FORM OF LETTER AGREEMENT] September 6, 2005
Exhibit
10.1
September
6, 2005
National
Penn Bancshares, Inc.
Philadelphia
and Xxxxxxx Xxxxxxx
Xxxxxxxxx,
Xxxxxxxxxxxx 00000
Ladies
and Gentlemen:
National
Penn Bancshares, Inc. ("NPB") and Nittany Financial Corp. ("NFC") are
considering entering into a Merger Agreement dated September 6, 2005 (the
"Agreement").
Pursuant
to the proposed Agreement, and subject to the terms and conditions set forth
therein: (a) NPB will acquire NFC by a merger of NFC with and into NPB; (the
“Merger”) (b) shareholders of NFC will receive shares of NPB common stock and/or
cash in exchange for their shares of NFC common stock owned on the closing date;
and (c) holders of NFC options will receive stock options exercisable for common
stock of NPB in exchange for options exercisable for common stock of NFC
outstanding on the closing date (the foregoing, collectively, the
"Transactions").
I have
been advised that I may be deemed to be an "affiliate" of NFC for purposes of
certain rules issued by the Securities and Exchange Commission (the "SEC") under
the Securities Act of 1933.
I
understand that NPB is requiring, as a condition to its execution and delivery
to NFC of the Agreement, that I execute and deliver to NPB this Letter
Agreement.
Intending
to be legally bound hereby, I irrevocably agree and represent as
follows:
1. I
agree to vote or cause to be voted for approval of the Transactions all shares
of NFC common stock over which I exercise sole or shared voting power, excluding
any such shares that I am acting over as a fiduciary other than those which are
held in IRAs for my benefit.
2.
Through the earlier of (a) the receipt of the requisite approval of the
Transactions by the shareholders of NFC or (b) the termination of the Agreement
pursuant to Article VII thereof, I agree not to offer, sell, transfer or
otherwise dispose of, or to permit the offer, sale, transfer or other
disposition of, any shares of NFC common stock over which I exercise sole or
shared voting power or any options that I hold to acquire shares of
National
Penn Bancshares, Inc.
September
6, 2005
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NFC
common stock; provided, however, that I may make a bona fide gift of shares
prior to that date as long as the recipient agrees to vote such shares for
approval of the Transactions and agrees, in writing, to be bound by all the
terms hereof as if an original signatory hereto.
3. I
agree, if I am an optionholder, to exchange my options to acquire shares of
common stock of NFC for options to acquire such number of shares of common stock
of NPB, and at such per share exercise price, as is provided in Section 2.08 of
the Agreement, and otherwise on the same terms and conditions as the exchanged
NFC options (unless I shall have exercised, with the prior written consent of
NPB, any such option prior to the Transactions).
4. I have
sole or shared voting power over the number of shares of NFC common stock, and
hold stock options for the number of shares of NFC common stock, if any, set
forth below opposite my signature line. NPB recognizes that with respect to any
such shares which have been pledged to a third party (which are specifically
identified below), I will not be able to control the voting or disposition of
such shares in the event of a default.
5. I
agree, if I am an optionholder, not to exercise any options to acquire shares of
NFC common stock prior to the closing of the Transactions without the prior
written consent of NPB.
6. I
hereby waive the right to assert dissenters rights under the Pennsylvania
Business Corporation Law of 1988, as amended, and any other applicable law or
regulation.
7. I
agree not to offer, sell, transfer or otherwise dispose of any shares of NPB
common stock received pursuant to the Transactions, except:
(a) at
such time as a registration statement under the Securities Act of 1933, as
amended ("Securities Act"), covering sales of such NPB common stock is effective
and a prospectus is made available under the Securities Act;
(b)
within the limits, and in accordance with the applicable provisions of, Rule 145
under the Securities Act ("Rule 145") or upon expiration of all restrictions set
forth in Rule 145 applicable to me; or
(c) in a
transaction which, in an opinion of counsel satisfactory to NPB or as described
in a "no-action" or interpretive letter from the staff of the SEC, is not
required to be registered under the Securities Act;
National
Penn Bancshares, Inc.
September
6, 2005
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3
and I
acknowledge and agree that NPB is under no obligation to register the sale,
transfer or other disposition of NPB common stock by me or on my behalf, or to
take any other action necessary to make an exemption from registration
available.
8. NPB
shall take all steps necessary to ensure that NPB is in compliance with all
those requirements of Rule 145 and Rule 144 with which NPB must comply in order
for the resale provisions of Rule 145(d) to be available to me. In addition, NPB
shall cause its Director of SEC Compliance (in his/her absence, outside-counsel
selected by NPB) to respond promptly to any requests from NPB’s transfer agent
for the issuance of an opinion that any transfer by me that complies with the
requirements of Rule 145 and 144 may be made provided such counsel receives
customary representation letters and all other information and documentation
reasonably required by NPB from me.
9. I
agree that neither NFC nor NPB shall be bound by any attempted sale of any
shares of NFC common stock or NPB common stock, respectively, and NFC's and
NPB's transfer agents shall be given appropriate stop transfer orders and shall
not be required to register any such attempted sale, unless the sale has been
effected in compliance with the terms of this Letter Agreement; and I further
agree that (a) any certificate representing shares of NPB common stock received
by me pursuant to the Merger may be endorsed with a restrictive legend
consistent with the terms of this Letter Agreement; and (b) any shares of NPB
common stock received by me pursuant to the Merger in the form of book-entry
shares may be subject to a stop order consistent with the terms of this Letter
Agreement. I understand that upon expiration of the restrictions set forth in
Rule 145 and applicable to me, upon my request, NPB shall cause its Director of
SEC Compliance (in his/her absence, outside-counsel selected by NPB) to promptly
issue an opinion to the transfer agent or provide other documentation reasonably
acceptable to the transfer agent so as to cause such stop orders to be lifted.
If at any point in time I hold certificates representing shares of NPB common
stock received by me in the Merger and such certificates bear a restrictive
legend, upon expiration of the restrictions set forth in Rule 145 and applicable
to me, upon my request, NPB shall cause its Director of SEC Compliance (in
his/her absence, outside-counsel selected by NPB) to promptly issue an opinion
to the transfer agent or provide other documentation reasonably acceptable to
the transfer agent so as to cause such certificates to be reissued without such
restrictive legend.
10. I
represent that I have no present plan or intention to offer, sell, exchange, or
otherwise dispose of any shares of NPB common stock to be received in the
Transactions.
11. I
represent that I have the capacity to enter into this Letter Agreement and that
it is a valid and binding obligation enforceable against me in accordance with
its terms, subject
to bankruptcy, insolvency and other laws affecting creditors' rights and general
equitable principles.
National
Penn Bancshares, Inc.
September
6, 2005
Page
4
I am
signing this Letter Agreement in my capacity as a shareholder of NFC, and as an
optionholder if I am an optionholder, and not in any other capacity (including
as a director).
This
Letter Agreement shall be effective upon acceptance by NPB.
[THE
REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
National
Penn Bancshares, Inc.
September
6, 2005
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This
Letter Agreement shall terminate concurrently with, and automatically upon, any
termination of the Agreement in accordance with its terms, except that any such
termination shall be without prejudice to NPB's rights arising out of any
willful breach of any covenant or representation contained herein.
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Very
truly yours, | |||
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Number
of shares held: |
|||
|
Sole
voting power: |
___________ |
||
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Shared
voting power: |
___________ |
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Number
of shares subject |
|||
|
to
stock options: |
___________ |
||
|
Number
of pledged |
|||
|
shares:
|
___________ |
||
|
Witness: |
[Name] | ||
Accepted:
NATIONAL
PENN BANCSHARES, INC.
By:___________________________
Name:
Title:
