to
Section 7(b). The indemnifying party shall not be liable for any settlement of
any proceeding effected without its written consent but if settled with such
consent or if there be a final judgment for the plaintiff, the indemnifying
party agrees to indemnify the indemnified party from and against any loss or
liability by reason of such settlement or judgment.
d. If the indemnification provided for in this Section 7 is
unavailable (other than by reason of the exception contained in the second
sentence of Section 7(c) hereof) to or insufficient to hold harmless an
indemnified party under Section 7(a) or (b) above in respect of any losses,
claims, damages or liabilities (or actions or proceedings in respect thereof
referred to therein, then each indemnifying party shall contribute to the amount
paid or payable by such indemnified party as a result of such losses, claims,
damages or liabilities (or actions or proceedings in respect thereof) in such
proportion as is appropriate to reflect the relative benefits received by the
Company on the one hand and the Underwriter on the other from the offering of
the Preferred Securities. If, however, the allocation provided by the
immediately preceding sentence is not permitted by applicable law or if the
indemnified party failed to give the notice required under Section 7(c) above,
then each indemnifying party shall contribute to such amount paid or payable by
such
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indemnified party in such proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of the Company on the one hand and
the Underwriter on the other in connection with the statements or omissions
which resulted in such losses, claims, damages or liabilities (or actions or
proceedings in respect thereof) as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one hand
and the Underwriter on the other shall be deemed to be in the same proportion as
the total net proceeds from the offering (before deducting expenses) received by
the Company bears to the total underwriting discounts and commissions received
by the Underwriter, in each case as set forth in the table on the cover page of
the Prospectus. The relative fault shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by the Company on the one hand or the Underwriter on the
other and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
The Company and the Underwriter agree that it would not be just and
equitable if contributions pursuant to this Section 7(d) were determined by pro
rata allocation or by any other method of allocation which does not take account
of the equitable considerations referred to above in this Section 7(d). The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages or liabilities (or actions or proceedings in respect thereof)
referred to above in this Section 7(d) shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this subsection (d), (i) except with respect to information
contained or omitted from the Registration Statement, any Preliminary Prospectus
or the Prospectus or any amendment or supplement thereto in reliance upon and in
conformity with written information furnished to the Company by or through the
Underwriter specifically for use in the preparation thereof, the Underwriter
shall not be required to contribute any amount in excess of the underwriting
discounts and commissions applicable to the Preferred Securities purchased by
the Underwriter and (ii) no person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
e. In any proceeding relating to the Registration Statement,
any Preliminary Prospectus, the Prospectus or any supplement or amendment
thereto, each party against whom contribution may be sought under this Section 7
hereby consents to the jurisdiction of any court having jurisdiction over any
other contributing party, agrees that process issuing from such court
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may be served upon him or it by any other contributing party and consents to the
service of such process and agrees that any other contributing party may join
him or it as an additional defendant in any such proceeding in which such other
contributing party is a party.
SECTION 8. Representations, Warranties and Agreements to Survive
Delivery. The reimbursement, indemnification and contribution agreements
contained in this Agreement and the representations, warranties and covenants
contained in this Agreement shall remain in full force and effect, regardless of
(a) any termination of this Agreement, (b) any investigation made by or on
behalf of the Underwriter or by or on behalf of any person controlling the
Underwriter, or by or on behalf of the Company, and (c) delivery of and payment
for the Preferred Securities to the Underwriter.
SECTION 9. Termination of Agreement. The Underwriter may terminate this
Agreement, by notice to the Company, at any time at or prior to the Closing Date
or any Option Closing Date (i) if there has been, since the respective dates as
of which information is given in the Registration Statement, any material
adverse change in the condition, financial or otherwise, of the Company and its
subsidiaries considered as one enterprise, or in the earnings, 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)
if there has occurred any new outbreak of hostilities or escalation of any
existing hostilities or other calamity or crisis the effect of which on the
financial markets of the United States is such as to make it, in the reasonable
professional judgment of the Underwriter, impracticable to market the Preferred
Securities or to enforce contracts for the sale of the Preferred Securities, or
(iii) if trading in the securities of the Company has been suspended by the
Commission or if trading or quotation generally on the Nasdaq National Market
has been suspended, or minimum or maximum prices for trading have been fixed, or
maximum ranges of prices for securities have been required by the Nasdaq
National Market or by order of the Commission or any other governmental
authority, or (iv) if a banking moratorium has been declared by either federal
or Pennsylvania authorities.
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, and provided further that Sections 7 and 8 hereof
shall survive such termination.
SECTION 10. Notices. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunications. Notices to the
Underwriter shall be directed
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to it at Alex. Xxxxx & Sons Incorporated, 0 Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxx
00000, Attention of Xxxxxx X. Xxxxxx; and notice to the Company and the Trust
shall be directed to it at [________________], _______, Pennsylvania [_____],
Attention of ______________.
SECTION 11. Parties. This Agreement shall inure to the benefit of and
be binding upon the Underwriter and the Company and their respective successors.
Nothing expressed or mentioned in this Agreement is intended or shall be
construed to give any person, firm or corporation, other than the parties hereto
and their respective successors and the controlling persons and officers and
directors referred to in Sections 7 and 8 and their heirs and legal
representatives, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision herein contained. This Agreement and
all conditions and provisions hereof are intended to be for the sole and
exclusive benefit of the parties hereto and their respective successors, and
said controlling persons and officers and directors and their heirs and legal
representatives, and for the benefit of no other person, firm or corporation. No
purchaser of Securities from an Underwriter shall be deemed to be a successor by
reason merely of such purchase.
SECTION 12. GOVERNING LAW AND TIME. THIS AGREEMENT SHALL BE GOVERNED
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE COMMONWEALTH OF PENNSYLVANIA
APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED IN SAID STATE. SPECIFIED TIMES
OF DAY REFER TO EASTERN DAYLIGHT SAVINGS TIME.
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If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us a counterpart hereof, whereupon this
instrument along with all counterparts will become a binding agreement between
the Underwriter and the Company in accordance with its terms.
Very truly yours,
NPB CAPITAL TRUST
By: National Penn Bancshares,
Inc., on behalf of NPB Capital Trust
By:
-----------------------------------
Name:
Title:
NATIONAL PENN BANCSHARES, INC.
By:
-----------------------------------
Name:
Title:
Confirmed and accepted, as of the date first above written.
ALEX. XXXXX & SONS INCORPORATED
By:
---------------------------------
Name:
Title:
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EXHIBIT A
The opinion of special counsel to the Company to be delivered pursuant to
Section 6(b)(i) of the Underwriting Agreement shall be substantially to the
effect that:
1. The Company is a corporation validly organized and presently subsisting under
the laws of the Commonwealth of Pennsylvania, with requisite corporate power and
authority to own its properties and conduct its business as described in the
Registration Statement, except for such power and authority the absence of which
would not have a material adverse effect on the Company, and is duly registered
as bank holding company under the Bank Holding Company Act of 1956, as amended.
2. The Underwriting Agreement has been duly authorized, executed and delivered
by the Company.
3. The Trust Agreement has been duly authorized, executed and delivered by the
Company, and is a valid and binding obligation of the Company, enforceable
against the Company in accordance with its terms, except as such enforceability
may be limited by applicable bankruptcy, insolvency, reorganization,
receivership, readjustment of debt, moratorium, fraudulent conveyance or similar
laws relating to or affecting creditors' rights generally, general equity
principles (whether considered in a proceeding in equity or at law) and an
implied covenant of good faith and fair dealing.
4. The Guarantee Agreement has been duly authorized, executed and delivered by
the Company and is a valid and binding obligation of the Company enforceable
against the Company in accordance with its terms, except as such enforceability
may be limited by applicable bankruptcy, insolvency, reorganization,
receivership, readjustment of debt, moratorium, fraudulent conveyance or similar
laws relating to or affecting creditors' rights generally, general equity
principles (whether considered in a proceeding in equity or at law) and an
implied covenant of good faith and fair dealing.
5. The Indenture has been duly authorized, executed and delivered by the
Company, has been duly qualified under the Trust Indenture Act, and is a valid
and binding agreement of the Company, enforceable against the Company in
accordance with its terms, except as such enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, receivership, readjustment of
debt, moratorium, fraudulent conveyance or similar laws relating to or affecting
creditors' rights generally, general equity principles (whether considered in a
proceeding in equity or at law) and an implied covenant of good faith and fair
dealing.
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6. The Subordinated Debentures have been duly authorized, executed and delivered
by the Company and when duly authenticated in accordance with the Indenture and
delivered and paid for in accordance with the Underwriting Agreement, will be
valid and binding obligations of the Company, entitled to the benefits of the
Indenture and enforceable against the Company in accordance with their terms,
except as such enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, receivership, readjustment of debt, moratorium,
fraudulent conveyance or similar laws relating to or affecting creditors' rights
generally, general equity principles (whether considered in a proceeding in
equity or at law) and an implied covenant of good faith and fair dealing.
7. The Trust is not an "investment company" or an entity "controlled" by an
"investment company," as such terms are defined in Investment Company Act of
1940, as amended.
8. The statements set forth in the Registration Statement under the captions
"Supervision, Regulation and Other Matters," "Description of Preferred
Securities," "Description of the Debentures," "Description of Guarantee" and
"Relationship Among the Preferred Securities, the Junior Subordinated Debentures
and the Guarantee," insofar as they purport to describe the provisions of the
laws and documents referred to therein, fairly summarize the matters described
therein; and the Preferred Securities, the Debentures and the Guarantee conform
to the descriptions contained in the Registration Statement in all material
respects.
9. The statements of law or legal conclusions and opinions set forth in the
Registration Statement under the caption "Certain Federal Income Tax
Consequences," subject to the assumptions and conditions described therein,
constitute such counsel's opinion.
10. The Registration Statement was declared effective under the Securities Act
as of the date and time specified in such opinion and, to the best of such
counsel's knowledge and information, no stop order suspending the effectiveness
of the Registration Statement has been issued under the Securities Act and no
proceedings therefor have been initiated or threatened by the Commission.
11. The Registration Statement and the Prospectus and any amendment or
supplement thereto made by the Company prior to the Closing Date or any Option
Closing Date (other than the financial statements and financial and statistical
data included therein, as to which no opinion need be rendered), when it or they
became effective or were filed with the Commission, as the case may be, and in
each case at the Closing Date or any Option Closing Date, complied as to form in
all material respects with the requirements of the Securities Act, the Trust
Indenture Act and the applicable rules and regulations under said acts and the
documents
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incorporated by reference into the Prospectus (other than the financial
statements and financial and statistical data included therein, as to which no
opinion need be rendered) complied as to form in all material respects with the
requirements of the Exchange Act and the rules and regulations of the Commission
thereunder, and such counsel have no reason to believe that the Registration
Statement, at the time it became effective, contained any untrue statement of a
material fact or omitted to state a material fact necessary in order to make the
statements contained therein, not misleading, or that the Prospectus, at the
time it was mailed to the Commission for filing or at the Closing Date or any
Option Closing Date, contained any untrue statement of a material fact or
omitted to state a material fact necessary in order to make the statements
contained therein, in the light of the circumstances under which they were made,
not misleading.
12. Such counsel knows of no material legal or governmental proceedings pending
to which the Company or any of its subsidiaries is a party or of which any
property of the Company or any of its subsidiaries is the subject which are
required to be disclosed in the Registration Statement or which would affect the
consummation of the transactions contemplated in this Agreement, the Indenture
or the Preferred Securities; and such counsel knows of no such proceedings which
are threatened or contemplated by governmental authorities or threatened by
others.
13. Such counsel knows of no contracts, indentures, mortgages, loan agreements,
notes, leases or other instruments required to be described in the Registration
Statement or to be filed as exhibits thereto other than those described therein
or filed or incorporated by reference as exhibits thereto, and such instruments
as are summarized in the Registration Statement are fairly summarized in all
material respects.
14. No approval, authorization, consent, registration, qualification or other
order of any public board or body is required in connection with the execution
and delivery of this Agreement, the Trust Agreement, the Guarantee Agreement,
and the Indenture or the issuance and sale of the Preferred Securities or the
consummation by the Company of the other transactions contemplated by this
Agreement, the Trust Agreement, the Guarantee Agreement, or the Indenture,
except such as have been obtained under the Securities Act, the Exchange Act and
the Trust Indenture Act or such as may be required under the blue sky or
securities laws of various states in connection with the offering and sale of
the Preferred Securities (as to which such counsel need express no opinion).
15. The execution and delivery of this Agreement, the Trust Agreement, the
Guarantee Agreement, and the Indenture, the issue and sale of the Preferred
Securities and the Subordinated
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Debentures, the compliance by the Company with the provisions of the Preferred
Securities, the Subordinated Debentures, the Indenture and this Agreement and
the consummation of the transactions herein and therein contemplated will not
conflict with or constitute a breach of, or default under, the articles of
incorporation or by-laws of the Company or a breach or default under any
contract, indenture, mortgage, loan agreement, note, lease or other instrument
known to such counsel to which either the Company or any of its subsidiaries is
a party or by which either of them or any of their respective properties may be
bound except for such breaches as would not have a material adverse effect on
the Company and its subsidiaries considered as one enterprise, nor will such
action result in a violation on the part of the Company or any of its
subsidiaries of any applicable law or regulation or of any administrative,
regulatory or court decree known to such counsel.
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EXHIBIT B
The opinion of counsel to the Trust Company and Trust Delaware to be delivered
pursuant to Section 6(b)(iii) of the Underwriting Agreement shall be
substantially to the effect that:
1. The Trust Company is duly incorporated and is validly existing in good
standing as a banking corporation with trust powers under the laws of the State
of New York.
2. The Indenture Trustee has the requisite power and authority to execute,
deliver and perform its obligations under the Indenture, and has taken all
necessary corporate action to authorize the execution, delivery and performance
by it of the Indenture.
3. The Guarantee Trustee has the requisite power and authority to execute,
deliver and perform its obligations under the Guarantee Agreement, and has taken
all necessary corporate action to authorize the execution, delivery and
performance by it of the Guarantee Agreement.
4. The Property Trustee has the requisite power and authority to execute and
deliver the Trust Agreement, and has taken all necessary corporate action to
authorize the execution and delivery of the Trust Agreement.
5. Each of the Indenture and the Guarantee Agreement has been duly executed and
delivered by the Indenture Trustee and the Guarantee Trustee, respectively, and
constitutes a legal, valid and binding obligation of the Indenture Trustee and
the Guarantee Trustee, respectively, enforceable against the Indenture Trustee
and the Guarantee Trustee, respectively in accordance with its respective terms,
except that certain payment obligations may be enforceable solely against the
assets of the Trust and except that such enforcement may be limited by
bankruptcy, insolvency, reorganization, moratorium, liquidation, fraudulent
conveyance and transfer or other similar laws applicable to Delaware banking
corporations affecting the enforcement of creditors' rights generally, and by
general principles of equity, including, without limitation, concepts of
materiality, reasonableness, good faith and fair dealing (regardless of whether
such enforceability is considered in a proceeding in equity or at law).
6. The Subordinated Debentures delivered on the date hereof have been duly
authenticated by the Indenture Trustee in accordance with the terms of the
Indenture.
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EXHIBIT C
The opinion of counsel, as special Delaware counsel to the Company and the Trust
to be delivered pursuant to Section 6(b)(iv) of the Underwriting Agreement shall
be substantially to the effect that:
1. The Trust has been duly created and is validly existing in good standing as a
business trust under the Delaware Business Trust Act, 12 Del. C. Section 3801 et
seq. (the "Delaware Act"), and all filings required under the laws of the State
of Delaware with respect to the creation and valid existence of the Trust as a
business trust have been made.
2. Under the Delaware Act and the Trust Agreement the Trust has the trust power
and authority to own its property and to its conduct its business, all as
described in the Prospectus.
3. The Trust Agreement constitutes a valid and binding obligation of the Company
and the Property Trustee and the Delaware Trustee, and is enforceable against
the Company and the Trustees, in accordance with its terms.
4. Under the Delaware Act and the Trust Agreement, the Trust has the trust power
and authority to execute and deliver, and to perform its obligations under, the
Underwriting Agreement and (ii) to issue and perform its obligations under the
Preferred Securities and the Common Securities.
5. Under the Delaware Act and the Trust Agreement, the execution and delivery by
the Trust of the Underwriting Agreement, and the performance by the Trust of its
obligations thereunder, have been duly authorized by all necessary trust action
on the part of the Trust.
6. The Preferred Securities have been duly authorized by the Trust Agreement and
are duly and validly issued and, subject to the qualifications set forth herein,
fully paid and nonassessable undivided beneficial interests in the assets of the
Trust and are entitled to the benefits of the Trust Agreement. The Holders, as
beneficial owners of the Trust, will be entitled to the same limitations of
personal liability extended to stockholders of private corporations for profit
organized under the General Corporation Law of the State of Delaware. We note
that the Holders may be obligated pursuant to the Trust Agreement, (i) to
provide indemnity and/or security in connection with and pay taxes or
governmental charges arising from transfers or exchanges of Preferred Securities
Certificates and the issuance of replacement Preferred Securities Certificates,
and (ii) to provide security or indemnity in connection with requests of or
directions to the
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Property Trustee to exercise its rights and powers under the Trust Agreement.
7. The Common Securities have been duly authorized by the Trust Agreement and
are duly and validly issued and, subject to the qualifications set forth herein,
fully paid and nonassessable undivided beneficial interests in the assets of the
Trust and are entitled to the benefits of the Trust Agreement. The Holders, as
beneficial owners of the Trust, will be entitled to the same limitations of
personal liability extended to stockholders of private corporations for profit
organized under the General Corporation Law of the State of Delaware. We note
that the Holders may be obligated pursuant to the Trust Agreement, (i) to
provide indemnity and/or security in connection with and pay taxes or
governmental charges arising from transfers or exchanges of Common Securities
Certificates and the issuance of replacement Common Securities Certificates, and
(ii) to provide security or indemnity in connection with requests of or
directions to the Property Trustee to exercise its rights and powers under the
Trust Agreement.
8. Under the Delaware Act and the Trust Agreement, the issuance of the Preferred
Securities and Common Securities is not subject to preemptive rights.
9. The issuance and sale by the Trust of the Preferred Securities and Common
Securities, the purchase by the Trust of the Subordinated Debentures, the
execution, delivery and performance by the Trust of the Underwriting Agreement,
the consummation by the Trust of the transactions contemplated by the
Underwriting Agreement and the compliance by the Trust with its obligations
thereunder will not violate (i) any of the provisions of the Certificate of
Trust or the Trust Agreement or (ii) any applicable Delaware law or
administrative regulation.
10. Trust Delaware is duly incorporated and is validly existing in good standing
as a banking corporation with trust powers under the laws of the State of
Delaware.
11. The Delaware Trustee has the requisite power and authority to execute and
deliver the Trust Agreement, and has taken all necessary corporate action to
authorize the execution and delivery of the Trust Agreement.
