EXHIBIT 1
800,000 Shares
Progress Financial Corporation
Common Stock
(par value $1.00 per share)
UNDERWRITING AGREEMENT
May __, 0000
XXXXXXX X'XXXXX & PARTNERS, L.P.
As Representative of the several Underwriters
named in Schedule I attached hereto
0 Xxxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Progress Financial Corporation, a Delaware corporation (the "Company"),
proposes, subject to the terms and conditions stated herein, to issue and sell
to the several underwriters named in Schedule I hereto (the "Underwriters"), for
whom you are acting as the representative (the "Representative"), an aggregate
of 800,000 shares (the "Firm Shares") and, at the election of the Underwriter,
up to 80,000 additional shares (the "Optional Shares") of common stock, par
value $1.00 per share (the "Common Stock"), of the Company (the Firm Shares and
the Optional Shares which the Underwriters elect to purchase pursuant to Section
2 hereof being collectively called the "Shares").
1. The Company represents and warrants to, and agrees with, each
Underwriter that:
a. A registration statement on Form S-2 (File No. 333-50503)
in respect of the Shares has been filed with the Securities and Exchange
Commission (the "Commission"); such registration statement and any
post-effective amendment thereto, each in the form heretofore delivered or to be
delivered to the Representative, excluding exhibits to such registration
statement, but including all documents incorporated by reference in the
prospectus contained therein have been declared effective by the Commission in
such form; no other document with respect to such registration statement or
document incorporated by reference therein has heretofore been filed or
transmitted for filing with the Commission; and no stop order suspending the
effectiveness of such registration statement has been issued and no proceeding
for that purpose has been initiated or threatened by the Commission (any
preliminary prospectus included in such registration statement or filed with the
Commission pursuant to Rule 424(a) of the rules and regulations of the
Commission under the Securities Act of 1933, as amended (the "Act"), being
hereinafter called a "Preliminary Prospectus"; the various parts of such
registration statement, including all exhibits thereto and the
documents incorporated by reference in the prospectus contained in the
registration statement at the time such part of the registration statement
becomes effective, each as amended at the time such part of the registration
statement becomes effective, being hereinafter collectively called the
"Registration Statement"; the prospectus relating to the Shares, in the form in
which it has most recently been filed, or transmitted for filing, with the
Commission on or prior to the date of this Agreement, being hereinafter called
the "Prospectus"; any reference herein to any Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include the documents incorporated by
reference therein pursuant to Item 12 of Form S-2 under the Act, as of the date
of such Preliminary Prospectus or Prospectus, as the case may be; any reference
to any amendment or supplement to any Preliminary Prospectus or the Prospectus
shall be deemed to refer to and include any documents filed after the date of
such Preliminary Prospectus or Prospectus, as the case may be, under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and
incorporated by reference in such Preliminary Prospectus or Prospectus, as the
case may be; any reference to any amendment to the Registration Statement shall
be deemed to refer to and include any annual report of the Company filed
pursuant to Section 13(a) or 15(d) of the Exchange Act after the effective date
of the Registration Statement that is incorporated by reference in the
Registration Statement; and any reference to the Prospectus as amended or
supplemented shall be deemed to refer to the Prospectus as amended or
supplemented in relation to the applicable Shares in the form in which it is
filed with the Commission pursuant to Rule 424(b) under the Act in accordance
with Section 5(a) hereof, including any documents incorporated by reference
therein as of the date of such filing);
b. No order preventing or suspending the use of any
Preliminary Prospectus has been issued by the Commission, and each Preliminary
Prospectus, at the time of filing thereof, conformed in all material respects to
the requirements of the Act and the rules and regulations of the Commission
thereunder, and did not contain an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; provided, however, that this representation and warranty
shall not apply to any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Company by any
Underwriter through the Representative expressly for use therein, it being
acknowledged that the only information so furnished by the Representative is as
described in Section 8(b) hereof;
c. The documents incorporated by reference in the Prospectus,
when they became effective or were filed with the Commission, as the case may
be, conformed in all material respects to the requirements of the Act or the
Exchange Act, as applicable, and the rules and regulations of the Commission
thereunder, and none of such documents contained an untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading; and any further
documents so filed and incorporated by reference in the Prospectus or any
further amendment or supplement thereto, when such documents become effective or
are filed with the Commission, as the case may be, will conform in all material
respects to the requirements of the Act or the Exchange Act, as applicable, and
the rules and regulations of the Commission thereunder and will not contain an
untrue statement of a
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material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading in light of the
circumstances in which they are made;
d. The Registration Statement and the Prospectus conform, and
any further amendments or supplements to the Registration Statement or the
Prospectus will conform, in all material respects to the requirements of the Act
and the rules and regulations of the Commission thereunder including, without
limitation, compliance with the safe harbor provisions of Rule 175 under the Act
pertaining to forward-looking statements, and do not and will not, as of the
applicable effective date as to the Registration Statement and any amendment
thereto and as of the applicable filing date and at such Time of Delivery (as
hereinafter defined) as to the Prospectus and any amendment or supplement
thereto, contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading; provided, however, that this representation and warranty
shall not apply to any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Company by any
Underwriter through the Representative expressly for use therein, it being
acknowledged that the only information so furnished by the Representative is as
described in Section 8(b) hereof;
e. Since the respective dates as of which information is given
in the Registration Statement and the Prospectus, except as otherwise stated
therein, (i) there has been no material adverse change, or any development which
might reasonably be expected to result in a material adverse change, in or
affecting the condition, financial or otherwise, business, management,
stockholders' equity, results of operations or prospects of the Company and its
consolidated subsidiaries considered as one enterprise, (ii) there have been no
material transactions entered into by the Company or any of its consolidated
subsidiaries other than those in the ordinary course of business and consistent
with past practice, (iii) neither the Company nor any of its consolidated
subsidiaries has sustained since the date of the last audited financial
statements included or incorporated by reference in the Prospectus any material
loss or interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor dispute or
court or governmental action, order or decree, otherwise than as set forth or
contemplated in the Prospectus, and (iv) except for regular quarterly dividends
on the Common Stock, there has been no dividend or distribution of any kind
declared, paid or made by the Company on any class of its capital stock;
f. Each of (i) the Company, (ii) its significant subsidiaries
as such term is defined in Rule 1-02 of Regulation S-X of the rules and
regulations of the Commission thereunder and (iii) its subsidiary that is a
depository institution (each of (ii) and (iii), a "Significant Subsidiary") has
been duly incorporated and is an existing corporation in good standing under the
laws of its jurisdiction of incorporation, with power and authority (corporate
and other) to own, lease and operate its properties and conduct its business as
described in the Prospectus; and is duly qualified as a foreign corporation to
transact business and is in good standing in each jurisdiction in which its
ownership or leasing of properties or the conduct of its business requires such
qualification, except where the failure to be so qualified, considering all such
cases in the aggregate, does not involve a
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material risk to the condition, financial or otherwise, business, management,
stockholders' equity, results of operations or prospects of the Company and its
consolidated subsidiaries considered as one enterprise;
g. The authorized, issued and outstanding Common Stock of the
Company is as set forth in the Prospectus, except for subsequent issuances, if
any, pursuant to reservations or agreements referred to therein; and the shares
of issued and outstanding Common Stock set forth therein have been duly and
validly authorized and issued and are fully paid and non-assessable and conform
in all material respects to the description of the Common Stock contained in the
Prospectus; and all of the issued shares of capital stock of each of the
Company's Significant Subsidiaries have been duly and validly authorized and
issued and are fully paid and non-assessable and are owned directly or
indirectly by the Company, free and clear of all liens, encumbrances, equities
or claims;
h. The Shares have been duly and validly authorized and, when
issued and delivered against payment therefor as provided herein, will be duly
and validly issued and fully paid and non-assessable and will conform in all
material respects to the description of the Common Stock contained in the
Prospectus; and the holders of outstanding capital stock of the Company are not
entitled to preemptive or other rights afforded by the Company to subscribe for
the Shares;
i. Neither the Company nor any of its consolidated
subsidiaries is in violation of its charter or by-laws or in default in the
performance or observance of any obligation, agreement, covenant or condition
contained in any material contract, indenture, mortgage, loan agreement, note,
lease or other instrument to which it is a party or by which it or any of them
may be bound; and the execution and delivery of 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 Certificate of
Incorporation or By-laws of the Company or any material bond, debenture, note or
other evidence of indebtedness or any material contract, indenture, mortgage,
loan agreement, lease or other instrument to which the Company or any of its
consolidated subsidiaries is a party or by which it or any of them may be bound,
or any law, administrative regulation or court decree; and no consent, approval,
authorization, order, registration or qualification of or with any such court or
governmental agency or body is required for the issuance and sale of the Shares
or the consummation by the Company of the transactions contemplated by this
Agreement, except the registration under the Act of the Shares and such
consents, approvals, authorizations, registrations or qualifications as may be
required under state securities or Blue Sky laws in connection with the purchase
and distribution of the Shares by the Representative;
j. There is no action, suit or proceeding before or by any
court or governmental agency or body, domestic or foreign, now pending, or, to
the knowledge of the Company, threatened against or affecting the Company or any
of its consolidated subsidiaries, which is required to be disclosed in the
Registration Statement and is not so disclosed or which might reasonably be
expected to result in any material adverse change in or affecting the condition,
financial or otherwise, business, management, stockholders' equity, results of
operations or prospects of the Company and its consolidated subsidiaries
considered as one enterprise, or might reasonably be expected to
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materially adversely affect the properties or assets thereof or might materially
and adversely affect the consummation of transactions contemplated by this
Agreement; all pending legal or governmental proceedings to which the Company or
any consolidated subsidiary is a party or of which any of their property is the
subject which are not described in the Registration Statement, including
ordinary routine litigation incidental to the business, are, considered in the
aggregate, not material; and there are no contracts or documents of the Company
or any of its consolidated subsidiaries which would be required to be filed as
exhibits to the Registration Statement by the Act or by the rules and
regulations of the Commission thereunder which have not been filed as exhibits
to the Registration Statement;
k. The financial statements of the Company and its
subsidiaries set forth or incorporated by reference in the Registration
Statement and Prospectus fairly present the financial condition of the Company
and its subsidiaries as of the dates indicated and the results of operations,
changes in shareholders' equity and cash flows for the periods therein specified
in conformity with generally accepted accounting principles consistently applied
throughout the periods involved (except as otherwise stated therein);
l. The Company is a savings and loan holding company
registered under the Home Owner's Loan Act of 1933, as amended; and the Company
and its subsidiaries are in compliance with, and conduct their respective
businesses in conformity with, all applicable laws and governmental regulations
in all material respects;
m. There are no contracts, agreements or understandings
between the Company and any person granting such person the right to require the
Company to file a registration statement under the Act with respect to any
securities of the Company owned or to be owned by such person or to require the
Company to include such securities in the securities registered pursuant to the
Registration Statement or in any securities being registered pursuant to any
other registration statement filed by the Company under the Act;
n. The deposit accounts of each of the Company's subsidiaries
that are depository institutions are insured by the Federal Deposit Insurance
Corporation to the fullest extent provided by law;
o. To the knowledge of the Company, neither the Company nor
any of its subsidiaries has made any payment of funds prohibited by law, and no
funds have been set aside to be used for any payment prohibited by law;
p. The Company and its subsidiaries are in compliance in all
material respects with the applicable financial recordkeeping and reporting
requirements of the Currency and Foreign Reporting Act of 1970, as amended, and
the rules and regulations thereunder;
q. The Common Stock of the Company is quoted on the NASDAQ
Stock Market, National Market System ("NASDAQ");
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r. Coopers & Xxxxxxx L.L.P., who have certified certain
financial statements of the Company and its subsidiaries, are independent public
accountants as required by the Act and the rules and regulations of the
Commission thereunder;
s. The execution, delivery and performance of this Agreement
and the consummation of the transactions contemplated herein do not and will not
trigger any action under the Rights Agreement, dated as of ____________, 19___,
between the Company and ________________, as Rights Agent; and
t. [Neither the Company nor any of its subsidiaries does
business with the government of Cuba or with any person or affiliate located in
Cuba within the meaning of Section 517.075, Florida Statutes.]
2. Subject to the terms and conditions herein set forth, (a) the
Company agrees to sell to each Underwriter, and each Underwriter agrees, to
purchase from the Company, at a purchase price per share of $_____, the number
of Firm Shares set forth opposite such Underwriter's name in Schedule I hereto
(b) in the event and to the extent that Underwriter, acting severally and not
jointly, shall exercise the election to purchase Optional Shares as provided
below, the Company agrees to issue and sell to the Underwriters, and the
Underwriters agree, to purchase from the Company, at the purchase price per
share set forth in clause (a) of this Section 2, the Optional Shares as to which
such election shall have been exercised
The Company hereby grants to the several Underwriters the right to
purchase, severally and not jointly, at their election up to 80,000 Optional
Shares, at the purchase price per share set forth in the paragraph above, for
the sole purpose of covering overallotments in the sale of the Firm Shares. Any
such election to purchase Optional Shares may be exercised only by written
notice from the Representative to the Company, given within a period of 30
calendar days after the date of this Agreement, setting forth the aggregate
number of Optional Shares to be purchased and the date on which such Optional
Shares are to be delivered, as determined by the Representative but in no event
earlier than the First Time of Delivery (as defined in Section 4 hereof) or,
unless the Representative and the Company otherwise agree in writing, earlier
than two or later than ten business days after the date of such notice.
3. Upon authorization by the Representative of the release of the Firm
Shares, the several Underwriters propose to offer the Firm Shares for sale upon
the terms and conditions set forth in the Prospectus.
4. (a) Certificates in definitive form for the Shares, to be purchased
by the Underwriters hereunder, and in such denominations and registered in such
names as the Representative shall designate, which the Representative may
request upon at least forty-eight hours' prior notice to the Company, shall be
delivered by or on behalf of the Company to the Representative [either in
certificated form or] through the facilities of the Depository Trust Company
("DTC") for the respective accounts of the several Underwriters, against payment
by the several Underwriters
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through the Representative, delivered to the Representative for the accounts of
the purchasers thereof and made available for checking and packaging at the
office of the Representative at least 24 hours prior to the First Time of
Delivery, in either case against payment by the several Underwriters through the
Representative of the purchase price therefor by certified or official bank
check or checks, payable to the order of the Company in next day New York
Clearing House funds, all at the offices of Xxxxxxx Xxxxxxxx & Xxxx, 0 Xxxxx
Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 or at such other location as may be
mutually agreed. The time and date of such delivery and payment shall be, with
respect to the Firm Shares, [______], New York time, on May __, 1998, or at such
other time and date as the Representative and the Company may agree upon in
writing, and, with respect to the Optional Shares, [______], New York time, on
the date specified in the written notice given by the Representative on behalf
of the several Underwriters' election to purchase such Optional Shares, or at
such other time and date as the Representative and the Company may agree upon in
writing. Such time and date for delivery of the Firm Shares is herein called the
"First Time of Delivery," such time and date for delivery of the Optional
Shares, if not the First Time of Delivery, is herein called the "Second Time of
Delivery," and each such time and date for delivery is herein called a "Time of
Delivery." Such certificates will be made available for checking and packaging
at least twenty-four hours prior to each Time of Delivery at the office of DTC
or its designated custodian Sandler X'Xxxxx & Partners, L.P., 0 Xxxxx Xxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the "Designated Office").
b. The documents to be delivered at each Time of Delivery by
or on behalf of the parties hereto pursuant to Section 7 hereof, including the
cross-receipt for the Shares and any additional documents reasonably requested
by the Representative pursuant to Section 7(i) hereof, will be delivered at the
offices of Xxxxxxx Xxxxxxxx & Wood, 0 Xxxxx Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000 (the "Closing Location"), and the Shares will be delivered at the
Designated Office, all at the Time of Delivery. A meeting will be held at the
Closing Location at [____________________________], New York City time, on the
New York Business Day next preceding such Time of Delivery, at which meeting the
final drafts of the documents to be delivered pursuant to the preceding sentence
will be available for review by the parties hereto. For the purposes of this
Section 4, "New York Business Day" shall mean each Monday, Tuesday, Wednesday,
Thursday and Friday which is not a day on which banking institutions in New York
are generally authorized or obligated by law or executive order to close.
5. The Company agrees with the Underwriters:
a. To prepare the Prospectus as amended and supplemented in
relation to the applicable Shares in a form reasonably approved by the
Representative and to file such Prospectus pursuant to Rule 424(b) under the Act
not later than the Commission's close of business on the second business day
following the execution and delivery of this Agreement or, if applicable, such
earlier time as may be required by Rule 430A(a)(3); to make no further amendment
or supplement to the Registration Statement or the Prospectus as amended or
supplemented after the date of this Agreement and prior to the last Time of
Delivery which shall be approved by the Representative promptly after reasonable
notice thereof; to advise the Representative promptly of any such amendment or
supplement after such Time of Delivery and furnish the Representative with
copies
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thereof; to file promptly all reports and any definitive proxy or
information statements required to be filed by the Company with the Commission
pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act for so long as
the delivery of a prospectus is required in connection with the offering or sale
of the Shares, and during such same period to advise the Representative,
promptly after it receives notice thereof, of the time when any amendment to the
Registration Statement has been filed or becomes effective or any supplement to
the Prospectus or any amended Prospectus has been filed with the Commission, of
the issuance by the Commission of any stop order or of any order preventing or
suspending the use of any prospectus relating to the Shares, of the suspension
of the qualification of such Shares for offering or sale in any jurisdiction, of
the initiation or threatening of any proceeding for any such purpose, or of any
request by the Commission for the amending or supplementing of the Registration
Statement or Prospectus or for additional information; and, in the event of the
issuance of any such stop order or of any such order preventing or suspending
the use of any prospectus relating to the Shares or suspending any such
qualification, to use promptly its best efforts to obtain its withdrawal;
b. Promptly from time to time to take such action as the
Representative may reasonably request to qualify the Shares for offering and
sale under the securities laws of such jurisdictions (other than foreign
countries) as the Representative may request and to comply with such laws so as
to permit the continuance of sales and dealings therein in such jurisdictions
for as long as may be necessary to complete the distribution of the Shares,
provided that in connection therewith the Company shall not be required to
qualify as a foreign corporation or dealer in securities, to subject itself to
taxation as doing business in any jurisdiction or to file a general consent to
service of process in any jurisdiction;
c. Prior to 10:00 a.m., New York City time, on the New York
Business Day next succeeding the date of this Agreement and otherwise from time
to time to furnish the Representative and, upon request, to each of the several
Underwriters, without charge, copies of the Prospectus as amended or
supplemented in such quantities as the Representative or such Underwriters may
reasonably request, and, if the delivery of a prospectus is required at any time
prior to the expiration of nine months after the time of issue of the Prospectus
as amended and supplemented, in connection with the offering or sale of the
Shares and if at such time any event shall have occurred as a result of which
the Prospectus as then amended or supplemented would include an untrue statement
of a material fact or omit to state any material fact necessary in order to make
the statements therein, in the light of the circumstances under which they were
made when such Prospectus is delivered, not misleading, or, if for any other
reason it shall be necessary during such same period to amend or supplement the
Prospectus or to file under the Exchange Act any document incorporated by
reference in the Prospectus in order to comply with the Act or the Exchange Act,
to notify the Representative and upon their request to file such document and to
prepare and furnish without charge to each of the several Underwriters and to
any dealer in securities as many copies as such Underwriter may from time to
time reasonably request of an amended Prospectus or a supplement to the
Prospectus which will correct such statement or omission or effect such
compliance and in any case any of the several Underwriters are required to
deliver a prospectus in connection with sales of any of the Shares at any time
nine months or more after the time of issue of the Prospectus, upon request but
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at the expense of such Underwriter, to prepare and deliver to such Underwriter
as many copies as they may request of an amended or supplemented Prospectus
complying with Section 10(a)(3) of the Act;
d. To make generally available to its securityholders as soon
as practicable, but in any event not later than eighteen months after the
effective date of the Registration Statement (as defined in Rule 158(e)), an
earnings statement of the Company and its subsidiaries (which need not be
audited) complying with Section 11(a) of the Act and the rules and regulations
of the Commission thereunder (including at the option of the Company Rule 158);
e. During a period of five years from the effective date of
the Registration Statement, the Company will furnish to the Representative and,
upon request, to each of the several Underwriters copies of (i) all reports to
its shareholders, and (ii) all reports, financial statements and proxy or
information statements filed by the Company with the commission or any national
securities exchange.
f. During the period commencing on the date hereof and ending
on the 120th day following the date hereof, without the prior written consent of
the Representative, not to, and not to allow its directors and executive
officers to, offer, sell, contract to sell or otherwise dispose of any shares of
Common Stock or any rights to purchase or other securities convertible into or
any securities of the Company substantially similar to any such shares, except
for (i) the shares of Common Stock offered in connection with the offering and
(ii) shares of Common Stock issued pursuant to existing employee and dividend
reinvestment and stock option plans; and
g. To use the net proceeds received by it from the sale of the
Shares pursuant to this Agreement substantially in the manner specified in the
Prospectus under the caption "Use of Proceeds".
6. The Company covenants and agrees with the Representative that the
Company will pay or cause to be paid the following, except as otherwise provided
in Section 5(c): (i) the fees, disbursements and expenses of the Company's
counsel and accountants in connection with the registration of the Shares under
the Act and all other expenses in connection with the preparation, printing and
filing of the Registration Statement, any Preliminary Prospectus and the
Prospectus and amendments and supplements thereto and the mailing and delivering
of copies thereof to the Representative; (ii) the cost of printing or producing
this Agreement, any Blue Sky Memorandum, closing documents (including any
compilations thereof) and any other documents in connection with the offering,
purchase, sale and delivery of the Shares; (iii) all reasonable expenses in
connection with the qualification of the Shares for offering and sale under
state securities laws as provided in Section 5(b) hereof, including the
reasonable fees and disbursements of counsel for the Underwriters in connection
with such qualification and in connection with the Blue Sky survey; (iv) any
filing fees incident to any required review by the National Association of
Securities Dealers, Inc. of the terms of the sale of the Shares; (v) the cost of
preparing stock certificates for the Shares; (vi) the cost and charges of any
transfer agent or registrar; and (vii) all other costs and expenses incident to
the
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performance of its obligations hereunder which are not otherwise specifically
provided for in this Section. It is understood, however, that, except (i) as
provided in this Section, Section 8 and Section 11 hereof and (ii) the payment
by the Company of up to a maximum of $______ of the reasonable out-of-pocket
expenses of Sandler X'Xxxxx & Partners, L.P. incurred in connection herewith,
including, without limitation, fees of counsel, advertising, promotional,
syndication, and travel expenses, the Representative will pay all other of its
own costs and expenses, including the fees of its counsel, stock transfer taxes
on resale of any of the Shares by it, and any advertising expenses connected
with any offers it may make.
7. The obligations of the Underwriters hereunder as to the Shares to be
delivered at each Time of Delivery shall be subject, in the discretion of the
Underwriters, to the condition that all representations and warranties and other
statements of the Company herein are as of the date hereof and, at and as of
such Time of Delivery, true and correct, the condition that the Company shall
have performed all of its obligations hereunder theretofore to be performed, and
the following additional conditions:
a. The Prospectus as amended or supplemented in relation to
the applicable Shares shall have been filed with the Commission pursuant to Rule
424(b) within the applicable time period prescribed for such filing by the rules
and regulations under the Act and in accordance with Section 5(a) hereof; no
stop order suspending the effectiveness of the Registration Statement or any
part thereof shall have been issued and no proceeding for that purpose shall
have been initiated or threatened by the Commission; and all requests for
additional information on the part of the Commission shall have been complied
with to the Underwriters' reasonable satisfaction;
b. Xxxxxxx Xxxxxxxx & Xxxx, counsel for the Underwriters,
shall have furnished to the Representative, on behalf of the Underwriters such
opinion or opinions, dated such Time of Delivery, with respect to the
incorporation of the Company, the validity of the Shares, the Registration
Statement, the Prospectus as amended or supplemented and other related matters
as the Underwriters may reasonably request, and such counsel shall have received
such papers and information as they may reasonably request to enable them to
pass upon such matters;
c. Elias, Matz, Xxxxxxx & Xxxxxxx, L.L.P., counsel for the
Company, shall have furnished to the Representative, on behalf of the
Underwriters, their written opinion, dated such Time of Delivery, in form and
substance reasonably satisfactory to the Representative, to the effect that:
i. The Company has been duly incorporated and is an
existing corporation in good standing under the laws of the State of
Delaware and is duly registered as a bank holding company under the
Bank Holding Company Act of 1956, as amended, with corporate power and
authority to own its properties and conduct its business as it is now
being conducted;
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ii. The Company has been duly qualified as a foreign
corporation for the transaction of business and is in good standing
under the laws of each other jurisdiction in which it owns or leases
properties or conducts any business so as to require such qualification
or is subject to no material liability or disability by reason of
failure to be so qualified in any such jurisdiction;
iii. Each Significant Subsidiary of the Company has
been duly incorporated and is an existing corporation or trust company
in good standing under the laws of its jurisdiction of incorporation;
and all of the issued shares of capital stock of each such Significant
Subsidiary have been duly and validly authorized and issued, and are
fully paid and non-assessable and are owned directly or indirectly by
the Company, free and clear of all liens, encumbrances, equities or
claims;
iv. The Company has an authorized capitalization as
set forth in the Prospectus as amended or supplemented and all of the
issued shares of capital stock of the Company have been duly and
validly authorized and issued and are fully paid and non-assessable;
the Shares have been duly and validly authorized and, when issued and
delivered against payment therefor as provided herein, will be duly and
validly issued and fully paid and non-assessable and will conform in
all material respects to the description thereof contained in the
Prospectus as amended or supplemented; and the holders of outstanding
capital stock of the Company are not entitled to preemptive or other
rights afforded by the Company to subscribe for the Shares;
v. Other than as set forth in the Prospectus, there
are no legal or governmental proceedings pending or, to the best
knowledge of such counsel, threatened 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, individually or in the
aggregate, might reasonably be expected to have a material adverse
effect on the condition, financial or otherwise, business, management,
stockholders' equity, results of operations or prospects of the Company
and its consolidated subsidiaries considered as one enterprise; and, to
the best of such counsel's knowledge, no such proceedings are
threatened or contemplated by governmental authorities or threatened by
others;
vi. The execution and delivery of this Agreement and
the consummation of the transactions contemplated hereby have been duly
authorized by all necessary action on the part of the Company and this
Agreement constitutes the legal, valid and binding agreement of the
Company, enforceable in accordance with its terms, except as rights to
indemnity, contribution and limitations of liability hereunder may be
limited under applicable law (it being understood that such counsel may
avail itself of customary exceptions concerning the effect of
bankruptcy, insolvency or similar laws and the availability of
equitable remedies);
-11-
vii. The issuance and sale of the Shares being
delivered at such Time of Delivery by the Company and the compliance by
the Company with all of the provisions of this Agreement and the
consummation of the transactions herein contemplated will not conflict
with or result in a breach or violation of, or constitute a default
under, any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument known to such counsel to which the Company or
any of its subsidiaries is a party or by which the Company or any of
its subsidiaries is bound or to which any of the property or assets of
the Company or any of its subsidiaries is subject (except for such
conflicts, breaches, violations and defaults that would not have a
material adverse effect on the financial condition or operations of the
Company and its consolidated subsidiaries considered as one enterprise,
and that would not affect the validity of the Shares), nor will such
action result in any violation of the provisions of the Certificate of
Incorporation or By-laws of the Company as in effect at such Time of
Delivery or any existing order known to such counsel, or any statute,
rule or regulation of any court or governmental agency or body having
jurisdiction over the Company or any of its subsidiaries or any of
their properties;
viii. No consent, approval, authorization, order,
registration or qualification of or with any such court or governmental
agency or body is required for the issuance and sale of the Shares or
the consummation by the Company of the transactions contemplated by
this Agreement, except registration under the Act of the Shares, and
such consents, approvals, authorizations, registrations or
qualifications as may be required under state securities or Blue Sky
laws in connection with the purchase and distribution of the Shares by
the Underwriters;
ix. The documents incorporated by reference in the
Prospectus as amended or supplemented or any further amendment or
supplement thereto made by the Company prior to such Time of Delivery
(other than the financial statements and related schedules and other
financial data therein, as to which such counsel need express no
opinion), when they became effective or were filed with the Commission,
as the case may be, complied as to form in all material respects with
the requirements of the Act or the Exchange Act, as applicable, and the
rules and regulations of the Commission thereunder; and such counsel
has no reason to believe that any of such documents, when it became
effective or was so filed, as the case may be, contained, in the case
of a registration statement which became effective under the Act, an
untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading, or, in the case of other documents which were
filed under the Act or the Exchange Act with the Commission, an untrue
statement of a material fact or omitted to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made when such documents were so
filed, not misleading; and
x. The Registration Statement and the Prospectus as
amended or supplemented and any further amendments and supplements
thereto made by the Company
-12-
prior to such Time of Delivery (other than the financial statements and
related schedules and other financial data therein, as to which such
counsel need express no opinion) comply as to form in all material
respects with the requirements of the Act and the rules and regulations
thereunder; such counsel has no reason to believe that, as of its
effective date, the Registration Statement or any further amendment
thereto made by the Company prior to such Time of Delivery (other than
the financial statements and related schedules and other financial data
therein, as to which such counsel need express no opinion) contained an
untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading or that, as of its date, the Prospectus as
amended or supplemented or any further amendment or supplement thereto
made by the Company prior to such Time of Delivery (other than the
financial statements and related schedules and other financial data
therein, as to which such counsel need express no opinion) contained an
untrue statement of a material fact or omitted to state a material fact
necessary to make the statements therein, in light of the circumstances
in which they were made, not misleading or that, as of such Time of
Delivery, either the Registration Statement or the Prospectus as
amended or supplemented or any further amendment or supplement thereto
made by the Company prior to such Time of Delivery (other than the
financial statements and related schedules and other financial data
therein, as to which such counsel need express no opinion) contains an
untrue statement of a material fact or omits to state a material fact
necessary to make the statements therein, in light of the circumstances
in which they were made, not misleading; the statements in the
Prospectus as amended or supplemented or any further amendment or
supplement thereto made by the Company prior to such Time of Delivery
with respect to statutes, administrative orders and regulations and
legal and governmental proceedings fairly and accurately present in all
material respects the information required to be set forth therein and
there are no statutes, administrative orders or regulations required to
be described in the Prospectus or any further amendment or supplement
thereto made by the Company prior to such Time of Delivery which are
not described as required, and such counsel does not know of any
amendment to the Registration Statement required to be filed or any
contracts or other documents of a character required to be filed as an
exhibit to the Registration Statement or required to be incorporated by
reference into the Prospectus as amended or supplemented or any further
amendment or supplement thereto made by the Company prior to such Time
of Delivery or required to be described in the Registration Statement
or the Prospectus as amended or supplemented which are not filed or
incorporated by reference or described as required.
d. On the date of this Agreement and at the Time of Delivery,
the Representative shall have received from Coopers & Xxxxxxx L.L.C. a letter,
dated the date of this Agreement and at the Time of Delivery, respectively, in
form and substance satisfactory to the Representative, confirming that they are
independent certified public accountants with respect to the Company, within the
meaning of the Act, and stating in effect that:
(i) [ In their opinion, the consolidated financial
statements and schedules of the Company audited by them and included or
incorporated in the Registration Statement
-13-
comply in all material respects with the applicable accounting
requirements of the Act and the Exchange Act.
(ii) On the basis of the procedures consisting of a
reading of the latest available unaudited interim consolidated
financial statements of the Company, and its subsidiaries, the minutes
of meetings and consents of the shareholders and boards of directors of
the Company and its subsidiaries, and the committees of such boards,
inquiries of officials of the Company responsible for financial and
accounting matters, and such other inquiries and procedures as may be
specified in such letter, nothing came to their attention that caused
them to believe that the unaudited interim consolidated financial
statements and schedules of the Company included in the Registration
Statement and Prospectus do not comply in all material respects with
the applicable accounting requirements of the Act or the Exchange Act,
or are not in conformity with U.S. generally accepted accounting
principles applied on a basis substantially consistent, except as noted
in the Registration Statement and Prospectus, with the basis for the
audited consolidated financial statements of the Company included or
incorporated in the Registration Statement and Prospectus.
(iii) On the basis of limited procedures, consisting
of a reading of the unaudited interim financial statements and other
information referred to below, a reading of the latest available
unaudited consolidated financial statements of the Company, inspection
of the minute books of the Company since the date of the latest audited
financial statements of the Company included in the Registration
Statement and Prospectus, inquiries of officials of the Company
responsible for financial and accounting matters and such other
inquiries and procedures as may be specified in such letter, nothing
came to their attention that caused them to believe that:
(A) as of a specified date not more than five
business days prior to the date of such letter, there have been
any changes in the consolidated capital stock of the Company, any
increase in the consolidated debt of the Company, any decreases
in consolidated total assets or shareholders equity of the
Company, or any changes, decreases or increases in other items
specified by the Representative, in each case as compared with
amounts shown in the latest unaudited interim consolidated
statements of financial condition of the Company included in the
Registration Statement and Prospectus except in each case for
changes, increases or decreases which the Registration Statement
and Prospectus specifically discloses, have occurred or may occur
or which are described in such letter; and
(B) for the period from the date of the latest
unaudited interim consolidated financial statements included in
the Registration Statement and Prospectus to the specified date
referred to in Clause (iii)(A), there were any decreases in the
consolidated interest income, net interest income, or net income
of the Company or in the per share amount of net income of the
Company, in each case as compared with the comparable period of
the preceding year and with any other
-14-
period of corresponding length specified by the Representative,
except in each case for increases or decreases which the
Registration Statement and Prospectus discloses have occurred or
may occur, or which are described in such letter.
(iv) In addition to the audit referred to in their
report included or incorporated in the Registration Statement and
Prospectus and the limited procedures, inspection of minute books,
inquiries and other procedures referred to in paragraphs (ii) and (iii)
above, they have carried out certain specified procedures, in
accordance with U.S. generally accepted auditing standards, with
respect to certain amounts, percentages and financial information
specified by the Representative which are derived from the general
accounting records and consolidated financial statements of the Company
which appear in the Registration Statement and Prospectus specified by
the Representative in the Registration Statement and Prospectus and
have compared such amounts, percentages and financial information with
the accounting records and the material derived from such records and
consolidated financial statements of the Company have found them to be
in agreement.]
In the event that the letters to be delivered
referred to above set forth any such changes, decreases or increases as
specified in Clauses (iii)(A) or (iii)(B) above, or any exceptions from such
agreement specified in Clause (iv) above, it shall be a further condition to the
obligations of the Underwriters that the Representative, on behalf of the
Underwriters, shall have determined, after discussions with officers of the
Company responsible for financial and accounting matters, that such changes,
decreases, increases or exceptions are set forth in such letters do not (x)
reflect a material adverse change in the items specified in Clause (iii)(A)
above as compared with the amounts shown in the latest unaudited consolidated
statement of financial condition of the Company included in the Registration
Statement and Prospectus, (y) reflect a material adverse change in the items
specified in Clause (iii)(B) above as compared with the corresponding periods of
the prior year or other period specified by the Representative, or (z) reflect a
material change in items specified in Clause (iv) above from the amounts shown
in the Preliminary Prospectus distributed by the Representative in connection
with the offering contemplated hereby or from the amounts shown in the
Registration Statement and Prospectus. At the time of the execution and delivery
of this Agreement and also at each Time of Delivery, Coopers & Xxxxxxx L.L.C.
shall have furnished to the Representative a letter or letters, dated the
respective date of delivery thereof in form and substance reasonably
satisfactory to the Representative;
e. On or after the date hereof, (i) there shall not have been
any material adverse change, or any development which might be reasonably be
expected to result in a material adverse change, in or affecting the condition,
financial or otherwise, business, management, stockholders' equity, results of
operations or prospects of the Company and its consolidated subsidiaries
considered as one enterprise, the effect of which is, in the reasonable judgment
of the Representative, so material and adverse as to make it impractical or
inadvisable to proceed with the public offering or the delivery of the Shares
being delivered at such Time of Delivery on the terms and in the manner
contemplated in the Prospectus as amended or supplemented, (ii) there shall not
have been any material transactions entered into by the Company or any of its
consolidated subsidiaries other than
-15-
those in the ordinary course of business and consistent with past practice,
(iii) neither the Company nor any of its consolidated subsidiaries shall have
sustained since the date of the last audited financial statements included or
incorporated by reference in the Prospectus any material loss or interference
with its business from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or governmental action,
order or decree, otherwise than as set forth or contemplated in the Prospectus,
and (iv) except for regular quarterly dividends on the Common Stock, there shall
not have been any dividend or distribution of any kind declared, paid or made by
the Company on any class of its capital stock;
f. On or after the date hereof there shall not have occurred
any of the following: (i) trading in the Company's Common Stock shall have been
suspended by the Commission or Nasdaq or trading in securities generally on the
New York Stock Exchange or the Nasdaq Stock Market shall have been suspended or
materially limited or minimum prices shall have been established on such
Exchanges; (ii) a general moratorium on commercial banking activities in
Pennsylvania or New York declared by Federal or Pennsylvania or New York State
authorities; or (iii) any material outbreak or material escalation of
hostilities or other calamity or crisis the effect of which on the financial
markets in the United States is such as to make it, in the Representative's
reasonable judgment, impracticable to proceed with the public offering or the
delivery of the Shares being delivered at such Time of Delivery on the terms and
in the manner contemplated by the Prospectus as amended or supplemented;
g. The Company shall have obtained and delivered to the
Representative executed copies of an agreement from the directors and executive
officers of the Company, substantially to the effect set forth in Subsection
5(f) hereof in form and substance satisfactory to the Representative;
h. The Company shall have complied with the provisions of
Section 5(c) hereof with respect to the furnishing of prospectuses on the New
York Business Day next succeeding the date of this Agreement; and
i. The Company shall have furnished or caused to be furnished
to the Representative at such Time of Delivery certificates of officers of the
Company satisfactory to the Representative as to the accuracy of the
representations and warranties of the Company herein at and as of such Time of
Delivery, as to the performance by the Company of all of its obligations
hereunder to be performed at or prior to such Time of Delivery, as to the
matters set forth in subsections (a) and (e) of this Section and as to such
other matters as the Representative may reasonably request.
8. (a) The Company will indemnify and hold harmless each of the several
Underwriters, each of their directors, partners, officers and agents, and each
person, if any, who controls the several Underwriters within the meaning of the
Regulations against any losses, claims, damages, liabilities or expenses
(including reasonable costs of investigation and reasonable attorneys fees and
expenses) joint or several, to which each of the Underwriters may become
subject, under
-16-
the Act or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon an untrue statement
or alleged untrue statement of a material fact contained in any Preliminary
Prospectus, any preliminary prospectus supplement, the Registration Statement,
the Prospectus as amended or supplemented, or any amendment or supplement
thereto, or arise out of or are based upon 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 will reimburse any such Underwriter
for any legal or other expenses reasonably incurred by such Underwriter in
connection with investigating or defending or appearing as a third-party witness
in connection with any such action or claim as such expenses are incurred, but
in no event less frequently than 30 days after each invoice is submitted,
notwithstanding, the possibility that payments for such expenses might later be
held to be improper, in which case such payments shall be promptly refunded;
provided, however, that (i) the Company shall 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 therein in reliance upon and in conformity with written
information furnished to the Company by any Underwriter through the
Representative expressly for use therein, it being acknowledged that the only
information so furnished by such Underwriter is as described in Section 8(b)
hereof, and (ii) such indemnity with respect to any Preliminary Prospectus or
preliminary prospectus supplement shall not inure to the benefit of any
Underwriter (or any person controlling such Underwriter) from whom the person
asserting such loss, claim, damage or liability purchased the Shares which are
the subject thereof if such person was not sent or given a copy of the
Prospectus (or the Prospectus as amended or supplemented), excluding documents
incorporated therein by reference, at or prior to the confirmation of the sale
of such Shares to such person in any case where such delivery is required by the
Act and the untrue statement or omission of a material fact contained in such
related Preliminary Prospectus or preliminary prospectus supplement was
corrected in the Prospectus (or the Prospectus as amended or supplemented).
b. Each Underwriter severally agrees to indemnify and hold
harmless the Company against any losses, claims, damages or liabilities to which
the Company may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon an untrue statement or alleged untrue statement of a
material fact contained in any Preliminary Prospectus, any preliminary
prospectus supplement, the Registration Statement, the Prospectus as amended or
supplemented, or any amendment or supplement thereto, or arise out of or are
based upon 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, in each case to the extent, but only to the extent, that such untrue
statement or alleged untrue statement or omission or alleged omission was made
in any Preliminary Prospectus, any preliminary prospectus supplement, the
Registration Statement, the Prospectus as amended or supplemented, or any such
amendment or supplement, in reliance upon and in conformity with written
information furnished to the Company by the Representative expressly for use
therein; and will reimburse the Company for any legal or other expenses
reasonably incurred by the Company in connection with investigating or defending
any such action or claim as such expenses are incurred. The Company acknowledges
for all purposes of this Agreement that the statements set forth in the
-17-
first sentence of the last paragraph of text on the cover page of the Prospectus
concerning the terms of the offering by the Representative, on behalf of the
Underwriters and in the paragraphs under the caption "Underwriting" in the
Prospectus concerning the terms of the offering by the Underwriters constitute
the only information that is to be furnished in writing by or behalf of the
Underwriters for inclusion in any Preliminary Prospectus, the Registration
Statement, the Prospectus, each as amended or supplemented or any amendment or
supplement thereto.
c. Promptly after receipt by an indemnified party under
subsection (a) or (b) above of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have to
any indemnified party otherwise than under such subsection. In case any such
action shall be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, 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 (who
shall not, except with the consent of the indemnified party, be counsel to the
indemnifying party), and, after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party shall not be liable to such indemnified party under such
subsection for any legal expenses of other counsel or any other expenses, in
each case subsequently incurred by such indemnified party, in connection with
the defense thereof other than reasonable costs of investigation. Any
indemnified party shall have the right to employ separate counsel in any such
action and to participate in the defense thereof, but the fees and expenses of
such counsel shall be at the expense of such indemnified party unless (i) the
employment thereof has been specifically authorized by the indemnifying party in
writing, (ii) the indemnifying party has failed to assume the defense or to
employ counsel reasonably satisfactory to the indemnified party or (iii) the
named parties to any such action (including any impleaded parties) include both
such indemnified party or such controlling person and the indemnifying party and
such indemnified party shall have been advised by counsel that there may be one
or more legal defenses available to it that are different from or in addition to
those available to the indemnifying party (in which case, if such indemnified
party notifies the indemnifying party in writing that it elects to employ
separate counsel at the expense of the indemnifying party, the indemnifying
party shall not have the right to assume the defense of such action on behalf of
such indemnified party); it being understood, however, that the indemnifying
party shall not, in connection with any one such action or separate but
substantially similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances, be liable for the reasonable fees
and expenses of more than one separate firm of attorneys (in addition to any
local counsel) separate from their own counsel at any time and for all such
indemnified parties, which firm shall be designated in writing by the
indemnified party. Each indemnified party, as a condition of such indemnity,
shall use reasonable efforts to cooperate with the indemnifying party in the
defense of any such action or claim. No indemnifying party shall, without the
written consent of the indemnified party, effect the settlement or compromise
of, or consent to the entry of any judgment with respect to, any pending or
threatened action or claim in respect of which
-18-
indemnification or contribution may be sought hereunder (whether or not the
indemnified party is an actual or potential party to such action or claim)
unless such settlement, compromise or judgment (i) includes an unconditional
release of the indemnified party from all liability arising out of such action
or claim and (ii) does not include a statement as to or an admission of fault,
culpability or a failure to act, by or on behalf of any indemnified party. No
indemnifying party shall, without the written consent of the indemnified party,
effect the settlement or compromise of, or consent to the entry of any judgment
with respect to, any pending or threatened action or claim in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified party is an actual or potential party to such action or claim)
unless such settlement, compromise or judgment (i) includes an unconditional
release of the indemnified party from all liability arising out of such action
or claim and (ii) does not include a statement as to or an admission of fault,
culpability or a failure to act, by or on behalf of any indemnified party.
d. If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions 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 in respect thereof) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and the Underwriters
on the other. 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 subsection (c) above, 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 the Company on the one hand and the Underwriters
on the other in connection with the statements or omissions which resulted in
such losses, claims, damages or liabilities (or actions in respect thereof), as
well as any other relevant equitable considerations. The relative benefits
received by the Company on the one hand and the Underwriters on the other shall
be deemed to be in the same proportion as the total net proceeds from such
offering (before deducting expenses) received by the Company to the total gross
underwriting discounts (before deducting expenses) and commissions received by
the Underwriters with respect to the Shares purchased under this Agreement, in
each case as set forth in the table on the cover page of the Prospectus as
amended or supplemented. 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 Representative, on
behalf of the Underwriters 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 Underwriters agree that it would not
be just and equitable if contribution pursuant to this subsection (d) were
determined by pro rata allocation (even if the Underwriters were treated as one
entity for such purpose) or by any other method of allocation which does not
take account the equitable considerations referred to above in this subsection
(d). The amount paid or payable by an indemnified party as a result of the
losses, claims, damages or liabilities (or actions in respect thereof) referred
to above in this subsection (d) shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in connection with
-19-
investigating or defending any such action or claim. Notwithstanding the
provisions of this subsection (d), the Underwriters shall be required to
contribute any amount in excess of the amount by which the total price at which
the Shares underwritten by it and distributed to the public were offered to the
public exceeds the amount of any damages which such Underwriters has otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. 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. For purposes of this subsection (d), each person who controls
the several Underwriters within the meaning of Section 15 of the Act shall have
the same rights to contribution as such Underwriter.
e. The obligations of the Company under this Section 8 shall
be in addition to any liability which the Company may otherwise have and shall
extend, upon the same terms and conditions, to each person, if any, who controls
any such Underwriter within the meaning of the Act; and the obligations of the
several Underwriters under this Section 8 shall be in addition to any liability
which any such Underwriter may otherwise have and shall extend, upon the same
terms and conditions, to each officer and director of the Company and to each
person, if any, who controls the Company within the meaning of the Act.
9. The Representative may terminate this Agreement, by notice to the
Company, at any time prior to the Time of Delivery (i) if there has been, since
the time of execution of this Agreement or since the respective dates as of
which information is given in the Prospectus, any material adverse change in the
condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Company, whether or not arising in the ordinary course
of business, or (ii) trading in securities generally on the New York Stock
Exchange or the Nasdaq Stock Market shall have been suspended or materially
limited or minimum prices shall have been established on such Exchanges; (iii) a
general moratorium or commercial banking activities in Pennsylvania or New York
has been declared by Federal, Pennsylvania or New York State authorities; or
(iv) any material outbreak or material escalation of hostilities or other
calamity or crises the effect of which on the financial markets in the United
States is such as to make it, in the Representative's reasonable judgment,
impracticable to proceed with the public offering contemplated by the Prospectus
as amended or supplemented.
10. The respective indemnities, agreements, representations, warranties
and other statements of the Company and the Underwriters, as set forth in this
Agreement or made by or on behalf of them, respectively, pursuant to this
Agreement, shall remain in full force and effect, regardless of any
investigation (or any statement as to the results thereof) made by or on behalf
of any of the Underwriters or any controlling person of any Underwriter, or the
Company, or any officer or director or controlling person of the Company, and
shall survive delivery of and payment for the Shares.
11. If this Agreement shall be terminated pursuant to Section 9 hereof,
the Company shall not then be under any liability to any of the Underwriters,
except as provided in Section 6 and
-20-
Section 8 hereof; but, if for any other reason, any Shares are not delivered by
or on behalf of the Company as provided herein, the Company will reimburse such
Underwriter for all reasonable out-of-pocket expenses, including reasonable fees
and disbursements of counsel, reasonably incurred by such Underwriter in making
preparations for the purchase, sale and delivery of the Shares not so delivered,
but the Company shall then be under no further liability to such Underwriter
with respect to such Shares except as provided, or referred to, in Section 6 and
Section 8 hereof.
12. All statements, requests, notices and agreements hereunder shall be
in writing, and if to the Representative shall be delivered or sent by mail,
telex or facsimile transmission to the Representative at its address set forth
in this Agreement (Attention: Xxxxxxxxx X. Xxxxxx (Fax: 000-000-0000), and if to
the Company shall be delivered or sent by mail, telex or facsimile transmission
to the address of the Company set forth in the Registration Statement,
Attention: W. Xxxx Xxxxxx (Fax: 000-000-0000). Any such statements, requests,
notices or agreements shall take effect upon receipt thereof.
13. This Agreement shall be binding upon, and inure solely to the
benefit of, the Underwriters, the Company and, to the extent provided in Section
8 and Section 10 hereof, the officers and directors of the Company and each
person who controls the Company or the Underwriters, and their respective heirs,
executors, administrators, successors and assigns, and no other person shall
acquire or have any right under or by virtue of this Agreement. No purchaser of
any of the Shares from the Underwriters shall be deemed a successor or assign by
reason merely of such purchase.
14. Time shall be of the essence of this Agreement. As used herein,
"business day" shall mean each Monday, Tuesday, Wednesday, Thursday and Friday
which is not a day on which banking institutions in New York are generally
authorized or obligated by law or executive order to close.
15. This Agreement shall be governed by and construed in accordance
with the laws of the State of New York.
16. This Agreement may be executed by any one or more of the parties
hereto and thereto in any number of counterparts, each of which shall be deemed
to be an original, but all such respective counterparts shall together
constitute one and the same instrument.
-21-
If the foregoing is in accordance with your understanding, please sign
and return to us five counterparts hereof, and upon the acceptance hereof by you
this letter and such acceptance hereof shall constitute a binding agreement
between the several Underwriters and the Company.
Very truly yours,
PROGRESS FINANCIAL CORPORATION
By: _________________________________
Name: _________________________________
Title: _________________________________
Accepted as of the date hereof:
SANDLER X'XXXXX & PARTNERS, L.P.
By: SANDLER X'XXXXX & PARTNERS CORP.
the sole general partner
By: /s/ Xxxxxxxxx X. Xxxxxx
----------------------------
Name: Xxxxxxxxx X. Xxxxxx
Title: Vice President
On behalf of themselves and the other Underwriters
named in Schedule I hereto.
-22-
