Exhibit 1. Underwriting Agreement
1,000,000 Shares
REPUBLIC FIRST BANCORP, INC.
Common Stock
$0.01 Par Value
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UNDERWRITING AGREEMENT
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Philadelphia, Pennsylvania
October , 0000
XXXXXX XXXXXXXXXX XXXXX INC.
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
Ladies and Gentlemen:
REPUBLIC FIRST BANCORP, INC., a Pennsylvania corporation ("Republic"),
proposes to sell to the Xxxxxx Xxxxxxxxxx Xxxxx Inc. (the "Underwriter"),
1,000,000 shares of Republic's Common Stock, par value $0.01 per share (the
"Common Stock"). The 1,000,000 shares of Common Stock to be sold to the
Underwriter by Republic are referred to herein as the "Firm Shares." The
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Firm Shares shall be offered to the public at a public offering price of
$_____ per Firm Share (the "Offering Price").
In order to cover over-allotments in the sale of the Firm Shares, the
Underwriter may purchase for the Underwriter's own accounts up to 150,000
additional shares of Common Stock from Republic. Such 150,000 additional
shares of Common Stock are referred to herein as the "Optional Shares." If
any Optional Shares are purchased, the Optional Shares shall be purchased for
offering to the public at the Offering Price and in accordance with the terms
and conditions set forth herein. The Firm Shares and the Optional Shares are
referred to collectively herein as the "Shares."
1. Representations and Warranties of Republic. Republic represents
and warrants to, and agrees with, the several Underwriters that:
(a) Republic has prepared, in conformity with the requirements of
the Securities Act of 1933, as amended (the "Act"), and the rules and
regulations (the "Regulations") of the Securities and Exchange Commission
(the "SEC") under the Act in effect at all applicable times, and has filed
with the SEC a registration statement on Form SB-2 (File No. 333-37951) and
one or more amendments thereto for the purpose of registering the Shares under
the Act. Copies of such registration statement and any amendments thereto,
and all forms of the related prospectus contained therein, have been
delivered to the Underwriter. Any preliminary prospectus included in such
registration statement or filed with the SEC pursuant to Rule 424(a) of the
Regulations is hereinafter called a "Preliminary Prospectus." The various
parts of such registration statement, including all exhibits thereto and the
information contained in the form of final prospectus filed with the SEC
pursuant to Rule 424(b) of the Regulations in accordance with Section 5(a) of
this Agreement and deemed by virtue of Rule 424 of the Regulations to be part
of the registration statement at the time it was declared effective, each as
amended at the time the registration statement became effective, including
the information (if any) deemed to be part of the registration statement at
the time of effectiveness pursuant to Rule 430A of the Regulations, are
hereinafter collectively called the "Registration Statement." The final
prospectus in the form included in the Registration Statement or
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first filed with the SEC pursuant to Rule 424(b) of the Regulations and any
amendments or supplements thereto, including the information (if any) deemed
to be part of that prospectus at the time of effectiveness pursuant to Rule
430A of the Regulations, is hereinafter called the "Prospectus." All
references to the Registration Statement, the Preliminary Prospectus and the
Prospectus include all documents incorporated therein by reference. If
Republic has filed an abbreviated registration statement to register
additional Common Stock pursuant to Rule 462(b) under the Act (the "Rule 462
Registration Statement"), then any reference herein to the term "Registration
Statement" shall be deemed to include such Rule 462 Registration Statement.
(b) The Registration Statement has become effective under the Act,
and the SEC has not issued any stop order suspending the effectiveness of the
Registration Statement or preventing or suspending the use of the Preliminary
Prospectus, nor has the SEC instituted or threatened to institute proceedings
with respect to such an order. No stop order suspending the sale of the
Shares in any jurisdiction designated by the Underwriter as provided for
in Section 5(f) hereof has been issued, and no proceedings for that purpose
have been instituted or threatened. Republic has complied in all material
respects with all requests of the SEC, or requests of which Republic has been
advised of any state or foreign securities commission in a state or foreign
jurisdiction designated by the Underwriter as provided for in Section 5(f)
hereof, for additional information to be included in the Registration
Statement, any Preliminary Prospectus or the Prospectus. Each Preliminary
Prospectus conformed to all the requirements of the Act and the Regulations
as of its date in all material respects and did not, as of its date, contain
any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading, except
the foregoing shall not apply to statements in or omissions from any
Preliminary Prospectus in reliance upon and in conformity with information
supplied to Republic in writing by or on behalf of the Underwriter through
the Underwriter expressly for use therein. The Registration Statement,
on the date on which it was declared effective by the SEC (the "Effective
Date") and when any post-effective amendment thereof shall become effective,
and
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the Prospectus, at the time it is filed with the SEC including, if
applicable, pursuant to Rule 424(b), and on the Closing Date (as defined in
Section 3 hereof) and any Option Closing Date (as defined in Section 4(b)
hereof), conformed and will conform in all material respects to all the
requirements of the Act and the Regulations, and did not and will not, on any
of such dates, include any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to make
the statements therein not misleading, except that this representation and
warranty does not apply to statements in or omissions from the Registration
Statement or the Prospectus made in reliance upon and in conformity with
information furnished to Republic in writing by the Underwriter expressly for
use therein.
(c) Republic is a corporation duly organized, validly existing
and in good standing under the laws of the Commonwealth of Pennsylvania, with
all necessary corporate power and authority, and all required licenses,
permits, certifications, registrations, approvals, consents and franchises to
own or lease and operate its properties and to conduct its current business
as described in the Prospectus, and to execute, deliver and perform this
Agreement. Republic is duly registered with the Board of Governors of the
Federal Reserve System (the "Federal Reserve Board") as a bank holding
company under the Bank Holding Company Act of 1956, as amended (the "BHCA").
(d) Republic's only direct or indirect subsidiaries are First
Republic Bank (the "Bank") and Republic Services, Inc. ("RSI") and Republic
does not own or control, directly or indirectly, more than 5% of any class of
equity security of any corporation, association or other entity other than
the Bank and RSI (collectively the "Subsidiaries"). The Bank is a
Pennsylvania-chartered commercial bank and RSI is a Delaware corporation and
each of the Bank and RSI are duly organized, validly existing and in good
standing under the laws of the State where each is incorporated, with all
necessary corporate power and authority, and all required licenses, permits,
certifications, registrations, approvals, consents and franchises to own or
lease and operate their respective properties and to conduct their respective
businesses as described in the Prospectus. The deposit accounts of the Bank
are insured by the Bank Insurance Fund administered by the Federal Deposit
Insurance
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Corporation (the "FDIC") up to the maximum amount provided by law; and no
proceedings for the modification, termination or revocation of any such
insurance are pending or, to the knowledge of Republic, threatened. Republic
and each of its Subsidiaries are duly qualified to do business as foreign
corporations, and are in good standing, in all jurisdictions in which such
qualification is required, except where the failure to so qualify would not
have a material adverse effect on the general affairs, properties, condition
(financial or otherwise), results of operations, stockholders' equity,
business or prospects (collectively, the "Business Conditions") of Republic
and the Subsidiaries taken as a whole.
(e) The outstanding shares of capital stock of each of the
Subsidiaries has been duly authorized and validly issued, are fully paid and
non-assessable and are owned, directly or indirectly, by Republic free and
clear of all liens, encumbrances and security interests; and no options,
warrants or other rights to purchase, agreements or other obligations to
issue, or other rights to convert any obligations into, shares of capital
stock or ownership interests in either of the Subsidiaries or securities
convertible into or exchangeable for capital stock of, or other ownership
interests in, either of the Subsidiaries are outstanding.
(f) This Agreement has been duly authorized, executed and
delivered by Republic and constitutes its legal, valid and binding
obligation, enforceable against Republic in accordance with its terms, except
as enforcement may be limited by bankruptcy, insolvency or other similar laws
affecting the enforcement of creditors' rights generally and subject to
applicability of general principles of equity and except, as to this
Agreement, as rights to indemnity and contribution may be limited by federal
and state securities laws or principles of public policy.
(g) The execution, delivery and performance of this Agreement and
the transactions contemplated herein, do not and will not, with or without
the giving of notice or the lapse of time, or both, (i) conflict with any
term or provision of Republic's or either of the Subsidiaries' Articles of
Incorporation or Bylaws; (ii) result in a breach of, constitute a default
under, result in the termination or modification of,
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result in the creation or imposition of any lien, security interest, charge
or encumbrance upon any of the properties of Republic or either of the
Subsidiaries or require any payment by Republic or either of the Subsidiaries
or impose any liability on Republic or either of the Subsidiaries pursuant
to, any contract, indenture, mortgage, deed of trust, commitment or other
agreement or instrument to which Republic or either of the Subsidiaries is a
party or by which any of their respective properties are bound or affected
other than this Agreement; (iii) assuming compliance with all applicable
state securities ("Blue Sky") laws and the rules of the National Association
of Securities Dealers, Inc. ("NASD") applicable to the offer and sale of the
Shares, violate any law, rule, regulation, judgment, order or decree of any
government or governmental agency, instrumentality or court, domestic or
foreign, having jurisdiction over Republic or either of the Subsidiaries or
any of their respective properties or businesses; or (iv) result in a breach,
termination or lapse of Republic's or either of the Subsidiaries' corporate
power and authority to own or lease and operate their respective properties
and conduct their respective businesses.
(h) At the date or dates indicated in the Prospectus, Republic
had the duly authorized and outstanding capitalization set forth in the
Prospectus under the caption "Capitalization" and will have, as of the
issuance of the Firm Shares on the Closing Date, the as adjusted
capitalization set forth therein as of the date indicated in the Prospectus.
On the Effective Date, the Closing Date and any Option Closing Date, there
will be no options or warrants or other outstanding rights to purchase,
agreements or obligations to issue or agreements or other rights to convert
or exchange any obligation or security into, capital stock of Republic or
securities convertible into or exchangeable for capital stock of Republic,
except as described in the Prospectus or the grant of options after the date
of the Prospectus under option plans of the Company described in the
Prospectus. The information in the Prospectus insofar as it relates to all
outstanding options and other rights to acquire securities of Republic as of
the Effective Date and immediately prior to the Closing Date and any Option
Closing Date is true and correct in all material respects.
(i) The currently outstanding shares of Republic's capital stock
have been duly authorized and are validly issued,
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fully paid and non-assessable, and none of such outstanding shares of
Republic's capital stock has been issued in violation of any preemptive
rights of any security holder of Republic. The holders of the outstanding
shares of Republic's capital stock are not subject to personal liability
solely by reason of being such holders. All prior offers and sales of
Republic's capital stock were at all relevant times registered under the Act
or exempt from the registration requirements of the Act and were duly
registered with or the subject of an available exemption from the
registration requirements of the applicable state securities or Blue Sky
laws, except for such offers and sales which are described in the
Registration Statement. The failure to duly register or satisfy an
applicable exemption from registration pursuant to the Act and/or applicable
state securities or Blue Sky laws with respect to any prior offers and sales
of Republic's capital stock which are described in the Registration
Statement, will not, either individually or in the aggregate, have a material
adverse effect on the Business Conditions of Republic and the Subsidiaries
taken as a whole. The authorized capital stock of Republic including,
without limitation, the outstanding Common Stock, the Shares being issued,
and the outstanding options to purchase shares of Common Stock, conform in
all material respects with the descriptions thereof in the Prospectus, and
such descriptions conform in all material respects with the instruments
defining the same.
(j) When the Shares have been duly delivered against payment
therefor as contemplated by this Agreement, the Shares will be validly
issued, fully paid and non-assessable, and the holders thereof will not be
subject to personal liability solely by reason of being such holders. The
certificates representing the Shares are in proper legal form under, and
conform in all respects to the requirements of, the Pennsylvania Business
Corporation Law, as amended (the "PBCL"). Neither the filing of the
Registration Statement nor the offering or sale of the Shares as contemplated
by this Agreement gives any security holder of Republic any rights for or
relating to the registration of any Common Stock or any other capital stock
of Republic or any rights to covert or have redeemed or otherwise receive
anything of value with respect to any other security of Republic.
(k) No consent, approval, authorization, order, registration,
license or permit of, or filing or registration
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with, any court, government, governmental agency, instrumentality or other
regulatory body or official is required for the valid and legal execution,
delivery and performance by Republic of this Agreement and the consummation
of the transactions contemplated hereby or described in the Prospectus,
except such as may be required for the registration of the Shares under the
Act, the Regulations and the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), and for compliance with the applicable state securities or
Blue Sky laws or the Bylaws, rules and other pronouncements of the NASD.
(l) The Common Stock (including the Shares) have been registered
pursuant to Section 12(g) of the Exchange Act. The issued and outstanding
shares of Common Stock (including the Shares) are included for quotation on
the NASDAQ National Market. Neither Republic nor, to Republic's knowledge,
any other person has taken any action designed to cause, or likely to result
in, the termination of the registration of the Common Stock under the Exchange
Act. Republic has not received any notification that the SEC or the NASD is
contemplating terminating such registration or inclusion.
(m) The statements in the Registration Statement and Prospectus,
insofar as they are descriptions of or references to contracts, agreements or
other documents, are accurate in all material respects and present or
summarize fairly, in all material respects, the information required to be
disclosed under the Act or the Regulations, and there are no contracts,
agreements or other documents, instruments or transactions of any character
required to be described or referred to in the Registration Statement or
Prospectus or to be filed as exhibits to the Registration Statement that have
not been so described, referred to or filed, as required.
(n) Each contract or other instrument (however characterized or
described) to which Republic or either of its Subsidiaries is a party or by
which any of their respective properties or businesses is bound or affected
and which is material to the conduct of Republic's or either of its
Subsidiaries', business has been duly and validly executed by Republic or
either of its Subsidiaries, as applicable, and, to the knowledge of Republic,
by the other parties thereto. Each such contract or other instrument is in
full force and effect and
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is enforceable in all material respects against the parties thereto in
accordance with its terms, except as enforcement may be limited by
bankruptcy, insolvency or other similar laws affecting the enforcement of
creditors' rights generally and subject to applicability of general
principles of equity, and neither Republic nor either of its Subsidiaries is,
and to the knowledge of Republic, no other party is, in default thereunder,
and no event has occurred that, with the lapse of time or the giving of
notice, or both, would constitute a default under any such contract or other
instrument. All necessary consents under such contracts or other instruments
to the disclosure in the Prospectus with respect thereto have been obtained.
(o) The consolidated financial statements of Republic (including
the notes thereto) filed as part of any Preliminary Prospectus, the
Prospectus and the Registration Statement present fairly, in all material
respects, the financial position of Republic as of the respective dates
thereof, and the results of operations and cash flows of Republic for the
periods indicated therein, all in conformity with generally accepted
accounting principles. The supporting notes included in the Registration
Statement fairly state in all material respects the information required to
be stated therein in relation to the financial statements taken as a whole.
The financial information included in the Prospectus under the caption
"Prospectus Summary - Summary Selected Consolidated Financial Data" pursuant
to applicable accounting and securities law standards, presents fairly the
information shown therein and has been compiled on a basis consistent with
that of the audited consolidated financial statements included in the
Registration Statement. The unaudited pro forma adjustments to financial
information included in the Registration Statement have been properly
applied, pursuant to applicable accounting and securities law standards, to
the historical amounts in the compilation of that information to reflect the
sale by Republic of 1,000,000 shares of Common Stock offered thereby at an
assumed offering or actual price set forth in the Preliminary Prospectus or
the Prospectus, as the case may be, and the application of the estimated net
proceeds therefrom.
(p) Since the respective dates as of which information is given in
the Registration Statement and the Prospectus, except as otherwise stated
therein, there has not been (i) any material adverse change (including,
whether or not insured against, any
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material loss or damage to any material assets), or development involving a
prospective material adverse change, in the Business Conditions of Republic
and the Subsidiaries taken as a whole; (ii) any material adverse change,
loss, reduction, termination or non-renewal of any material contract to which
Republic or either of its Subsidiaries is a party; (iii) any transaction
entered into by Republic or either of its Subsidiaries not in the ordinary
course of its business that is material to Republic; (iv) any dividend or
distribution of any kind declared, paid or made by Republic on its capital
stock, except for and to the extent described in the Prospectus; (v) any
liabilities or obligations, direct or indirect, incurred by Republic or
either of its Subsidiaries that are material to Republic or either of its
Subsidiaries; (vi) any change in the capitalization of Republic or either of
its Subsidiaries; or (vii) any change in the indebtedness of Republic or
either of its Subsidiaries that is material to Republic or either of its
Subsidiaries. Neither Republic nor either of its Subsidiaries has any
contingent liabilities or obligations that are material and that are not
expressly disclosed in the Prospectus.
(q) Republic has not distributed, and will not distribute, any
offering material in connection with the offering and sale of the Shares
other than the Registration Statement, a Preliminary Prospectus, the
Prospectus and other material, if any, permitted by the Act and the
Regulations. Neither Republic nor any of its officers, directors or
affiliates has taken, nor shall Republic or such persons take, any action
designed to, or that might be reasonably expected to, cause or result in
stabilization or manipulation of the price of the Common Stock.
(r) Republic and the Subsidiaries have filed with the appropriate
federal, state and local governmental agencies, and all foreign countries and
political subdivisions thereof, all tax returns that are required to be filed
or have duly obtained extensions of time for the filing thereof and have paid
all taxes shown on such returns or otherwise due and all material assessments
received by them to the extent that the same have become due. Neither
Republic nor either of its Subsidiaries has executed or filed with any taxing
authority, foreign or domestic, any agreement extending the period for
assessment or collection of any income or other tax and none of them is a
party to any pending action or proceeding by any foreign or domestic
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governmental agency for the assessment or collection of taxes, and no claims
for assessment or collection of taxes have been asserted against Republic or
either of its Subsidiaries that might materially adversely affect the
Business Conditions of Republic and the Subsidiaries taken as a whole.
(s) Coopers & Xxxxxxx, L.L.P. and Deloitte & Touche LLP, who have
certified the consolidated financial statements of Republic included as part
of the Registration Statement, are independent certified public accountants
with respect to Republic as required by the Act and the Regulations.
(t) Neither Republic nor either of its Subsidiaries is in
violation of, or in default under, any of the terms or provisions of (i) its
Articles of Incorporation or Bylaws or similar governing instruments, (ii)
any indenture, mortgage, deed of trust, contract, commitment or other
agreement or instrument to which it is a party or by which it or any of its
assets or properties is bound or affected, (iii) any law, rule, regulation,
judgment, order or decree of any government or governmental agency,
instrumentality or court, domestic or foreign, having jurisdiction over it or
any of its properties or business, or (iv) any license, permit,
certification, registration, approval, consent or franchise, except with
respect to clause (ii), (iii) or (iv) above, where any such default would not
have a material adverse effect on the Business Conditions of Republic and the
Subsidiaries taken as a whole.
(u) Except as expressly disclosed in the Prospectus, there are no
claims, actions, suits, protests, proceedings, arbitrations, investigations
or inquiries pending before, or, to Republic's knowledge, threatened or
contemplated by, any governmental agency, instrumentality, court or tribunal,
domestic or foreign, or before any private arbitration tribunal to which
Republic or either of its Subsidiaries is or may be made a party that could
reasonably be expected to affect the validity of any of the outstanding
shares of Common Stock, or that, if determined adversely to Republic or
either of its Subsidiaries would, in any case or in the aggregate, result in
any material adverse change in the Business Conditions of Republic and the
Subsidiaries taken as a whole, nor to Republic's knowledge is there any
reasonable basis for any such claim, action, suit, protest, proceeding,
arbitration, investigation or inquiry. There are no outstanding orders,
judgments or decrees of any court, governmental agency, instrumentality or
other tribunal enjoining Republic or either of its Subsidiaries from, or
requiring Republic or either of its Subsidiaries to take or refrain from
taking, any action, or to which Republic or either of its Subsidiaries or
their respective properties, assets or businesses are bound or subject.
(v) Each of Republic and the Subsidiaries owns, or possesses
adequate rights to use, all trademarks, trademark registrations, applications
for trademark registration, trade names, service marks, licenses, copyrights,
and other proprietary information necessary for, used in, or proposed to be
used in, the conduct of the business of Republic as described in the
Prospectus (collectively, the "Intellectual Property"). To Republic's
knowledge, Republic has not infringed, is not infringing and Republic has not
received any notice of conflict with, the asserted rights of others with
respect to the Intellectual Property that, individually or in the aggregate,
if the subject of an unfavorable decision, ruling or finding, could
materially adversely affect the Business Conditions of Republic and the
Subsidiaries taken as a whole, and Republic knows of no reasonable basis
therefor. To the knowledge of Republic, no other parties have infringed upon
or are in conflict with any Intellectual Property.
(w) Each of Republic and the Subsidiaries has good and marketable
title to all property described in the Prospectus as being owned by it, free
and clear of all liens, security interests, charges or encumbrances and the
like, except such as are expressly described or referred to in the Prospectus
or such as do not materially affect the Business Conditions or the conduct of
the business of Republic and the Subsidiaries as described in the Prospectus.
Each of Republic and the Subsidiaries has insured its property against loss
or damage by fire or other casualty, in amounts reasonably believed by
Republic to be adequate, and maintains insurance against such other risks as
management of Republic deems appropriate. All real and personal property
leased by Republic and the Subsidiaries as described or referred to in the
Prospectus, is held by Republic and the Subsidiaries, as applicable, under
valid leases. All real property owned by Republic and the Subsidiaries
(including offices and real estate acquired through foreclosure or
deed-in-lien thereof) and all real property securing any loans
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originated and/or purchased by Republic and the Subsidiaries (collectively,
the "Real Property") are, to the knowledge of Republic, in compliance with
all federal, state and local statutes, ordinances, regulations, rules,
standards and requirements of common law concerning or relating to industrial
hygiene and the protection of health and the environment (collectively, "the
Environmental Laws"), except to the extent that any failure in such
compliance would not materially adversely affect the Business Conditions of
Republic and the Subsidiaries taken as a whole. To the knowledge of
Republic, there are no conditions on, about, beneath or arising from the Real
Property, in close proximity to the Real Property or at any other location
that might give rise to liability, the imposition of a statutory lien or
require a "Response," "Removal" or "Remedial Action," as defined herein,
under any of the Environmental Laws, and that would materially adversely
affect the Business Conditions of Republic and the Subsidiaries taken as a
whole except as described in the Prospectus. Except as expressly disclosed
in the Prospectus, or which will not materially adversely affect the Business
Conditions of Republic and the Subsidiaries taken as a whole, (i) neither
Republic nor either of its Subsidiaries has received notice or has knowledge
of any claim, demand, investigation, regulatory action, suit or other action
instituted or threatened against Republic or either of its Subsidiaries or
any portion of the Real Property or any parcel in close proximity to the Real
Property relating to any of the Environmental Laws and (ii) neither Republic
nor either of its Subsidiaries has received any notice of material violation,
citation, complaint, order, directive, request for information or response
thereto, notice letter, demand letter or compliance schedule to or from any
governmental or regulatory agency arising out of or in connection with
"hazardous substances" (as defined by applicable Environmental Laws) on,
about, beneath, arising from or generated at the Real Property, near the Real
Property or at any other location. As used in this subsection, the terms
"Response, " Removal" and "Remedial Action" shall have the respective
meanings assigned to such terms under Sections 101(23) - 101(25) of the
Comprehensive Environmental Response, Compensation and Liability Act, as
amended by the Superfund Amendments and Reauthorization Act, 42 U.S.C9601(23)
-9601(25).
(x) Each of Republic and the Subsidiaries maintains a system of
internal accounting controls sufficient to provide
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reasonable assurances that: (i) transactions are executed in accordance with
management's general or specific authorization; (ii) transactions are
recorded as necessary in order to permit preparation of financial statements
in accordance with generally accepted accounting principles and to maintain
accountability for assets; (iii) access to assets is permitted only in
accordance with management's general or specific authorization; and (iv) the
recorded accountability for assets is compared with existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences.
(y) Except for the plans that are expressly disclosed in the
Prospectus or are not required to be disclosed therein, neither Republic nor
either of its Subsidiaries has any employee benefit plan, profit sharing
plan, employee pension benefit plan or employee welfare benefit plan or
deferred compensation arrangements ("Plans") that are subject to the
provisions of the Employee Retirement Income Security Act of 1974, as
amended, or the rules and regulations thereunder ("ERISA"). All Plans that
are subject to ERISA are in compliance with ERISA, in all material respects,
and, to the extent required by the Internal Revenue Code of 1986, as amended
(the "Code"), in compliance with the Code in all material respects. Neither
Republic nor either of its Subsidiaries has any employee pension benefit plan
that is subject to Part 3 of Subtitle B of Title I or ERISA or any defined
benefit plan or multi-employer plan. Neither Republic nor either of its
Subsidiaries has maintained retiree life or retiree health insurance plans
that are employee welfare benefit plans providing for continuing benefit or
coverage for any employee or any beneficiary of any employee after such
employee's termination of employment, except as required by Section 4980B of
the Code and except as disclosed in the Prospectus. No fiduciary or other
party in interest with respect to any of the Plans has caused any of such
Plans to engage in a prohibited transaction as defined in Section 406 of
ERISA. As used in this subsection, the terms "defined benefit plan,"
"employee benefit plan," "employee pension benefit plan," "employee welfare
benefit plan," "fiduciary" and "multiemployer plan" shall have the respective
meanings assigned to such terms in Section 3 of ERISA
(z) No labor dispute exists with Republic's or the Subsidiaries'
employees, and to Republic's knowledge, no such labor dispute is threatened.
Republic has no knowledge of any
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existing or threatened labor disturbance by the employees of any of the
principal suppliers, contractors or customers of Republic or the Subsidiaries
that would materially adversely affect the Business Conditions of Republic
and the Subsidiaries taken as a whole. None of Republic's or the
Subsidiaries' employees is covered by a collective bargaining agreement and
no union organizing activity exists with respect to any of such employees.
(aa) Neither Republic nor either of its Subsidiaries has
incurred any liability for any finder's fees or similar payments in
connection with the transactions contemplated herein other than as disclosed
in the Prospectus.
(bb) Republic is familiar with the Investment Company Act of
1940, as amended (the "1940 Act"), and the rules and regulations thereunder,
and has in the past conducted, and Republic intends to conduct, its affairs
in such a manner as to ensure that it will not be an "investment company"
within the meaning of the 1940 Act and the rules and regulations thereunder.
(cc) No statement, representation, warranty or covenant made by
Republic or either of its Subsidiaries in this Agreement or in any
certificate or document required by this Agreement to be delivered to the
Representative is, or as of the Closing Date or any Option Closing Date will
be, inaccurate, untrue or incorrect in any material respect. No transaction
has occurred or is proposed between or among Republic or either of its
Subsidiaries and any of their respective officers, directors or stockholders
or any affiliate of the foregoing, that is required to be described in and is
not described in the Registration Statement and the Prospectus.
(dd) Neither Republic or either of its Subsidiaries nor any
officer, director, employee, partner, agent or other person acting on behalf
of Republic or either of its Subsidiaries has, directly or indirectly, given
or agreed to give any money, property or similar benefit or consideration to
any customer or supplier (including any employee or agent of any customer or
supplier) or official or employee of any agency or instrumentality of any
government (foreign or domestic) or political party or candidate for office
(foreign or domestic) or any other person who was, is or in the future may be
in a position to affect the Business Conditions of Republic and the
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Subsidiaries taken as a whole or any actual or proposed business transaction
of Republic or either of its Subsidiaries that (i) could subject Republic or
either of its Subsidiaries to any liability (including, but not limited to,
the payment of monetary damages) or penalty in any civil, criminal or
governmental action or proceeding that would have a material adverse effect
on the Business Conditions of Republic and the Subsidiaries taken as a whole
or (ii) with respect to Republic, either of its Subsidiaries, or any officer
or director thereof, violates any law, rule or regulation to which Republic
or either of it Subsidiaries is subject.
Any certificate signed by any officer of Republic or either of its
Subsidiaries in such capacity and delivered to the Representative or to
counsel for the Underwriters pursuant to this Agreement shall be deemed a
representation and warranty by Republic or either of its Subsidiaries, as the
case may be, to the several Underwriters as to the matters covered thereby.
2. Purchase and Sale of Firm Shares. On the basis of the
representations, warranties, covenants and agreements contained herein, but
subject to the terms and conditions set forth herein, Republic shall sell the
Firm Shares to the Underwriter at the Offering Price less the
Underwriting Discounts and Commissions shown on the cover page of the
Prospectus, and the Underwriter shall purchase the Firm Shares
from Republic on a firm commitment basis, at the Offering Price less the
Underwriting Discounts and Commissions shown on the cover page of the
Prospectus. The Underwriter shall offer the Shares to the public as set forth
in the Prospectus.
3. Payment and Delivery. Payment for the Firm Shares shall be made by
certified or official bank check or checks payable to the order of Republic
in New York Clearing House (next day) funds, at the offices of Xxxxxx
Xxxxxxxxxx Xxxxx Inc., 0000 Xxxxxx Xxxxxx, Xxxxxxxxxxxx, Xxxxxxxxxxxx, or in
immediately
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available funds wired to such accounts as Republic may specify (with all
costs and expenses incurred by the Underwriter in connection with such
settlement in immediately available funds, including, but not limited to,
interest or cost of funds and expenses, to be borne by Republic), against
delivery of the Firm Shares to the Underwriter at its offices located at
00 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx for the respective accounts of the
Underwriters. Such payment and delivery will be made at 10:00 am.,
Philadelphia, Pennsylvania time, on the third business day after the date of
this Agreement, or at such other time on the same or such other date, not
later than seven business days thereafter as shall be designated in writing
by the Underwriter. Such time and date are referred to herein as the
"Closing Date." The certificates representing the Firm Shares to be sold and
delivered will be in such denominations and registered in such names as the
Underwriter requests not less than two full business days prior to the
Closing Date, and will be made available to the Underwriter for
inspection, checking and packaging not less than one full business day prior
to the Closing Date.
4. Option to Purchase Optional Shares.
(a) For the purposes of covering any over-allotments in connection
with the distribution and sale of the Firm Shares as contemplated by the
Prospectus, subject to the terms and conditions herein set forth, the
Underwriter is hereby granted an option by Republic to purchase all or any
part of the Optional Shares (the "Over-allotment Option"). The purchase
price to be paid for the Optional Shares shall be the Offering Price less the
Underwriting Discounts and Commissions shown on the cover page of the
Prospectus. The Over-allotment Option granted hereby may be exercised by the
Underwriter as to all or any part of the Optional Shares at any time and from
time to time within 30 days after the date of the Prospectus. The Underwriter
shall not be under any obligation to purchase any Optional Shares prior to an
exercise of the Over-allotment Option.
(b) The Over-allotment Option granted hereby may be exercised by
the Underwriter by giving notice to Republic by a letter sent by
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registered or certified mail, postage prepaid, telex, telegraph, telegram or
facsimile (such notice to be effective when received), addressed as provided
in Section 13 hereof, setting forth the number of Optional Shares to be
purchased, the date and time for delivery of and payment for the Optional
Shares and stating that the Optional Shares referred to therein are to be
used for the purpose of covering over-allotments in connection with the
distribution and sale of the Firm Shares. If such notice is given at least
two full business days prior to the Closing Date, the date set forth therein
for such delivery and payment shall be not earlier than the Closing Date. If
such notice is given after two full business days prior to the Closing Date,
the date set forth therein for such delivery and payment shall be a date
selected by the Underwriter not later than five full business days after
the exercise of the Over-allotment Option. The date and time set forth in
such a notice is referred to herein as an "Option Closing Date," and a
closing held pursuant to such a notice is referred to herein as an "Option
Closing." Upon each exercise of the Over-allotment Option, and on the basis
of the representations, warranties, covenants and agreements herein
contained, and subject to the terms and conditions herein set forth, the
Underwriter shall become obligated to purchase from Republic the number of
Optional Shares specified in each notice of exercise of the Over-allotment
Option.
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(c) Payment for the Optional Shares shall be made to Republic, by
certified or official bank check payable to the order of Republic, in New
York Clearing House (next day) funds, at the Underwriter's offices located at
00 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx, or such other place as shall be agreed upon
by Republic and the Underwriter, or in immediately available funds wired to
such accounts as Republic may specify (with all costs and expenses incurred
by the Underwriter in connection with such settlement in immediately
available funds, including, but not limited to, interest or cost of funds and
expenses, to be borne by Republic), against delivery of the Optional Shares
to the Underwriter at its offices located at 0000 Xxxxxx Xxxxxx,
Xxxxxxxxxxxx, Xxxxxxxxxxxx. The certificates representing the Optional
Shares to be issued and delivered will be in such denominations and
registered in such names as the Underwriter requests upon reasonable notice
prior to such Option Closing Date, and will be made available to the
Underwriter for inspection, checking and packaging at a reasonable time in
advance of such Option Closing Date.
5. Certain Covenants and Agreements of Republic. Republic covenants
and agrees with the several Underwriters as follows:
(a) If Rule 430A of the Regulations is employed, Republic will
timely file the Prospectus pursuant to and in compliance with Rule 424(b) of
the Regulations and will advise the Underwriter of the time and manner of
such filing.
(b) Republic will not file or publish any amendment or supplement
to the Registration Statement, Preliminary Prospectus or Prospectus at any
time before the completion (in the opinion of the Underwriters' counsel) of
the distribution of the Shares by the Underwriters that is not (i) in
compliance with the Regulations and (ii) approved by the Underwriter (such
approval not to be unreasonably withheld or delayed).
(c) Republic will advise the Underwriter immediately, and
confirm such advice in writing, (i) when any post-effective amendment to the
Registration Statement is filed with the SEC under Rule 462(c) under the Act
or otherwise, (ii) when any Rule 462(b) Registration Statement is filed,
(iii) of the receipt of any comments from the SEC concerning the
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Registration Statement, (iv) when any post-effective amendment to the
Registration Statement becomes effective, or when any supplement to the
Prospectus or any amended Prospectus has been filed, (v) of any request of
the SEC for amendment or supplementation of the Registration Statement or
Prospectus or for additional information, (vi) during the period when the
Prospectus is required to be delivered under the Act and Regulations, of the
happening of any event as a result of which the Registration Statement or the
Prospectus would include an untrue statement of a material fact or omit to
state a material fact necessary to make the statements therein not
misleading, (vii) during the period noted in clause (vi) above, of the need
to amend the Registration Statement or supplement the Prospectus to comply
with the Act, (viii) of the issuance by the SEC 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, and (ix)
of the suspension of the qualification of any of the Shares for offering or
sale in any jurisdiction in which the Underwriter intend to make such offers
or sales, or the initiation or threatening of any proceedings for any of such
purposes known to Republic. Republic will use its best efforts to prevent
the issuance of any such stop order or of any order preventing or suspending
such use, and if any such order is issued, to obtain as soon as possible the
lifting thereof.
(d) Republic has delivered to the Underwriter, without charge,
as many copies of each Preliminary Prospectus as the Underwriter has
reasonably requested. Republic will deliver to the Representative, without
charge, from time to time during the period when delivery of the Prospectus
is required under the Act, such number of copies of the Prospectus (as
supplemented or amended) as the Underwriter may reasonably request.
Republic hereby consents to the use of such copies of the Preliminary
Prospectus and the Prospectus for purposes permitted by the Act, the
Regulations and the securities or Blue Sky laws of the states or foreign
jurisdictions in which the Shares are offered by the Underwriter and
by all dealers to whom Shares may be sold, both in connection with the
offering and sale of the Shares and for such period of time thereafter as the
Prospectus is required by the Act to be delivered in connection with sales by
the Underwriter or any dealer. Republic has furnished or will furnish to the
Underwriter at least three
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original signed copies of the Registration Statement as originally filed and
of all amendments and supplements thereto, whether filed before or after the
Effective Date, at least three copies of all exhibits filed therewith and of
all consents and certificates of experts, and will deliver to the
Underwriter such number of conformed copies of the Registration Statement,
including financial statements and exhibits, and all amendments thereto, as
the Underwriter may reasonably request.
(e) Republic will comply with the Act, the Regulations, the
Exchange Act and the rules and regulations thereunder so as to permit the
continuance of sales of and dealings in the Shares for as long as may be
necessary to complete the distribution of the Shares as contemplated hereby.
(f) Republic will furnish such information and pay such filing
fees and other expenses as may be required, and otherwise cooperate in the
registration or qualification of the Shares, or exemption therefrom, for
offering and sale by the Underwriter and by dealers under the
securities or Blue Sky laws of such jurisdictions in which the Underwriter
determine to offer the Shares, after consultation with Republic, and will
file such consents to service of process or other documents necessary or
appropriate in order to effect such registration or qualification; provided,
however, that no such qualification shall be required in any jurisdiction
where, solely as a result thereof, Republic would be subject to taxation or
qualification as a foreign corporation doing business in such jurisdiction
where it is not now so qualified or to take any action which would subject it
to service of process in suits, other than those arising out of the offering
or sale of the Shares, in any jurisdiction where it is not now so subject.
Republic will, from time to time, prepare and file such statements and
reports as are or may be required to continue such qualification in effect
for so long a period as is required under the laws of such jurisdictions for
such offering and sale.
(g) Subject to Section 5(b) hereof, in case of any event
(occurring at any time within the period during which, in the opinion of
counsel for the Underwriter, a prospectus is required to be delivered under
the Act or the Regulations), as a result of which any Preliminary Prospectus
or the Prospectus, as then amended or supplemented, would contain, in the
opinion of
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counsel for the Underwriter, an untrue statement of a material fact, or omit
to state any material fact necessary in order to make the statements therein,
in light of the circumstances under which they were made, not misleading, or,
if it is necessary at any time to amend any Preliminary Prospectus or the
Prospectus to comply with the Act or the Regulations or any applicable state
securities or Blue Sky laws, Republic promptly will prepare and file with the
SEC, and any applicable state and foreign securities commission, an
amendment, supplement or document that will correct such statement or
omission or effect such compliance and will furnish to the several
Underwriter such number of copies of such amendments, supplements or
documents (in form and substance satisfactory to the Representative and
counsel for the Underwriter) as the Underwriter may reasonably request.
For purposes of this Section 5(g), Republic will provide such information to
the Underwriter, the Underwriter's counsel and counsel to Republic as
shall be necessary to enable such persons to consult with Republic with
respect to the need to amend or supplement the Registration Statement,
Preliminary Prospectus or Prospectus or file any document, and shall furnish
to the Underwriter and the Underwriter's counsel such further information
as each may from time to time reasonably request.
(h) Republic will make generally available to its security holders
not later than 45 days after the end of the period covered thereby, a
consolidated earnings statement of Republic (which need not be audited unless
required by the Act or the Regulations) that shall comply with Section 11(a)
of the Act and Rule 158 thereunder and cover a period of at least 12
consecutive months beginning not later than the first day of Republic's
fiscal quarter next following the Effective Date (or, if later, the effective
date of the Rule 462(b) Registration Statement).
(i) For a period of five years from the Effective Date, Republic
will deliver to the Underwriter: (i) a copy of each report or document,
including, without limitation, reports on Forms 8-K, 10-C, 10-K and 10-Q (or
such similar forms as may be designated by the SEC), registration statements
and any exhibits thereto, filed or furnished to the SEC or any securities
exchange or the NASD, on the date each such report or document is so filed or
furnished; (ii) as soon as practicable, copies of any reports or
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communications (financial or other) of Republic mailed to its security
holders; and (iii) every material press release in respect of Republic or its
affairs that is released or prepared by Republic.
(j) During the course of the distribution of the Shares, Republic
will not take, directly or indirectly, any action designed to, or that could
reasonably be expected to, cause or result in stabilization or manipulation
of the price of the Common Stock.
(k) Republic has caused each person listed on Schedule I hereto
to execute an agreement (a "Lock-up Agreement") in form and substance
satisfactory to the Underwriter and the Underwriter's counsel which
provides that for a period of 180 days from the date of the final Prospectus,
as amended or supplemented, such persons will not, without the prior written
consent of the Underwriter, directly or indirectly, sell, offer or
contract to sell or grant any option to purchase or otherwise dispose of any
shares of Common Stock (or any securities convertible into or exercisable or
exchangeable for any shares of Common Stock). Republic has delivered such
agreements to the Underwriter prior to the date of this Agreement.
Appropriate stop transfer instructions will be issued by Republic to the
transfer agent for the Common Stock, and a copy of such instructions will be
delivered to the Underwriter.
(l) For a period of 180 days after the Effective Date, Republic
will not, without the prior written consent of the Representative, offer,
sell, contract to sell or otherwise dispose of any Common Stock or any
securities convertible into or exercisable for any Common Stock or grant
options to purchase any Common Stock, except (i) the issuance of Common Stock
upon the exercise of currently outstanding options and warrants as described
in the Prospectus and (ii) the grant of options to purchase Common Stock
under Republic's currently outstanding stock option plans as described in the
Prospectus and the issuance of Common Stock upon the exercise thereof.
(m) For a period of five years from the Effective Date, Republic
will use all reasonable efforts to maintain the listing of the Common Stock
(including, without limitation, the
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Shares) on the NASDAQ National Market or on a national securities
exchange.
(n) Republic shall, at its sole cost and expense, supply and
deliver to the Underwriter and the Underwriter's counsel, within a
reasonable period from the Closing Date, transaction binders in such number
and in such form and content as the Representative reasonably request.
(o) Republic will use the net proceeds from the sale of the Shares
to be sold by it hereunder substantially in accordance with the description
set forth in the Prospectus.
6. Payment of Fees and Expenses.
(a) Whether or not the transactions contemplated by this Agreement
are consummated and regardless of the reason this Agreement is terminated,
Republic will pay or cause to be paid, and bear or cause to be borne, all
costs and expenses incident to the performance of the obligations of Republic
under this Agreement, including: (i) the fees and expenses of the
accountants and counsel for Republic incurred in the preparation of the
Registration Statement and any post-effective amendments thereto (including
financial statements and exhibits), Preliminary Prospectuses and the
Prospectus and any amendments or supplements thereto; (ii) printing and
mailing expenses associated with the Registration Statement and any
post-effective amendments thereto, any Preliminary Prospectus, the
Prospectus, this Agreement, the Selected Dealers Agreement and related
documents and the Preliminary Blue Sky Memorandum (and any supplement
thereto); (iii) the costs and expenses incident to the authentication,
issuance, sale and delivery of the Shares to the Underwriter; (iv) the fees,
expenses and all other costs of qualifying the Shares for sale under the
securities or Blue Sky laws of those states or foreign jurisdictions in which
the Shares are to be offered or sold, including the reasonable fees and
expenses of Underwriter's counsel, except such fees shall not exceed $5,000;
(v) the fees, expenses and other costs of, or incident to, securing any
review or approvals by or from the NASD; (vi) the filing fees of the SEC;
(vii) the cost of furnishing to the Underwriters copies of the Registration
Statement, Preliminary Prospectuses and
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Prospectuses as herein provided; (viii) Republic's travel expenses in
connection with meetings with the brokerage community and institutional
investors; (ix) the costs and expenses associated with settlement in same day
funds (including, but not limited to, interest or cost of funds expenses), if
desired by Republic; (x) any fees or costs payable to the NASDAQ National
Market as a result of the offering; (xi) the cost of printing certificates for
the Shares; (xii) the costs and charges of any transfer agent; (xiii) all
taxes, if any, on the issuance, delivery and transfer of the Shares sold by
Republic; and (xiv) all other costs and expenses reasonably incident to the
performance of Republic's obligations hereunder that are not otherwise
specifically provided for in this Section 6(a).
(b) Republic shall pay as due any state or foreign registration,
qualification and filing fees and any accountable out-of-pocket disbursements
in connection with such registration, qualification or filing in the states
and foreign jurisdictions in which the Underwriter determines to offer or
sell the Shares.
(c) On the Closing Date, Republic shall pay the Underwriter a
non-accountable expense allowance in the amount of $100,000.
(d) If (i) the Underwriter is willing to proceed with the
offering, and the transactions contemplated by this Agreement are not
consummated because Republic elects not to proceed with the offering for any
reason or (ii) the Underwriter terminates this Agreement pursuant to
Section 10(b) hereof, then Republic will reimburse the Underwriter for its
reasonable out-of-pocket expenses, including, without limitation, fees and
disbursements of counsel for the Underwriter, incurred in connection with
investigating, marketing and proposing to market the Shares or in
contemplation of performing their obligations hereunder, in an amount not to
exceed an additional $50,000.
7. Conditions of Underwriter's Obligations. The obligation of the
Underwriter to purchase and pay for the Firm Shares that it has agreed to
purchase hereunder on the Closing Date, and to purchase and pay for any
Optional Shares as to which it exercises its right to purchase under Section
4 on an Option Closing Date, is subject at the date hereof, the Closing Date
and any Option
-25-
Closing Date to the continuing accuracy and fulfillment of the
representations and warranties of Republic, to the performance by Republic of
its covenants and obligations hereunder, and to the following additional
conditions:
(a) If required by the Regulations, the Prospectus shall have been
filed with the SEC pursuant to Rule 424(b) of the Regulations within the
applicable time period prescribed for such filing by the Regulations. On or
prior to the Closing Date or any Option Closing Date, as the case may be, no
stop order or other order preventing or suspending the effectiveness of the
Registration Statement or the sale of any of the Shares shall have been
issued under the Act or any state or foreign securities law, and no
proceedings for that purpose shall have been initiated or shall be pending
or, to the Underwriter's knowledge or the knowledge of Republic, shall be
contemplated by the SEC or by any authority in any jurisdiction designated by
the Underwriter pursuant to Section 5(f) hereof. Any request on the part
of the SEC or any state or foreign securities authority for additional
information shall have been complied with to the reasonable satisfaction of
counsel for the Underwriter.
(b) All corporate proceedings and other matters incident to the
authorization, form and validity of this Agreement, the Shares and the form
of the Registration Statement and the Prospectus, and all other legal matters
relating to this Agreement and the transactions contemplated hereby shall be
satisfactory in all material respects to counsel for the Underwriters.
Republic shall have furnished to such counsel all documents and information
that they may have reasonably requested to enable them to pass upon such
matters. The Underwriter shall have received from the Underwriter's
counsel, Xxxxxxx & Xxx, an opinion, dated as of the Closing Date and
any Option Closing Date, as the case may be, and addressed to the
Underwriter, which opinion shall be satisfactory in all respects to the
Underwriter.
(c) The Underwriter shall have received a copy of an executed
Lock-up Agreement from each person listed on Schedule I hereto.
(d) The Underwriter shall have received at or prior
-26-
to the Closing Date from the Underwriter's counsel a memorandum or summary,
in form and substance satisfactory to the Underwriter, with respect to the
qualification for offering and sale by the Underwriter of the Shares under
the securities or Blue Sky laws of such jurisdictions designated by the
Underwriter pursuant to Section 5(f) hereof.
(e) On the Closing Date and any Option Closing Date, there shall
have been delivered to the Underwriter signed opinions of Xxxxxxx Gadon &
Xxxxx, P.C., counsel for Republic, dated as of each such date and addressed
to the Underwriter to the effect set forth in Exhibit A hereto or to such
effect as is otherwise reasonably satisfactory to the Underwriter.
(f) At the Closing Date and any Option Closing Date: (i) the
Registration Statement and any post-effective amendment thereto and the
Prospectus and any amendments or supplements thereto shall contain all
statements that are required to be stated therein in accordance with the Act
and the Regulations and in all material respects shall conform to the
requirements of the Act and the Regulations, and neither the Registration
Statement nor any post-effective amendment thereto nor the Prospectus and any
amendments or supplements thereto shall contain any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading; (ii)
since the respective dates as of which information is given in the
Registration Statement and any post-effective amendment thereto and the
Prospectus and any amendments or supplements thereto, except as otherwise
stated therein, there shall have been no material adverse change in the
Business Conditions of Republic and the Subsidiaries from that set forth
therein, whether or not arising in the ordinary course of business; (iii)
since the respective dates as of which information is given in the
Registration Statement and the Prospectus or any amendment or supplement
thereto, there shall have been no event or transaction, contract or agreement
entered into by Republic or either of its Subsidiaries other than in the
ordinary course of business and as set forth in the Registration Statement or
Prospectus, that has not been, but would be required to be, set forth in the
Registration Statement or Prospectus; (iv) since the respective dates as of
which information is given in the Registration Statement and any
post-effective amendment
-27-
thereto and the Prospectus and any amendments or supplements thereto, there
shall have been no material adverse change, loss, reduction, termination or
non-renewal of any contract to which Republic or either of its Subsidiaries
is a party, that has not been, but would be required to be set forth in the
Registration Statement or Prospectus; and (v) no action, suit or proceeding
at law or in equity shall be pending or threatened against Republic or either
of its Subsidiaries that would be required to be set forth in the Prospectus,
other than as set forth therein, and no proceedings shall be pending or
threatened against or directly affecting Republic or either of its
Subsidiaries before or by any federal, state or other commission, board or
administrative agency wherein an unfavorable decision, ruling or finding
would materially adversely affect the Business Conditions of Republic and the
Subsidiaries taken as a whole.
(g) The Underwriter shall have received at the Closing Date and
any Option Closing Date certificates of the Chief Executive Officer and the
Chief Financial Officer of Republic dated as of the date of the Closing Date
or Option Closing Date, as the case may be, and addressed to the
Underwriter, to the effect that (i) the representations and warranties of
Republic in this Agreement are true and correct, as if made at and as of the
Closing Date or the Option Closing Date, as the case may be, and that
Republic has complied with all the agreements, fulfilled all the covenants
and satisfied all the conditions on its part to be performed, fulfilled or
satisfied at or prior to the Closing Date or the Option Closing Date, as the
case may be, and (ii) the signers of the certificate have carefully examined
the Registration Statement and the Prospectus and any amendments or
supplements thereto, and the conditions set forth in Section 7(g) hereof have
been satisfied.
(h) At the time this Agreement is executed and at the Closing
Date and any Option Closing Date, the Underwriter shall have received a
letter, dated the date of delivery thereof, addressed to the Underwriter, in
form and substance satisfactory to the Underwriter in all respects (including,
without limitation, the non-material nature of the changes or decreases, if
any, referred to in clause (iii) below) from KPMG Peat Marwick, LLP.
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(i) confirming they are independent certified public accountants
within the meaning of the Act and the Regulations, and stating that the
section of the Registration Statement under the caption "Experts" is correct
insofar as it relates to them; (ii) stating that, in their opinion, the
consolidated financial statements, schedules and notes of Republic audited by
them and included in the Registration Statement comply as to form in all
material respects with the applicable accounting requirements of the Act and
the Regulations; (iii) stating that, on the basis of specified procedures,
which included the procedures as specified by the American Institute of
Certified Public Accountants for a review of interim financial information,
as described in SAS No. 71, Interim Financial Information (with respect to
the latest unaudited consolidated financial statements of Republic included
in the Registration Statement), a reading of the latest available unaudited
interim consolidated financial statements of Republic (with an indication of
the date of the latest available unaudited interim financial statements), a
reading of the minutes of the meetings of the stockholders and the Boards of
Directors of Republic and the Subsidiaries, and audit and compensation
committees of such Boards, if any, and inquiries to certain officers and
other employees of Republic and the Subsidiaries responsible for operational,
financial and accounting matters and other specified procedures and
inquiries, nothing has come to their attention that would cause them to
believe that (A) the unaudited consolidated financial statements of Republic
and the Subsidiaries included in the Registration Statement, (I) do not
comply in form and all material respects with the applicable accounting
requirements of the Act and the Regulations, or (II) any material
modifications should be made to such unaudited financial statements for them
to be in conformity with generally accepted accounting principles; (B) at a
specified date not more than five business days prior to the date of such
letter, there was any change in the capital stock or debt of Republic or any
decrease in net current assets, total assets or stockholders' equity of
Republic as compared with the amounts shown in the September 30, 1997
unaudited balance sheet of Republic included in the Registration Statement,
or that for the periods from October 1, 1997 to the date of the latest
available unaudited financial statements of Republic and to a specified date
not more than five days prior to the date of the letter, there were any
decreases, as compared to the corresponding periods in the prior
-29-
year, in operating income or total or per share amounts of net income, except
in all instances for changes, decreases or increases that the Registration
Statement discloses have occurred or may occur and except for such other
changes, decreases or increases which the Underwriter shall in its sole
discretion accept; or (C) the unaudited pro forma financial statements
included in the Registration Statement do not comply as to form in all
material respects with the applicable accounting requirements of Rule 11-02
of Regulation S-X under the Act and that the pro forma adjustments have not
been properly applied to the historical amounts in the compilation of those
statements; and (iv) stating that they have compared specific dollar amounts
(or percentages derived from such dollar amounts), numbers of shares and
other numerical data and financial information set forth in the Registration
Statement that have been specified by the Representative prior to the date of
this Agreement (in each case to the extent that such dollar amounts,
percentages and other information is derived from the general accounting
records subject to the internal controls of Republic's or either of its
Subsidiaries' accounting systems, or has been derived directly from such
accounting records by analysis or comparison or has been derived from other
records and analyses maintained or prepared by Republic or either of its
Subsidiaries) with the results obtained from the application of readings,
inquiries and other appropriate procedures set forth in the letter, and found
them to be in agreement. All financial statements and schedules included in
material incorporated by reference into the Prospectus shall be deemed
included in the Registration Statement for purposes of this subsection.
(i) There shall have been duly tendered to the Underwriter for
the respective accounts of the Underwriters certificates representing all of
the Shares to be purchased by the Underwriters on the Closing Date or Option
Closing Date, as the case may be.
(j) All corporate and other proceedings and other matters incident
to the authorization, form and validity of this Agreement and the form of the
Registration Statement and Prospectus and all other legal matters related to
this Agreement and the transactions contemplated hereby shall be reasonably
satisfactory in all respects to counsel to the Underwriter. Republic shall
have furnished to such counsel all documents and information that they shall
have reasonably requested to enable them to pass upon such matters.
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(k) At the Closing Date and any Option Closing Date, the
Underwriter shall have been furnished such additional documents,
information and certificates as they shall have reasonably requested.
All such opinions, certificates, letters and documents shall be in
compliance with the provisions hereof only if they are reasonably
satisfactory in form and substance to the Underwriter and the
Underwriter's counsel. Republic shall furnish the Underwriter with such
conformed copies of such opinions, certificates, letters and other documents
as they shall reasonably request. If any condition to the Underwriter's
obligations hereunder to be fulfilled prior to or at the Closing Date or any
Option Closing Date, as the case may be, is not fulfilled, the Underwriter may
terminate this Agreement with respect to the Closing Date or such Option
Closing Date, as applicable, or, if it so elects, waive any such conditions
which have not been fulfilled or extend the time for their fulfillment Any
such termination shall be without liability of the Underwriter to Republic.
8. Indemnification and Contribution.
(a) Republic shall indemnify and hold harmless the Underwriter,
and each person, if any, who controls the Underwriter within the meaning of
the Act, against any and all loss, liability, claim, damage and expense
whatsoever, including, but not limited to, any and all reasonable expenses
incurred in investigating, preparing or defending against any litigation,
commenced or threatened, or any claim whatsoever or in connection with any
investigation or inquiry of, or action or proceeding that may be brought
against, the respective indemnified parties, arising out of or based upon any
breach of Republic's representations and warranties made in this Agreement or
any untrue statements or alleged untrue statements of material fact contained
in any Preliminary Prospectus, the Registration Statement or the Prospectus,
any application or other document (in this Section 8 collectively called
"application") filed in any jurisdiction in order to qualify all or any part
of the Shares under the securities laws thereof or filed with the SEC or the
NASD, or the omission or alleged omission from any of the foregoing of a
material fact required to be stated therein or necessary to make the
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statements therein not misleading; provided, however, that the foregoing
indemnity shall not apply in respect of any statement or omission made in
reliance upon and in conformity with written information furnished to
Republic by the Underwriter expressly for use in any Preliminary Prospectus,
the Registration Statement or Prospectus, or any amendment or supplement
thereto, or in any application or in any communication to the SEC, as the
case may be; and further provided, however, that the indemnification
contained in this Section 8(a) with respect to any Preliminary Prospectus
shall not inure to the benefit of the Underwriter (or to the benefit of any
person controlling the Underwriter) on account of any such loss, claim,
liability or expense arising from the sale of the Shares by the Underwriter
to any person if a copy of the Prospectus shall not have been delivered or
sent to such person within the time required by the Act and the Regulations,
and the untrue statement or alleged untrue statement or omission or alleged
omission of a material fact contained in such Preliminary Prospectus was
corrected in the Prospectus, provided that Republic has delivered the
Prospectus to the Underwriter in requisite quantity on a timely basis to
permit such delivery or sending. The obligations of Republic under this
Section 8(a) will be in addition to any liability Republic may otherwise
have.
(b) The Underwriter, shall indemnify and hold harmless Republic,
each of the directors of Republic, each of the officers of Republic who shall
have signed the Registration Statement, and each other person, if any, who
controls Republic within the meaning of the Act to the same extent as the
foregoing indemnities from Republic to the Underwriter, but only with respect
to any and all loss, liability, claim, damage or expense resulting from
statements or omissions, or alleged statements or omissions, if any,
made in any Preliminary Prospectus, Registration Statement or
Prospectus or any amendment or supplement thereof or any application in
reliance upon, and in conformity with written information furnished to
Republic by the Underwriter expressly for use in any Preliminary Prospectus,
the Registration Statement or Prospectus or any amendment or supplement
thereof or any application, as the case may be. The obligations of the
Underwriter under this Section 8(b) will be in addition to any liability
which the Underwriter may otherwise have.
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(c) If any action, inquiry, investigation or proceeding is brought
against any person in respect of which indemnification may be sought pursuant
to Section 8(a) or (b) hereof, such person (hereinafter called the
"indemnified party") shall, promptly after notification of, or receipt of
service of process for, such action, inquiry, investigation or proceeding,
notify in writing the party or parties against whom indemnification is to be
sought (hereinafter called the "indemnifying party") of the institution of
such action, inquiry, investigation or proceeding. The indemnifying party,
upon the request of the indemnified party, shall assume the defense of such
action, inquiry, investigation or proceeding, including, without limitation,
the employment of counsel (reasonably satisfactory to such indemnified party)
and payment of expenses. No indemnification provided for in this Section 8
shall be available to any indemnified party who shall fail to give such
notice if the indemnifying party does not have knowledge of such action,
inquiry, investigation or proceeding to the extent that such indemnifying
party has been materially prejudiced by the failure to give such notice, but
the omission to so notify the indemnifying party shall not relieve the
indemnifying party otherwise than under this Section 8. Such indemnified
party shall have the right to employ its or their own counsel in any such
case, but the fees and expenses of such counsel shall be at the expense such
indemnified party unless the employment of such counsel shall have been
authorized in writing by the indemnifying party in connection with the
defense of such action or if the indemnifying party shall not have employed
counsel reasonably satisfactory to the indemnified party or if such
indemnified party or parties shall have been advised by counsel that there
may be a conflict between the positions of the indemnifying party or parties
and of the indemnified party or parties or that there may be legal defenses
available to such indemnified party or parties different from or in addition
to those available to the indemnifying party or parties, in any of which
events the indemnified party or parties shall be entitled to select counsel
to conduct the defense to the extent determined by such counsel to be
necessary to protect the interests of the indemnified party or parties, and
the reasonable fees and expenses of such counsel shall be borne by the
indemnifying party. The indemnifying party shall be responsible for the fees
and disbursements of only one such counsel so engaged by the indemnified
party or parties. Expenses covered by the indemnification in this Section 8
shall be paid by the indemnifying party as they are incurred by the
indemnified party. No indemnifying party
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shall, without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened action in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party unless such settlement includes an
unconditional release of such indemnified party from all liability on any
claims that are the subject matter of such action. Anything in this Section
8 to the contrary notwithstanding, an indemnifying party shall not be liable
for any settlement of a claim effected without its written consent, which
consent shall not be unreasonably withheld.
(d) If the indemnification provided for in this Section 8 is
unavailable or insufficient to hold harmless an indemnified party under
Section 8(a) or (b) hereof in respect of any losses, liabilities, claims,
damages or expenses (or actions, inquiries, investigations or proceedings in
respect thereof) referred to therein, except by reason of the failure to give
notice as required in Section 8(c) hereof (provided that the indemnifying
party does not have knowledge of the action, inquiry, investigation or
proceeding and to the extent such party has been materially prejudiced by the
failure to give such notice), then each indemnifying party shall contribute
to the amount paid or payable by such indemnified party as a result of such
losses, liabilities, claims, damages or expenses (or actions, inquiries,
investigations or proceedings in respect thereof in such proportion as is
appropriate to reflect the relative benefits received by Republic on the one
hand and the Underwriter on the other from the offering of the Shares. If,
however, the allocation provided by the immediately preceding sentence is not
permitted by applicable law, then each indemnifying party shall contribute to
such amount paid or payable by such indemnified party in such proportion as
is appropriate to reflect not only such relative benefits but also the
relative fault of Republic on the one hand and the Underwriter on the other
in connection with the statements or omissions which resulted in such losses,
liabilities, claims or expenses (or actions, inquiries, investigations or
proceedings in respect thereof), as well as any other relevant equitable
considerations. The relative benefits received by Republic 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 Republic bears to the total underwriting discount 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 Republic on
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the one hand or the Underwriter on the other hand and the parties' relative
intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
Republic and the Underwriter agree that it would not be just and
equitable if contributions to this Section 8(d) were determined by pro rata
allocation or by any other method of allocation that does not take account of
the equitable considerations referred to above in this Section 8(d). The
amount paid or payable by an indemnified party as a result of the losses,
liabilities, claims, damages or expenses (or actions, inquiries,
investigations or proceedings in respect thereof) referred to above in this
Section 8(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 Section 8(d), 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.
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9. Representations and Agreements to Survive Delivery. Except as the
context otherwise requires, all representations, warranties and agreements
contained in this Agreement shall be deemed to be representations, warranties
and agreements at the Closing Date and any Option Closing Date. All such
representations, warranties and agreements of the Underwriter and Republic,
including, without limitation, the indemnity and contribution agreements
contained in Section 8 hereof and the agreements contained in Sections 6, 9,
10 and 13 hereof, shall remain operative and in full force and effect
regardless of any investigation made by or on behalf of the Underwriter or
any controlling person, and shall survive delivery of the Shares and
termination of this Agreement, whether before or after the Closing Date or
any Option Closing Date.
10. Effective Date of This Agreement and Termination Hereof.
(a) This Agreement shall become effective at 10:00
a.m.,Philadelphia, Pennsylvania time, on the first business day following the
Effective Date or at the time of the public offering by the Underwriter of
the Shares, whichever is earlier, except that the provisions of Sections 6,
8, 9, 10 and 13 hereof shall be effective upon execution hereof. The time of
the public offering, for the purpose of this Section 10, shall mean the time
when any of the Shares are first released by the Underwriter for offering by
dealers. The Underwriter and Republic may prevent the provisions of this
Agreement (other than those contained in Sections 6, 8, 9, 10 and 13) hereof
from becoming effective without liability of any party to any other party,
except as noted below, by giving the notice indicated in Section 10(c) hereof
before the time the other provisions of this Agreement become effective.
(b) The Underwriter shall have the right to terminate this
Agreement at any time prior to the Closing Date or any Option Closing Date as
provided in Sections 7 and 11 hereof or if any of the following have
occurred: (i) since the respective dates as of which information is given in
the Registration Statement and the Prospectus, any material adverse change or
any development involving a prospective material adverse change in or
affecting the Business Conditions of
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Republic or the Subsidiaries, whether or not arising in the ordinary course
of business, that would, in the Representative's opinion, make the offering
or delivery of the Shares impracticable; (ii) any outbreak of
hostilities or other national or international calamity or crisis or change
in economic, political or financial market conditions if the effect on the
financial markets of the United States of such outbreak, calamity, crisis or
change would, in the Underwriter's opinion, make the offering or delivery
of the Shares impracticable; (iii) any suspension or limitation of trading
generally in securities on the New York Stock Exchange, the American Stock
Exchange, the NASDAQ Stock Market or the over-the-counter market or any
setting of minimum prices for trading or the promulgation of any federal or
state statute, regulation, rule or order of any court or other governmental
authority that in the Underwriter's opinion materially and adversely
affects trading on such exchange or the over-the-counter market; (iv) the
enactment, publication, decree or other promulgation of any federal or state
statute, regulation, rule or order of any court or other governmental
authority which in the Underwriter's opinion materially and adversely
affects or will materially or adversely affect the business or operations of
Republic or the Subsidiaries; (v) declaration of a banking moratorium by
either United States, New York or Pennsylvania authorities; (vi) the taking
of any action by any federal, state or local government or agency in respect
of its monetary or fiscal affairs that in the Underwriter's opinion has a
material adverse effect on the securities markets in the United States; or
(vii) trading in any securities of Republic shall have been suspended or
halted by NASD or the SEC.
(c) If the Underwriter elects to prevent this Agreement from
becoming effective or to terminate this Agreement as provided in this Section
10, the Representative shall notify Republic hereof promptly by telephone,
telex, telegraph, telegram or facsimile, confirmed by letter.
11. [Intentionally Omitted].
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12. Information Furnished by Underwriter. The statement set forth on
the last paragraph at the bottom of the cover page of the Prospectus
regarding the terms of the Offering by the Underwriter, the legend on the
inside cover page regarding stabilization, the identity of the Underwriter
set forth in the first paragraph under the heading "Underwriting" and the
concession and reallowance figures appearing in the second paragraph under
the caption "Underwriting," constitute the only written information furnished
by reference or on behalf of the Underwriter referred to in Sections 1(b) and
8 hereof.
13. Notice. All communications hereunder, except as herein otherwise
specifically provided, shall be in writing and, if sent to the Underwriter,
shall be mailed, delivered, telexed, telegrammed, telegraphed or telecopied
and confirmed to Xxxxxx Xxxxxxxxxx Xxxxx Inc., 0000 Xxxxxx Xxxxxx,
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000, Attention: Xx. Xxxxxx X. Xxxxx, with a copy
to Xxxxxxx & Xxx, 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxxxx 00000,
Attention: Xxxxxxx X. Xxxxxxx, Esquire; and if sent to Republic, shall be
mailed, delivered, telexed, telegrammed, telegraphed or telecopied and
confirmed to Republic Financial Services Corporation, 000 Xxxxxxxxxx Xxxxxx,
Xxxxxxx, Xxxxxxxxxxxx 00000; Attention: Xxxxxx X. Xxxxxx, with a copy to Xxxxxxx
Gadon & Xxxxx, P.C., 0000 Xxxxxx Xxxxxx, 0xx Xxxxx, Xxxxxxxxxxxx, Xxxxxxxxxxxx
00000, Attention: Xxxxxxxxxxx Xxxxxxxx, Esquire.
14. Parties. This Agreement shall inure solely to the benefit of, and
shall be binding upon, the Underwriter, Republic and the controlling
persons, directors and officers thereof, and their respective successors,
assigns, heirs and legal representatives, and no other person shall have or
be construed to have any legal or equitable right, remedy or claim under or
in respect of or by virtue of this Agreement or any provision herein
contained. The terms "successors" and "assigns" shall not include any
purchaser of the Shares merely because of such purchase.
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15. Definition of Business Day. For purposes of this Agreement,
"business day" means any day on which the NASDAQ Stock Market is opened for
trading.
16. Counterparts. This Agreement may be executed in one or more
counterparts and all such counterparts will constitute one and the same
instrument.
17. Construction. This Agreement shall be governed by and construed in
accordance with the laws of the Commonwealth of Pennsylvania applicable to
agreements made and performed entirely within such Commonwealth.
If the foregoing correctly sets forth your understanding of our
agreement, please sign and return to Republic the enclosed duplicate hereof,
whereupon it will become a binding agreement in accordance with its terms.
Very truly yours,
REPUBLIC FIRST BANCORP, INC.
By:
---------------------------
Xxxx X. Xxxxxxxx, President
and Chief Executive Officer
The foregoing Agreement is hereby confirmed and accepted as of the date first
above written.
XXXXXX XXXXXXXXXX XXXXX INC.
As Representatives of the Several Underwriters named in Schedule I hereto
By: XXXXXX XXXXXXXXXX XXXXX INC.
By:
-----------------------------
Xxxxxx X. Xxxxx
First Vice President
SCHEDULE I
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SCHEDULE I
Persons Who Are to Deliver Lock-Up Agreements
Lock-Up Agreements are to be delivered by the following persons and
entities immediately prior to the time the SEC declares the Registration
Statement effective:
Xxxxxxx Xxxxxxxx
Xxxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxx
Xxxxxxx X. Xxxxxxx
Xxxx X. X'Xxxxx
Xxxxxxx Xxxxxxxx
Xxxxxx Xxxxxxxx
Xxxxx X. Xxxxxxx, Esq.
Xxxxxxx X. Xxxx
Xxxx Xxxxx
Xxxx X. Xxxxxxx
Xxxx Xxxxxxxx
Xxxxxx X. Xxxxx
Xxxx X. Xxxxxxxx
Xxxxxx Xxxxxxxxx, Esq.
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