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FINAL EXECUTION COPY
5,000,000 TRUST PREFERRED SECURITIES
PROVIDENT CAPITAL TRUST IV
9.45% TRUST PREFERRED SECURITIES
(LIQUIDATION AMOUNT $25 PER TRUST PREFERRED SECURITY)
AS FULLY AND UNCONDITIONALLY GUARANTEED BY
PROVIDENT FINANCIAL GROUP, INC.
UNDERWRITING AGREEMENT
March 21, 2001
XXXXXXX XXXXX, XXXXXX, XXXXXX & XXXXX
INCORPORATED
XXXXXX BROTHERS INC.
X.X. XXXXXXX & SONS, INC.
MCDONALD INVESTMENTS INC.
XXXXXXXX INC.
As Representatives of the several
Underwriters named in Schedule 1
c/x Xxxxxxx Lynch, Xxxxxx, Xxxxxx & Xxxxx
World Financial Center
New York, New York 10281
Ladies and Gentlemen:
Provident Financial Group, Inc., an Ohio corporation (the "Company"), proposes
to sell 5,000,000 9.45% Trust Preferred Securities, liquidation amount $25 per
Trust Preferred Security ( "Preferred Securities") of Provident Capital Trust
IV, a statutory business trust formed under the Business Trust Act of the State
of Delaware (the "Trust"), guaranteed (the "Guarantee") by the Company pursuant
to the Guarantee Agreement (the "Guarantee Agreement") to be entered into by and
between the Company and The Chase Manhattan Bank, as guarantee trustee (the
"Guarantee Trustee"), the form of which has been filed as an exhibit to the
Registration Statement (as defined below). The aggregate of 5 million Preferred
Securities so proposed to be sold are hereinafter referred to as the "Initial
Preferred Securities". The Company also proposes to sell upon the terms and
conditions set forth in Sections 2 and 4 hereof, up to an additional 750,000
Preferred Securities (the "Optional Preferred Securites"). The Initial Preferred
Securities and the Optional Preferred Securities are hereinafter collectively
referred to as the Preferred Securities, and the Preferred Securities, together
with the Guarantee and the Junior Subordinated Debentures referred to below, are
hereinafter collectively referred to as the Securities. The Company will be the
owner of all of the undivided beneficial ownership interests represented by the
common securities (the "Common Securities") of the Trust. The Trust will issue
the Preferred Securities and the Common Securities to the Company in exchange
for 9.45% Junior Subordinated Debentures due 2031 (the "Junior Subordinated
Debentures") issued by the
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Company. The Junior Subordinated Debentures are to be issued pursuant to the
Indenture (the "Indenture"), dated as of November 13, 2000, between the Company
and The Chase Manhattan Bank, as indenture trustee (the "Indenture Trustee").
This is to confirm the agreement concerning the purchase of the Securities from
the Company by the Underwriters named in Schedule 1 hereto (the "Underwriters").
This is also an acknowledgment that this Agreement applies only to the
Securities and to no other securities that may be offered or sold by the Company
or any of its statutory business trusts under the Registration Statement and by
means of the Basic Prospectus or the Final Prospectus.
1. Representations, Warranties and Agreements of the Company and the
Trust. The Company and the Trust, jointly and severally, represent, warrant and
agree that:
(a) The Company meets the requirements for the use of Form S-3 under
the Securities Act of 1933, as amended (the "Securities Act"), and the
rules and regulations promulgated thereunder (the "Rules and Regulations"),
and has carefully prepared and filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-3 (File
No. 333-93603), which has become effective, for the registration of the
Securities under the Securities Act. The registration statement, as amended
at the date of this Agreement, meets the requirements set forth in Rule
415(a)(1)(x) under the Securities Act and complies in all other material
respects with such rule. The Company proposes to file with the Commission
pursuant to Rule 424 under the Securities Act ("Rule 424") a supplement to
the form of prospectus included in the registration statement relating to
the initial offering of the Securities and the plan of distribution thereof
and has previously advised you of all further information (financial and
other) with respect to the Company to be set forth therein. The term
"Registration Statement" means the registration statement, as amended at
the date of this Agreement, including the exhibits thereto, financial
statements, and all documents incorporated therein by reference pursuant to
Item 12 of Form S-3 under the Securities Act (the "Incorporated
Documents"), and such prospectus as then amended, including the
Incorporated Documents, is hereinafter referred to as the "Basic
Prospectus"; and such supplemented form of prospectus, in the form in which
it shall be filed with the Commission pursuant to Rule 424 (including the
Basic Prospectus as so supplemented), is hereinafter called the "Final
Prospectus". Any preliminary form of the Basic Prospectus or the Final
Prospectus which has heretofore been filed pursuant to Rule 424 is
hereinafter called the "Interim Prospectus". Any reference herein to the
Registration Statement, the Basic Prospectus, any Interim Prospectus or the
Final Prospectus shall be deemed to refer to and include the Incorporated
Documents which were filed under the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), on or before the date of this Agreement or
the issue date of the Basic Prospectus, any Interim Prospectus or the Final
Prospectus, as the case may be; and any reference herein to the terms
"amend", "amendment" or "supplement" with respect to the Registration
Statement, the Basic Prospectus, any Interim Prospectus or the Final
Prospectus shall be deemed to refer to and include the filing of any
Incorporated Documents under the Exchange Act after the date of this
Agreement or the issue date of the Basic Prospectus, any Interim Prospectus
or the Final Prospectus, as the case may be, and deemed to be incorporated
therein by reference. Copies of the Registration Statement and the
amendment or amendments to such Registration Statement have been delivered
by the Company and the Trust to you as
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the representative (the "Representatives") of the Underwriters. The
Commission has not issued any order preventing or suspending the use of the
Registration Statement and no proceeding for that purpose has been
initiated by the Commission.
(b) The Registration Statement conforms and the Final Prospectus and
any further amendments or supplements to the Registration Statement or the
Final Prospectus, when they become effective or were filed with the
Commission, as the case may be, will conform in all material respects to
the requirements of the Securities Act and the Rules and Regulations 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 (as to the Final 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, in light of the circumstances under which they were
made, not misleading; provided that no representation or warranty is made
as to information contained in or omitted from the Registration Statement
or the Final Prospectus in reliance upon and in conformity with written
information furnished to the Company and the Trust through the
Representatives by or on behalf of any Underwriter specifically for
inclusion therein; the Indenture, the Declaration and the Guarantee
Agreement conform in all material respects to and have been qualified under
the requirements of the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act") and the applicable rules and regulations thereunder.
(c) The documents incorporated by reference in the Final Prospectus,
when they were filed with the Commission, conformed in all material
respects to the requirements of the Exchange Act 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, in light of the circumstances under which they were
made, not misleading; and any further documents so filed and incorporated
by reference in the Final Prospectus, when such documents are filed with
the Commission, will conform in all material respects to the requirements
of the Exchange Act, and the rules and regulations of the Commission
thereunder, and will not contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein, in light of
the circumstances under which they were made, or necessary to make the
statements therein not misleading.
(d) The Company and each of its subsidiaries (as defined in Section 15
hereof) have been duly incorporated and are validly existing as
corporations or as banking associations in good standing under the laws of
their respective jurisdictions of incorporation, are duly qualified to do
business and are in good standing as foreign corporations in each
jurisdiction in which their respective ownership or lease of property or
the conduct of their respective businesses requires such qualification
other than where the failure to be so qualified and in good standing could
not reasonably be expected to have a material adverse effect on the
business, financial condition or operating results of the Company and its
subsidiaries taken as a whole, and each has all power and authority
necessary to own or hold their respective properties and to conduct the
businesses in which they are engaged.
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(e) The Company has an authorized capitalization as set forth in the
Final Prospectus 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 and conform to the description thereof contained in the
Final Prospectus; and all of the issued shares of capital stock of each
subsidiary of the Company have been duly and validly authorized and issued
and are fully paid and non-assessable (except as set forth in 12 U.S.C.
ss.55) and are owned directly or indirectly by the Company (except for
directors' qualifying shares, if any), free and clear of all liens,
encumbrances, equities or claims.
(f) The Trust has been duly created and is validly existing as a
statutory business trust in good standing under the Business Trust Act of
the State of Delaware (the "Delaware Business Trust Act") with the trust
power and authority to own property and conduct its business as described
in the Final Prospectus; the Trust has conducted and will conduct no
business other than the transactions contemplated by this Agreement as
described in the Final Prospectus; the Trust is not a party to or bound by
any agreement or instrument other than this Agreement, the Declaration of
Trust dated as of December 22, 1999 and, when executed, the Amended and
Restated Declaration of Trust (the "Declaration") among the Company, The
Chase Manhattan Bank, as property trustee (the "Property Trustee"), Chase
Manhattan Bank USA, National Association, as Delaware trustee (the
"Delaware Trustee") and the individuals named therein as the regular
trustees (the "Regular Trustees," and together with the Property Trustee
and the Delaware Trustees, the "Trustees"), and the holders, from time to
time, of undivided beneficial ownership interests in the assets of the
Trust, and the agreements and instruments contemplated by the Declaration
and described in the Final Prospectus; the Trust has no liabilities or
obligations other than those arising out of the transactions contemplated
by this Agreement and the agreements and instruments contemplated by the
Declaration and described in the Final Prospectus; and the Trust is not a
party or subject to any action, suit or proceeding of any nature.
(g) The Declaration has been duly authorized by the Company and, when
duly executed and delivered by the Company, as Sponsor, and the Regular
Trustees, assuming due authorization, execution and delivery of the
Declaration by the Property Trustee and the Delaware Trustee, will be a
valid and legally binding obligation of the Company and the Trust,
enforceable against the Company and the Trust in accordance with its terms,
subject to the effects of bankruptcy, insolvency, fraudulent conveyance and
transfer, reorganization, moratorium and other similar laws relating to or
affecting the rights of creditors generally, general equitable principles
(whether considered in a proceeding in equity or at law) and an implied
covenant of good faith and fair dealing, and will conform in all material
respects to the description thereof contained in the Final Prospectus. Each
of the Regular Trustees is an employee of the Company and/or The Provident
Bank and has been duly authorized by the Company and/or The Provident Bank
to serve in such capacity and to execute and deliver the Declaration.
(h) The Preferred Securities and the Common Securities have been duly
and validly authorized and, when issued and delivered in exchange for the
Junior Subordinated Debentures as described above, will be duly and validly
issued and fully paid and the Preferred Securities will be non-assessable;
and the Preferred Securities and
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the Common Securities, when issued and delivered, will conform in all
material respects to the description thereof contained in the Final
Prospectus.
(i) The Indenture has been duly authorized and, when duly executed and
delivered by the proper officers of the Company, and assuming due execution
and delivery by the Indenture Trustee, will constitute a valid and legally
binding agreement of the Company enforceable against the Company in
accordance with its terms, subject to the effects of bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other
similar laws relating to or affecting creditors' rights generally, general
equitable principles (whether considered in a proceeding in equity or at
law) and an implied covenant of good faith and fair dealing; and the
Indenture, when executed and delivered, will conform in all material
respects to the description thereof contained in the Final Prospectus; the
Junior Subordinated Debentures have been duly authorized and, when duly
executed, authenticated and delivered as provided in the Indenture, will be
duly and validly issued and outstanding and will constitute valid and
legally binding obligations of the Company entitled to the benefits of the
Indenture and enforceable against the Company in accordance with their
terms, subject to the effects of bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other similar laws relating to
or affecting creditors' rights generally, general equitable principles
(whether considered in a proceeding in equity or at law) and an implied
covenant of good faith and fair dealing; and the Junior Subordinated
Debentures, when issued and delivered, will conform in all material
respects to the description thereof contained in the Final Prospectus.
(j) The Guarantee Agreement has been duly authorized and, when duly
executed and delivered by the proper officers of the Company, assuming due
execution and delivery by the Guarantee Trustee, will constitute a valid
and legally binding agreement of the Company, enforceable against the
Company in accordance with its terms, subject to the effects of bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other
similar laws relating to or affecting creditors' rights generally, general
equitable principles (whether considered in a proceeding in equity or at
law) and an implied covenant of good faith and fair dealing; and the
Guarantee Agreement, when executed and delivered, will conform in all
material respects to the description thereof contained in the Final
Prospectus.
(k) This Agreement (and the transactions contemplated hereby) has been
duly authorized, executed and delivered by each of the Company and the
Trust.
(l) (i) The execution, delivery and performance of this Agreement, the
Declaration, the Guarantee Agreement, the Indenture, the Common Securities,
the Preferred Securities and the Junior Subordinated Debentures by the
Company and the Trust, as applicable, the issuance of the Common Securities
and the Preferred Securities by the Trust in exchange for the Junior
Subordinated Debentures, the issuance of the Junior Subordinated Debentures
by the Company in exchange for the Common Securities and the Preferred
Securities, the sale of the Preferred Securities by the Company and the
consummation of the other transactions contemplated herein and therein will
not conflict with or result in a breach or violation of any of the terms or
provisions of, or constitute a
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default under, any indenture, mortgage, deed of trust, loan agreement or
other agreement or instrument 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 and will not violate or conflict with any
statute or any order, rule or regulation of any court or governmental
agency or body having jurisdiction over the Company, any of its
subsidiaries or the Trust or any of their properties or assets, except for
such conflict, breach, violations or defaults as would not, either
individually or in the aggregate, have a material adverse effect on the
business, financial condition or operating results of the Company and its
subsidiaries taken as a whole; nor will such actions result in any
violation of the provisions of the charter or by-laws of the Company or any
of its subsidiaries; and except for such consents, authorizations,
registrations or qualifications as have already been obtained or as may be
required under the Exchange Act and applicable state securities laws in
connection with the purchase and distribution of the Preferred Securities
by the Underwriters, no consent, approval, authorization or order of, or
filing or registration with, any such court or governmental agency or body
is required for the execution, delivery and performance of this Agreement,
the Declaration, the Guarantee Agreement, the Indenture or the Junior
Subordinated Debentures, the issuance of the Common Securities and the
Preferred Securities by the Trust in exchange for the Junior Subordinated
Securities, the issuance of the Junior Subordinated Debentures by the
Company in exchange for the Common Securities and the Preferred Securities,
the sale of the Preferred Securities by the Company or the consummation of
the transactions contemplated herein and therein.
(m) There are no contracts, agreements or understandings between the
Company or any of its subsidiaries or the Trust and any person granting
such person the right to require the Company or the Trust to include any
other securities in the securities registered pursuant to the Registration
Statement.
(n) Neither the Company nor any of its subsidiaries has sustained,
since the date of the latest audited financial statements included or
incorporated by reference in the Final 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 Final Prospectus; and, since such date, there has
not been any material change in the capital stock or long-term debt of the
Company or any of its subsidiaries, or any material adverse change, or any
development involving a prospective material adverse change, in or
affecting the general affairs, management, financial position or results of
operations of the Company and its subsidiaries taken as a whole, otherwise
than as set forth or contemplated in the Final Prospectus.
(o) The financial statements (including the related notes and
supporting schedules) filed as part of the Registration Statement or
included or incorporated by reference in the Final Prospectus present
fairly in all material respects the financial condition and results of
operations of the entities purported to be shown thereby, at the dates and
for the periods indicated, and have been prepared in conformity with
generally accepted accounting principles applied on a consistent basis
throughout the periods involved; the pro forma financial information
included in the Final Prospectus has been
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prepared in accordance with the requirements of Regulation S-X promulgated
by the Commission and contains all adjustments necessary for a fair
presentation of the information set forth therein; and the information
contained in the Final Prospectus that constitutes "forward-looking
statements" within the meaning of Section 21E(i)(1) of the Exchange Act has
been prepared on the basis of the Company's best current judgments and
estimations as to future operating plans and results.
(p) Xxxxx & Xxxxx, LLP, who have certified certain financial
statements of the Company, whose report appears in the Final Prospectus or
is incorporated by reference therein and who have delivered the initial
letter referred to in Section 7(h) hereof, are independent public
accountants as required by the Securities Act and the Rules and
Regulations.
(q) There are no legal or governmental proceedings pending to which
the Company or any of its subsidiaries is a party or of which any property
or assets of the Company or any of its subsidiaries is the subject which,
if determined adversely to the Company or any of its subsidiaries, might
have a material adverse effect on the consolidated financial position,
stockholders' equity, results of operations or business of the Company and
its subsidiaries taken as a whole; and to the best of the Company's
knowledge, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others.
(r) The conditions for use of Form S-3, as set forth in the General
Instructions thereto, have been satisfied.
(s) There are no contracts or other documents which are required to be
described in the Final Prospectus or filed as exhibits to the Registration
Statement by the Securities Act or by the Rules and Regulations which have
not been described in the Final Prospectus or filed as exhibits to the
Registration Statement or incorporated therein by reference as permitted by
the Rules and Regulations.
(t) Neither the Company nor any of its subsidiaries (i) is in
violation of its charter or by-laws, (ii) is in default in any material
respect, and no event has occurred which, with notice or lapse of time or
both, would constitute such a default, in the due performance or observance
of any term, covenant or condition contained in any material indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument to
which it is a party or by which it is bound or to which any of its property
or assets is subject or (iii) is in violation in any material respect of
any law, ordinance, governmental rule, regulation or court decree to which
it or its property or assets may be subject or has failed to obtain any
material license, permit, certificate, franchise or other governmental
authorization or permit necessary to the ownership of its properties or
assets or to the conduct of its business.
(u) None of the Trust, the Company or any of the Company's
subsidiaries is an "investment company" within the meaning of such term
under the Investment Company Act of 1940, as amended (the "Investment
Company Act"), and the rules and regulations of the Commission thereunder.
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(v) Except as set forth or contemplated in the Final Prospectus, since
the date as of which information is given in the Registration Statement
through the date hereof, and except as may otherwise be disclosed in the
Registration Statement, as amended or supplemented, neither the Company nor
the Trust has (i) issued or granted any securities, (ii) incurred any
liability or obligation, direct or contingent, other than liabilities and
obligations which were incurred in the ordinary course of business, (iii)
entered into any transaction not in the ordinary course of business or (iv)
in the case of the Company, declared or paid any dividend on its capital
stock.
(w) To the best of the Company's knowledge, there has been no storage,
disposal, generation, manufacture, refinement, transportation, handling or
treatment of toxic wastes, medical wastes, hazardous wastes or hazardous
substances by the Company or any of its subsidiaries (or, to the knowledge
of the Company, any of their predecessors in interest) at, upon or from any
of the properties now or previously owned or leased by the Company or its
subsidiaries in violation of any applicable law, ordinance, rule,
regulation, order, judgment, decree or permit or which would require
remedial action under any applicable law, ordinance, rule, regulation,
order, judgment, decree or permit, except for any violation or remedial
action which would not have, or could not be reasonably likely to have,
singularly or in the aggregate with all such violations and remedial
actions, a material adverse effect on the general affairs, management,
financial position, stockholders' equity or results of operations of the
Company and its subsidiaries; there has been no material spill, discharge,
leak, emission, injection, escape, dumping or release of any kind onto such
property or into the environment surrounding such property of any toxic
wastes, medical wastes, solid wastes, hazardous wastes or hazardous
substances due to or caused by the Company or any of its subsidiaries or
with respect to which the Company or any of its subsidiaries have
knowledge, except for any such spill, discharge, leak, emission, injection,
escape, dumping or release which would not have or would not be reasonably
likely to have, singularly or in the aggregate with all such spills,
discharges, leaks, emissions, injections, escapes, dumpings and releases, a
material adverse effect on the business, financial position or operating
results of the Company and its subsidiaries; and the terms "hazardous
wastes," "toxic wastes," "hazardous substances" and "medical wastes" shall
have the meanings specified in any applicable local, state, federal and
foreign laws or regulations with respect to environmental protection.
(x) The Company is duly registered as a bank holding company under the
Bank Holding Company Act of 1956, as amended (the "BHC Act").
(y) The deposit accounts of each of the Company's bank subsidiaries
are insured by the Federal Deposit Insurance Corporation (the "FDIC") to
the fullest extent permitted by law and the rules and regulations of the
FDIC; and no proceedings for the termination of such insurance are pending
or threatened.
(z) The Company and each of its subsidiaries are in compliance in all
material respects, as required, with all laws administered by and
regulations of the Board of Governors of the Federal Reserve System, the
FDIC, the Ohio Division of Financial
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Institutions and any other federal or state bank regulatory authority with
jurisdiction over the Company or any of its subsidiaries (collectively, the
"Bank Regulatory Authorities"), other than where such failures to comply
would not have a material adverse effect on the Company and its
subsidiaries, taken as a whole. Neither the Company nor any of its
subsidiaries is a party to any written agreement or memorandum of
understanding with, or a party to any commitment letter or similar
undertaking to, or is subject to any order or directive by, or is a
recipient of any extraordinary supervisory letter from, or has adopted any
board resolutions at the request of, any Bank Regulatory Authority which
materially restricts the conduct of its business, or in any manner relates
to its capital adequacy, its credit policies or its management, nor have
any of them been advised by any Bank Regulatory Authority that it is
contemplating issuing or requesting, or is considering the appropriateness
of issuing or requesting, any such order, decree, agreement, memorandum of
understanding, extraordinary supervisory letter, commitment letter or
similar submission or any such board resolutions.
(aa) Immediately prior to the closing of the transactions contemplated
hereby on each of the Closing Dates, the Company will have good and valid
title to the Preferred Securities to be sold by it hereunder, free and
clear of all liens, encumbrances, equities or claims; and upon delivery of
the Preferred Securities and payment therefor pursuant hereto, good and
valid title to the Preferred Securities, free and clear of all liens,
encumbrances, equities or claims, will pass to the several Underwriters.
2. Purchase of the Preferred Securities by the Underwriters. (a) The
Company hereby agrees to sell to the several Underwriters, and each Underwriter,
upon the basis of the representations, warranties and agreements herein
contained, but subject to the conditions hereinafter stated, agrees, severally
and not jointly, to purchase from the Company, the respective number of Initial
Preferred Securities set forth in Schedule 1 hereto opposite their names at a
purchase price of $25 per Preferred Security.
(b) As compensation to the Underwriters for their commitments
hereunder, the Company shall, on each Closing Date (as defined in Section 4
hereof) pay to the Representatives, for the accounts of the several
Underwriters, a commission equal to $0.7875 per Preferred Security to be
delivered and purchased on such Closing Date.
(c) The Company and the Trust shall not be obligated to deliver any of
the Securities to be delivered on any Closing Date, except upon payment for
all the Securities to be purchased on such Closing Date as provided herein.
(d) For the purpose of covering any over-allotments in connection with
the distribution and sale of the Initial Preferred Securities as
contemplated by the Final Prospectus, the Underwriters may purchase all or
less than all of the Optional Preferred Securities. The price per share to
be paid for the Optional Preferred Securities shall be $25 per Preferred
Security. The Company agrees to sell to the Underwriters the number of
Optional Preferred Securities specified in the written notice by Xxxxxxx
Xxxxx, Xxxxxx, Xxxxxx & Xxxxx Incorporated ("Xxxxxxx Xxxxx") described
below and the Underwriters agree, severally and not jointly, to purchase
such Optional Preferred Securities. Such Optional Preferred Securities
shall be purchased from the Company for the account of each Underwriter in
the same proportion as the number of Initial
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Preferred Securities set forth opposite such Underwriter's name bears to
the total number of Initial Preferred Securities (subject to adjustment by
Xxxxxxx Xxxxx to eliminate fractions). The option granted hereby may be
exercised as to all or any part of the Optional Preferred Securities at any
time, and from time to time, not more than thirty (30) days subsequent to
the date of this Agreement. No Optional Preferred Securities shall be sold
and delivered unless the Initial Preferred Securities previously have been,
or simultaneously are, sold and delivered. The right to purchase the
Optional Preferred Securities or any portion thereof may be surrendered and
terminated at any time upon notice by Xxxxxxx Xxxxx to the Company.
(e) The option granted hereby may be exercised by written notice being
given to the Company by Xxxxxxx Xxxxx setting forth the number of Optional
Preferred Securities to be purchased by the Underwriters and the date and
time for delivery of and payment for the Optional Preferred Securities.
Each date and time for delivery of and payment for the Optional Preferred
Securities (which may be the Initial Closing Date, but not earlier) is
herein called the "Option Closing Date" and, except as otherwise agreed by
the Company and Xxxxxxx Xxxxx, shall not be earlier than two (2) business
days nor later than five (5) business days after written notice is given.
The Option Closing Date and the Initial Closing Date are herein referred to
as the "Closing Dates".
3. Offering of Preferred Securities by the Underwriters. Upon
authorization by the Representatives of the release of the Preferred Securities,
the several Underwriters propose to offer the Preferred Securities for sale upon
the terms and conditions set forth in the Final Prospectus.
4. Delivery of and Payment. (a) Delivery by the Company of the Initial
Preferred Securities to the Representatives for the respective accounts of the
several Underwriters and payment by the Underwriters therefor by wire transfer
in federal (same day) funds to such account as the Company shall specify, shall
take place at the offices of Xxxxxxx Xxxxxxx & Xxxxxxxx, 000 Xxxxxxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, at 9:30 a.m. on March 28, 2001 or such other date and
time as agreed between the Representatives and the Company or as provided in
Section 9 hereof (such date and time of delivery and payment for the Preferred
Securities being herein called the "Initial Closing Date").
(b) The Initial Preferred Securities will be in the form of one or
more global Preferred Securities registered in the name of Cede & Co., as
nominee of The Depository Trust Company ("DTC").
(c) On the Initial Closing Date, the Company shall pay, or cause to be
paid, the commissions payable on the Initial Closing Date to the
Representatives for the accounts of the Underwriters under Section 2 by
wire transfer in federal (same day) funds to such account as the
Representatives shall specify.
(d) Delivery by the Company of the Optional Preferred Securities to
the Representatives for the respective accounts of the several Underwriters
and payment by the Underwriters therefor by wire transfer in federal (same
day) funds to such account as the Company shall specify, shall take place
at the offices of Xxxxxxx Xxxxxxx & Xxxxxxxx, 000 Xxxxxxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, at 9:30 a.m. on the Option Closing Date or at
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such other date or place as shall be determined by agreement between the
Representatives and the Company.
(e) The Optional Preferred Securities will be in the form of one or
more global Preferred Securities registered in the name of Cede & Co., as
nominee of The Depository Trust Company ("DTC").
(f) On the Option Closing Date, the Company shall pay, or cause to be
paid, the commissions payable on the Option Closing Date to the
Representatives for the accounts of the Underwriters under Section 2 by
wire transfer in federal (same day) funds to such account as the
Representatives shall specify.
5. Further Agreements of the Company and the Trust. Each of the
Company and the Trust, jointly and severally, agrees:
(a) To prepare the Final Prospectus in a form approved by the
Representatives and to file such Prospectus pursuant to Rule 424(b) under
the Securities Act not later than the Commission's close of business on the
second business day following the execution and delivery of this Agreement;
to advise the Representatives, 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 Final Prospectus or any
amended Final Prospectus has been filed and to furnish the Representatives
with copies 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 subsequent to the date of the Final Prospectus and for so long as the
delivery of a prospectus is required in connection with the offering or
sale of the Securities; to advise the Representatives, promptly after it
receives notice thereof, of the issuance by the Commission of any stop
order or of any order preventing or suspending the use of any Interim
Prospectus or the Final Prospectus, of the suspension of the qualification
of the Securities 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 the Final Prospectus or for additional
information; and, in the event of the issuance of any stop order or of any
order preventing or suspending the use of any Interim Prospectus or the
Final Prospectus or suspending the use of any Interim Prospectus or the
Final Prospectus or suspending any such qualification, to use promptly its
best efforts to obtain its withdrawal;
(b) To furnish promptly to the Representatives and to counsel for the
Underwriters a signed copy of the Registration Statement as originally
filed with the Commission, and each amendment thereto filed with the
Commission, including all consents and exhibits filed therewith;
(c) To deliver promptly to the Representatives such number of the
following documents as the Representatives shall reasonably request: (i)
conformed copies of the Registration Statement as originally filed with the
Commission and each amendment thereto (in each case excluding exhibits
other than this Agreement, the Indenture, the Declaration, the Guarantee
Agreement and the computation of the ratio of earnings to
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fixed charges), (ii) each Interim Prospectus, the Final Prospectus
(including the Prospectus Supplement) (not later than 10:00 A.M., New York
City time, on the day following the execution and delivery of this
Agreement) and any amended or supplemented Final Prospectus (not later than
10:00 A.M., New York City time, on the day following the date of such
amendment or supplement) and (iii) any document incorporated by reference
in any Interim Prospectus or the Final Prospectus (excluding exhibits
thereto); and, if the delivery of a prospectus is required at any time
after the effective time of the Registration Statement in connection with
the offering or sale of the Securities (or any other securities relating
thereto) and if, at such time, any events shall have occurred as a result
of which the Final 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 Final Prospectus is
delivered, not misleading, or, if for any other reason it shall be
necessary during such same period to amend or supplement the Final
Prospectus or to file under the Exchange Act any document incorporated by
reference in the Final Prospectus in order to comply with the Securities
Act or the Exchange Act, to notify the Representatives and, upon their
request, to file such document and to prepare and furnish without charge to
each Underwriter and to any dealer in securities as many copies as the
Representatives may from time to time reasonably request of an amended or
supplemented Final Prospectus which will correct such statement or omission
or effect such compliance;
(d) To file promptly with the Commission any amendment to the
Registration Statement or the Final Prospectus or any supplement to the
Final Prospectus that may, in the judgment of the Company or the
Representatives, be required by the Securities Act or requested by the
Commission;
(e) Prior to filing with the Commission any amendment to the
Registration Statement or supplement to the Final Prospectus, any document
incorporated by reference in the Final Prospectus or any Final Prospectus
pursuant to Rule 424 of the Rules and Regulations, to furnish a copy
thereof to the Representatives and counsel for the Underwriters and obtain
the consent of the Representatives to the filing;
(f) To make generally available to the Company's security holders and
to deliver to the Representatives as soon as practicable an earnings
statement of the Company and its subsidiaries (which need not be audited)
complying with Section 11(a) of the Securities Act and the Rules and
Regulations (including, at the option of the Company, Rule 158);
(g) For a period of five years following the Initial Closing Date, to
furnish to the Representatives copies of all materials furnished by the
Company to its shareholders and all public reports and all reports and
financial statements furnished by the Company to the principal national
securities exchange upon which the Company's common stock may be listed or
quoted pursuant to requirements of, or agreements with, such exchange or to
the Commission pursuant to the Exchange Act or any rule or regulation of
the Commission thereunder;
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(h) Promptly from time to time to take such action as the
Representatives may reasonably request to qualify the Securities for
offering and sale under the securities laws of such jurisdictions in the
United States as the Representatives 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 Securities; provided that in connection therewith, neither the Trust
nor the Company shall be obligated to qualify as a foreign corporation or
to file a general consent to service of process;
(i) For a period of 30 days from the date of the Final Prospectus, not
to, directly or indirectly, (1) offer for sale, sell, pledge or otherwise
dispose of (or enter into any transaction or device which is designed to,
or could be expected to, result in the disposition by any person at any
time in the future of) any trust certificate or other securities of the
Trust other than the issuance of the Preferred Securities and Common
Securities to the Company in exchange for the Junior Subordinated
Debentures and the sale of the Preferred Securities by the Company to the
Underwriters, as contemplated by this Agreement and the Final Prospectus,
any securities that are substantially similar to the Securities, or any
securities that are convertible into, or exchangeable or exercisable for,
any of the foregoing, or (2) enter into any swap or other derivatives
transaction that transfers to another, in whole or in part, any of the
economic benefits or risks of ownership of the Securities, whether any such
transaction described in clauses (1) and (2) of this paragraph is to be
settled by delivery of the Securities or other securities, in cash or
otherwise, in each case without the prior written consent of Xxxxxxx Xxxxx
on behalf of the Representatives;
(j) Prior to the Initial Closing Date, to apply for the listing of the
Preferred Securities on the New York Stock Exchange, Inc. and to use its
best efforts to complete that listing, subject only to official notice of
issuance and evidence of satisfactory distribution, prior to the Initial
Closing Date;
(k) To apply the net proceeds from the sale of the Securities as set
forth in the Final Prospectus; and
(l) To take such steps as shall be necessary to ensure that none of
the Company, any subsidiary of the Company or the Trust shall become an
"investment company" within the meaning of such term under the Investment
Company Act and the rules and regulations of the Commission thereunder.
6. Expenses. The Company and the Trust agree to pay (a) the costs
incident to the authorization, issuance, sale and delivery of the Securities and
any taxes payable in that connection; (b) the costs incident to the preparation,
printing and filing under the Securities Act of the Registration Statement, the
Basic Prospectus, any Interim Prospectus, the Final Prospectus and any
amendments and exhibits thereto; (c) the costs of distributing the Registration
Statement as originally filed and each amendment thereto and any post-effective
amendments thereof (including, in each case, exhibits thereto), the Basic
Prospectus, any Interim Prospectus, the Final Prospectus and any amendment or
supplement to any such prospectus or any document incorporated by reference
therein, all as provided in this Agreement; (d) the costs of producing
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and distributing this Agreement and any other related documents in
connection with the offering, purchase, sale and delivery of the
Securities; (e) any applicable listing or other fees; (f) the fees and
expenses of qualifying the Securities under the securities laws of the
several jurisdictions as provided in Section 5(h) hereof and of preparing,
printing and distributing a Blue Sky Memorandum (including related fees and
expenses of counsel to the Underwriters); (g) any fees charged by
securities rating services for rating the Securities; (h) the fees and
expenses of the Property Trustee, the Guarantee Trustee and the Indenture
Trustee; and (i) all other costs and expenses incident to the performance
of the obligations of the Company and the Trust under this Agreement;
provided, however, that, subject to Section 11, the Underwriters shall pay
the costs of distributing any Interim Prospectus to prospective purchasers
and the Final Prospectus to purchasers of the Securities; provided further
that, except as provided in this Section 6 and in Section 11 hereof, the
Underwriters shall pay their own costs and expenses, including the costs
and expenses of their counsel, any transfer taxes on the Securities which
they may sell and the expenses of advertising any offering of the Preferred
Securities made by the Underwriters.
7. Conditions of Underwriters' Obligations. The respective obligations
of the Underwriters hereunder are subject to the accuracy, when made and on each
Closing Date, of the representations and warranties of the Company and the Trust
contained herein, to the performance by the Company and the Trust of their
respective obligations hereunder, and to each of the following additional terms
and conditions:
(a) The Final Prospectus shall have been timely filed with the
Commission 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 any request of the
Commission for inclusion of additional information in the Registration
Statement or the Final Prospectus or otherwise shall have been complied
with.
(b) No Underwriter shall have discovered and disclosed to the Company
on or prior to such Closing Date that the Registration Statement or the
Final Prospectus or any amendment or supplement thereto contains an untrue
statement of a fact which, in the opinion of Xxxxxxx Xxxxxxx & Xxxxxxxx,
counsel for the Underwriters, is material or omits to state a fact which,
in the opinion of such counsel, is material and is required to be stated
therein or is necessary to make the statements therein not misleading.
(c) All corporate proceedings and other legal matters incident to the
authorization, form and validity of this Agreement, the Indenture, the
Declaration, the Guarantee Agreement, the Securities, the Junior
Subordinated Debentures, the Registration Statement, the Basic Prospectus,
any Interim Prospectus and the Final Prospectus, and all other legal
matters relating to this Agreement and the transactions contemplated
hereby, shall be reasonably satisfactory in all material respects to
counsel for the Underwriters; and the Company and the Trust shall have
furnished to such counsel all documents and information that they may
reasonably request to enable them to pass upon such matters.
(d) Xxxxxxx, Xxxxxxxx & Xxxxxxx, P.L.L. shall have furnished to the
Representatives its written opinion, as counsel to the Company, addressed
to the
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Underwriters and dated such Closing Date, in form and substance
satisfactory to the Representatives, to the effect that:
(1) The Company and each of its Significant Subsidiaries (as such
term is defined in Rule 12b-2 of the Commission under the Exchange
Act) have been duly incorporated and are validly existing as
corporations or banking associations in good standing under the laws
of their respective jurisdictions of incorporation, are duly qualified
to do business and are in good standing as foreign corporations in
each jurisdiction in which their respective ownership or lease of
property or the conduct of their respective businesses requires such
qualification (other than those jurisdictions in which the failure to
so qualify would not have a material adverse effect on the Company or
the Company and its subsidiaries taken as a whole), and have all power
and authority necessary to own or hold their respective properties and
conduct the businesses in which they are engaged.
(2) The Underwriting Agreement has been duly authorized, executed
and delivered by the Company and has been duly executed and delivered
by the Trust.
(3) The Indenture has been duly authorized, executed, and
delivered by the Company, has been duly qualified under the Trust
Indenture Act and, assuming due authorization, execution and delivery
thereof by the Indenture Trustee, constitutes a valid and legally
binding obligation of the Company, enforceable against the Company in
accordance with its terms, subject to the effects of bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and
other similar laws relating to or affecting creditors' rights
generally, general equitable principles (whether considered in a
proceeding in equity or at law) and an implied covenant of good faith
and fair dealing.
(4) The Junior Subordinated Debentures have been duly authorized,
executed and delivered by the Company, and, assuming due
authentification thereof by the Indenture Trustee and payment and
delivery as provided herein, constitute valid and legally binding
obligations of the Company enforceable against the Company in
accordance with their terms, subject to the effects of bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and
other similar laws relating to or affecting creditors' rights
generally, general equitable principles (whether considered in a
proceeding in equity or at law) and an implied covenant of good faith
and fair dealing, and entitled to the benefits of the Indenture.
(5) The Guarantee Agreement has been duly authorized, executed
and delivered by the Company, has been duly qualified under the Trust
Indenture Act and, assuming due authorization, execution and delivery
by the Guarantee Trustee, constitutes a valid and legally binding
obligation of
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the Company, enforceable against the Company in accordance with its
terms, subject to the effects of bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other similar laws relating
to or affecting creditors' rights generally, general equitable
principles (whether considered in a proceeding in equity or at law)
and an implied covenant of good faith and fair dealing.
(6) The Declaration has been duly authorized, executed and
delivered by the Company in its capacity as sponsor thereunder and has
been duly qualified under the Trust Indenture Act.
(7) The execution, delivery and performance of this Agreement,
the Declaration, the Indenture, the Junior Subordinated Debentures,
the Preferred Securities, the Common Securities and the Guarantee
Agreement by the Company and the Trust, as applicable, and the
consummation of the transactions contemplated hereby and thereby, will
not constitute a material breach of, or constitute a default under,
any material indenture, mortgage, deed of trust, loan agreement or
other agreement or instrument to which the Company or any of its
Significant Subsidiaries is a party or by which the Company or any of
its Significant Subsidiaries is bound or to which any of the property
or assets of the Company or any of its Significant Subsidiaries is
subject, nor will such actions result in any violation of the
provisions of the charter or by-laws of the Company or any of its
Significant Subsidiaries or any statute or any order, rule or
regulation of any court or governmental agency or body having
jurisdiction over the Company or any of its Significant Subsidiaries
or any of their respective properties or assets, the effects of which
breach, violation or default would be material to the Company and its
subsidiaries taken as a whole.
(8) All of the outstanding shares of capital stock of each
Significant Subsidiary have been duly authorized and validly issued
and are fully paid and non-assessable; except as disclosed in the
Final Prospectus, all such shares are owned by the Company (except for
any directors' qualifying shares) free and clear of any pledge, lien,
security interest, charge, claim, equitable right or encumbrance of
any kind.
(9) No consent, approval, authorization, order, registration or
qualification of or with any Federal or Ohio governmental agency or
body or, to such counsel's knowledge, any Federal or Ohio court is
required for the issue by the Trust of the Preferred Securities and
the Common Securities in exchange for the Junior Subordinated
Debentures, the issuance by the Company of the Junior Subordinated
Debentures in exchange for the Common Securities and the Preferred
Securities, the sale by the Company of the Preferred Securities, the
issuance and sale of the Guarantee by the Company and the compliance
by the Company and the Trust with all of the provisions of this
Agreement and the consummation
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of the transactions contemplated by this Agreement, except for 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 Preferred
Securities by the Underwriters.
(10) To the best of such counsel's knowledge, there are no
contracts or other documents which are required to be described in the
Final Prospectus or filed as exhibits to the Registration Statement by
the Securities Act or by the Rules and Regulations which have not been
described or filed as exhibits to the Registration Statements or
incorporated therein by reference as permitted by the Rules and
Regulations.
(11) To the best of such counsel's knowledge, no contracts,
agreements or understandings exist between the Company and any person
granting such person the right to require the Company to include any
securities of the Company owned or to be owned by such person in the
securities registered pursuant to the Registration Statement.
(12) To the best of such counsel's knowledge, there is no pending
or threatened legal or governmental proceeding which is required to be
described in the Final Prospectus which is not described as required.
(13) To the best of such counsel's knowledge, the Trust is not a
party to or otherwise bound by any agreement other than those
described in the Final Prospectus.
(14) Neither the Company nor the Trust is required to be
registered as an "investment company" under the Investment Company
Act.
(15) The Company is duly registered as a bank holding company
under the BHC Act; and the deposit accounts of the Company's bank
subsidiaries are insured by the FDIC to the fullest extent permitted
by law and the rules and regulations of the FDIC, and to the best
knowledge of such counsel, no proceedings for the termination of such
insurance are pending or threatened.
(16) The Company and each of its subsidiaries are in compliance
with all laws administered by and regulations of the Bank Regulatory
Authorities, other than where such failures to comply would not have a
material adverse effect on the Company and its subsidiaries, taken as
a whole. Neither the Company nor any of its Significant Subsidiaries
is a party to any written agreement or memorandum of understanding
with, or a party to any commitment letter or similar undertaking to,
or is subject to any order or directive by, or is a recipient of any
extraordinary supervisory letter from, or has adopted any board
resolutions at the request of, any
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Bank Regulatory Authority which materially restricts the conduct of
its business, or in any manner relates to its capital adequacy, its
credit policies or its management, nor have any of them been advised
by any Bank Regulatory Authority that it is contemplating issuing or
requesting (or is considering the appropriateness of issuing or
requesting) any such order, decree, agreement, memorandum of
understanding, extraordinary supervisory letter, commitment letter or
similar submission, or any such board resolutions.
(17) The Registration Statement has become effective under the
Securities Act, and no stop order suspending the effectiveness of the
Registration Statement has been issued and, to the best knowledge of
such counsel, no proceeding for that purpose is pending or threatened
by the Commission.
(18) The Registration Statement, the Final Prospectus, the
documents incorporated by reference in the Final Prospectus and each
and any amendment or supplement to the Registration Statement, the
Final Prospectus or any such incorporated document made by the Company
or the Trust on or prior to such Closing Date (other than the
financial statements and related schedules contained therein, as to
which such counsel need express no opinion), comply as to form in all
material respects with the requirements of the Securities Act or the
Exchange Act, as applicable, the Trust Indenture Act and the rules and
regulations of the Commission thereunder, when they became effective
or were filed with the Commission, as the case may be.
(19) The statements made in the Final Prospectus under the
captions "The Trusts," "Description of Debt Securities," "Description
of the Trust Preferred Securities," "Description of the Guarantees,"
"Summary Information Q&A," "Certain Terms of the Capital Securities,"
"Certain Terms of the Junior Subordinated Debentures," "Provident
Capital Trust IV," and "Relationship among the Capital Securities, the
Junior Subordinated Debentures and the Guarantee," insofar as they
purport to constitute summaries of the terms of the documents referred
to therein, constitute accurate summaries of the terms of such
documents in all material respects.
(20) Upon payment for, and delivery of, the Preferred Securities
to be sold by the Company under this Agreement in accordance with the
terms hereof, the Underwriters will acquire all of the rights of the
Company in the Preferred Securities and will also acquire the interest
of the Company in the Preferred Securities free of any adverse claim
(within the meaning of the Uniform Commercial Code).
In rendering such opinion, such counsel may state that its opinion is
limited to matters governed by the Federal laws of the United States of America
and the laws of the
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State of Ohio and that (i) as to matters concerning the Trust given in such
opinion, such counsel relied on special Delaware counsel to the Company and the
Trust, (ii) as to matters governed by New York law, such counsel has relied upon
the opinion of Xxxxxxx Xxxxxxx & Xxxxxxxx, counsel to the Underwriters,
delivered pursuant to Section 7(g) and (iii) has relied on a certificate of Xxxx
Xxxxx, Esq., general counsel to the Company, as to certain factual matters
attached to such opinion. Such counsel shall also have furnished to the
Representatives a written statement, addressed to the Underwriters and dated
such Closing Date, in form and substance satisfactory to the Representatives, to
the effect that (x) such counsel has acted as counsel to the Company in
connection with the preparation of the Registration Statement, the Final
Prospectus and the documents incorporated by reference therein, and in the
course of preparation of those documents such counsel has participated in
conferences with representatives of the Company and its subsidiaries (at which
conferences the business, affairs and properties of the Company and its
subsidiaries were discussed) and with representatives of Xxxxx & Young LLP and
(y) based upon such counsel's examination of the Registration Statement, the
Final Prospectus and the documents incorporated by reference therein, such
counsel's investigations made in connection with the preparation of the
Registration Statement, the Final Prospectus and the documents incorporated by
reference therein and such counsel's participation in the conferences referred
to above, such counsel has no reason to believe that (I) the Registration
Statement, as of its effective date and as of the date of the Annual Report on
Form 10-K of the Company for the fiscal year ended December 31, 2000 (including
such Annual Report), contained any untrue statement of a material fact or
omitted to state any material fact required to be stated therein or necessary to
make the statements therein not misleading, or that the Final Prospectus
contains any untrue statement of a material fact or omits to state any 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, or
(II) any documents incorporated by reference in the Final Prospectus, when they
were filed with the Commission, contained an untrue statement of a material fact
or omitted to state a material fact required to be stated therein or necessary
in order to make the statements therein, in light of the circumstances under
which they were made, not misleading.
(e) Xxxxxxx, Xxxxxxxx & Xxxxxxx, P.L.L. shall have furnished to the
Company and the Representatives its written opinion, as special United
States federal income tax counsel to the Company and the Trust, addressed
to the Company and the Underwriters and dated such Closing Date to the
effect that:
(1) The Trust will be classified as a grantor trust for
United States federal income tax purposes and not as an
association taxable as a corporation;
(2) The Junior Subordinated Debentures will be classified as
indebtedness for United States federal income tax purposes; and
(3) Subject to the qualifications and limitations set forth
therein, the statements set forth in the Final Prospectus under
the caption "United States Federal Income Tax Consequences,"
insofar as they purport to
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constitute summaries of matters of United States federal tax law
and regulations or legal conclusions with respect thereto,
constitute accurate summaries of the matters described therein in
all material respects.
(f) Xxxxxxxx, Xxxxxx & Xxxxxx, P.A. shall have furnished to the
Representatives its written opinion, as special Delaware counsel to the
Company and the Trust, addressed to the Underwriters and dated such Closing
Date, in form and substance satisfactory to the Representatives, to the
effect that:
(1) The Trust has been duly created and is validly existing
in good standing as a business trust under the Delaware Business
Trust Act; and all filings required under the laws of the State
of Delaware with respect to the creation and valid existence of
the Trust as a business trust have been made; and under the
Declaration and the Delaware Business Trust Act, the Trust has
the trust power and authority to own property and to conduct its
business as described in the Final Prospectus and to enter into
and perform its obligations under each of this Agreement, the
Preferred Securities and the Common Securities.
(2) The Declaration constitutes a valid and legally binding
obligation of the Company and the Trustees, and is enforceable
against the Company and the Trustees, in accordance with its
terms, subject, as to enforcement, to the effect upon the
Declaration of (i) bankruptcy, insolvency, moratorium,
receivership, reorganization, liquidation, fraudulent transfer
and other similar laws relating to the rights and remedies of
creditors generally, (ii) principles of equity, including
applicable law relating to fiduciary duties (regardless of
whether considered and applied in a proceeding in equity or at
law), and (iii) the effect of applicable public policy on the
enforceability of provisions relating to indemnification or
contribution.
(3) Under the Delaware Business Trust Act and the
Declaration, the Trust has the trust power and authority (i) to
execute and deliver and to perform its obligations under, this
Agreement and (ii) to execute and deliver the Preferred
Securities and the Common Securities.
(4) The Common Securities have been duly authorized by the
Declaration and, when issued and delivered by the Trust to the
Company in exchange for the Junior Subordinated Debentures as
described in the Final Prospectus, will be validly issued and
(subject to the qualifications set forth in this paragraph) fully
paid undivided beneficial ownership interests in the assets of
the Trust (such counsel may note that the holders of Common
Securities will be subject to the withholding provisions of
Section 10.4 of the Declaration, will be required to make payment
or provide indemnity or security as set forth in the Declaration
and will be liable for the debts and obligations of the Trust to
the extent provided in Section 9.1 of the Declaration); under the
Delaware Business Trust Act
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and the Declaration, the issuance and sale of the Common
Securities is not subject to preemptive or other similar rights.
(5) The Preferred Securities have been duly authorized by
the Declaration and, when issued and delivered in exchange for
the Junior Subordinated Debentures as described in the Final
Prospectus, the Preferred Securities will be duly and validly
issued and (subject to the qualifications set forth in this
paragraph) fully paid and nonassessable undivided beneficial
ownership interests in the assets of the Trust; the holders of
the Preferred Securities will be entitled to the benefits of the
Declaration and, as beneficial owners of the Trust, will be
entitled to the same limitation of personal liability extended to
stockholders of private corporations for profit organized under
the General Corporation Law of the State of Delaware (such
counsel may note that the Holders of Preferred Securities will be
subject to the withholding provisions of Section 10.4 of the
Declaration and will be required to make payment or provide
indemnity or security in connection with taxes or governmental
charges arising from transfers or exchanges of certificates for
Preferred Securities and the issuance of replacement certificates
for Preferred Securities, and to provide security or indemnity in
connection with requests of or directions to the Property Trustee
to exercise its rights and powers under the Declaration, all as
set forth in the Declaration).
(6) Under the Delaware Business Trust Act and the
Declaration, all necessary trust action has been taken to duly
authorize the execution and delivery by the Trust of this
Agreement and the performance by the Trust of its obligations
thereunder.
(7) Under the Delaware Business Trust Act and the
Declaration, the issuance of the Preferred Securities is not
subject to preemptive rights.
(8) The issuance by the Trust of the Preferred Securities
and the Common Securities in exchange for the Junior Subordinated
Debentures, the sale by the Company of the Preferred Securities,
the execution, delivery and performance by the Trust of this
Agreement, the consummation by the Trust of the transactions
contemplated by this Agreement, the compliance by the Trust with
its obligations thereunder and the performance by the Company, as
sponsor, of its obligations under the Declaration (A) do not
violate (i) any of the provisions of the Certificate of Trust or
the Declaration or (ii) any applicable Delaware law or
administrative regulation and do not require any consent,
approval, license, authorization or validation of, or filing or
registration with, any Delaware legislative, administrative or
regulatory body under the laws or administrative regulations of
the State of Delaware (other that as may be required under the
securities or blue sky laws of the state of Delaware, as to which
such counsel need express no opinion) and (B) do not require any
consent, approval, license, authorization or validation of, or
filing or
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registration with, any Delaware legislative, administrative or
regulatory body under the laws or administrative regulations of
the State of Delaware (except that such counsel need express no
opinion with respect to the securities laws of the State of
Delaware).
(9) Assuming that the Trust derives no income from or
connected with services provided within the State of Delaware and
has no assets, activities (other than having a Delaware Trustee
as required by the Delaware Business Trust Act and the filing of
documents with the Secretary of State of the State of Delaware)
or employees in the State of Delaware, the holders of the
Preferred Securities (other than those holders of Preferred
Securities who reside or are domiciled in the State of Delaware)
will have no liability for income taxes imposed by the State of
Delaware solely as a result of their participation in the Trust,
and the Trust will not be liable for any income tax imposed by
the State of Delaware.
(g) The Representatives shall have received from Xxxxxxx Xxxxxxx &
Xxxxxxxx, counsel for the Underwriters, such opinion or opinions, dated
such Closing Date, with respect to the issuance and sale of the Securities,
the Registration Statement, the Final Prospectus and other related matters
as the Representatives may reasonably require, and the Company shall have
furnished to such counsel such documents as they reasonably request for the
purpose of enabling them to pass upon such matters.
(h) At the time of execution of this Agreement, the Representatives
shall have received from Ernst & Young, LLP a letter, in form and substance
satisfactory to the Representatives, addressed to the Underwriters and
dated the date hereof (i) confirming that they are independent public
accountants within the meaning of the Securities Act and are in compliance
with the applicable requirements relating to the qualification of
accountants under Rule 2-01 of Regulation S-X of the Commission, (ii)
stating, as of the date hereof (or, with respect to matters involving
changes or developments since the respective dates as of which specified
financial information is given in the Final Prospectus, as of a date not
more than five days prior to the date hereof), the conclusions and findings
of such firm with respect to the financial information and other matters
ordinarily covered by accountants' "comfort letters" to underwriters in
connection with registered public offerings.
(i) With respect to the letter of Xxxxx & Xxxxx, LLP referred to in
the preceding paragraph and delivered to the Representatives concurrently
with the execution of this Agreement (the "initial letter"), the Company
shall have furnished to the Representatives a letter (the "bring-down
letter") of such accountants, addressed to the Underwriters and dated such
Closing Date (i) confirming that they are independent public accountants
within the meaning of the Securities Act and are in compliance with the
applicable requirements relating to the qualification of accountants under
Rule 2-01 of Regulation S-X of the Commission, (ii) stating, as of the date
of such bring-down letter (or, with respect to matters involving changes or
developments since the respective dates as of which specified financial
information is given in the Final Prospectus, as of a date not more than
five days prior to the date of the bring-down letter), the conclusions and
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findings of such firm with respect to the financial information and other
matters covered by the initial letter and (iii) confirming in all material
respects the conclusions and findings set forth in the initial letter.
(j) The Company and the Trust shall each have furnished to the
Representatives a certificate, dated such Closing Date, of its Chairman of
the Board, its President or an Executive Vice President and its chief
financial officer stating that:
(A) The representations, warranties and agreements of the
Company and the Trust in Section 1 hereof are true and correct as
of such Closing Date; the Company and the Trust have complied
with all their agreements contained herein and the conditions set
forth in paragraphs (a) and (k) of this Section 7 have been
fulfilled, and;
(B) They have carefully examined the Registration Statement
and the Final Prospectus and, in their opinion (i) the
Registration Statement, as of its effective date, and the Final
Prospectus, as of its date and as of such Closing Date, did not
include any untrue statement of a material fact and did not omit
to state a material fact required to be stated therein or
necessary to make the statements therein, in light of the
circumstances in which they were made, not misleading, and (ii)
since such dates, no event has occurred which should have been
set forth in a supplement or amendment to the Registration
Statement or the Final Prospectus.
(k) (i) Neither the Company nor any of its subsidiaries shall have
sustained, since the date of the latest audited financial statements
included or incorporated by reference in the Final Prospectus, any 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 Final Prospectus and (ii) since such date there
shall not have been any change in the capital stock or long-term debt of
the Company or The Provident Bank or any change, or any development
involving a prospective change, in or affecting the general affairs,
management, financial position, stockholders' equity or results of
operations of the Company and its subsidiaries taken as a whole, otherwise
than as set forth or contemplated in the Final Prospectus, the effect of
which, in any such case described in clause (i) or (ii) of this paragraph,
is, in the reasonable judgment of the Representatives, so material and
adverse as to make it impracticable or inadvisable to proceed with the
public offering or the delivery of the Securities on the terms and in the
manner contemplated in the Final Prospectus.
(l) Subsequent to the execution and delivery of this Agreement (i) no
downgrading shall have occurred in the rating accorded the Company's debt
securities or preferred stock by any "nationally recognized statistical
rating organization," as that term is defined by the Commission for
purposes of Rule 436(g)(2) of the Rules and Regulations; and (ii) no such
organization shall have publicly announced that it has under surveillance
or review, with possible negative implications, its rating of any of the
Company's debt securities or preferred stock.
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(m) Subsequent to the execution and delivery of this Agreement there
shall not have occurred any of the following: (i) trading in securities
generally on the New York Stock Exchange or in the over-the-counter market,
or trading in any securities of the Company on any exchange or in the
over-the-counter market, shall have been suspended or minimum prices shall
have been established on the New York Stock Exchange or such market by the
Commission, by such exchange or by any other regulatory body or
governmental authority having jurisdiction, (ii) a banking moratorium shall
have been declared by Federal or state authorities, (iii) the United States
shall have become engaged in hostilities, there shall have been an
escalation in hostilities involving the United States or there shall have
been a declaration of a national emergency or war by the United States or
(iv) there shall have occurred such a material adverse change in general
economic, political or financial conditions (or the effect of international
conditions on the financial markets in the United States shall be such) as
to make it, in the judgment of a majority in interest of the several
Underwriters, impracticable or inadvisable to proceed with the public
offering or delivery of the Securities on the terms and in the manner
contemplated in the Final Prospectus.
(n) The New York Stock Exchange shall have approved the Preferred
Securities for listing, subject only to official notice of issuance and
evidence of satisfactory distribution.
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance reasonably satisfactory
to counsel for the Underwriters.
8. Indemnification and Contribution.
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(a) The Company and the Trust, jointly and severally, shall indemnify
and hold harmless each Underwriter, its officers and employees and each
person, if any, who controls any Underwriter within the meaning of the
Securities Act, from and against any loss, claim, damage or liability,
joint or several, or any action in respect thereof (including, but not
limited to, any loss, claim, damage, liability or action relating to
purchases and sales of the Securities), to which that Underwriter, officer,
employee or controlling person may become subject, under the Securities Act
or otherwise, insofar as such loss, claim, damage, liability or action
arises out of, or is based upon, (i) any untrue statement or alleged untrue
statement of a material fact contained (A) in the Basic Prospectus, any
Interim Prospectus, the Registration Statement or the Final Prospectus, or
in any amendment or supplement thereto, or (B) in any blue sky application
or other document prepared or executed by the Company or the Trust (or
based upon any written information furnished by the Company or the Trust)
specifically for the purpose of qualifying any or all of the Securities
under the securities laws of any state or other jurisdiction (any such
application, document or information being hereinafter called a "Blue Sky
Application"), or (ii) the omission or alleged omission to state in the
Basic Prospectus, any Interim Prospectus, the Registration Statement or the
Final Prospectus, or in any amendment or supplement thereto, or in any Blue
Sky Application any material fact required to be stated therein or
necessary to make the statements therein not misleading or the offering
contemplated hereby, and which is included as part of or referred to in any
loss, claim, damage, liability or action arising out of or based upon
matters covered by clause (i) or (ii) above and shall reimburse each
Underwriter and each such officer, employee or controlling person promptly
upon demand for any legal or other expenses reasonably incurred by that
Underwriter, officer, employee or controlling person in connection with
investigating or defending or preparing to defend against any such loss,
claim, damage, liability or action as such expenses are incurred; provided,
however, that the Company and the Trust shall not be liable in any such
case to the extent that any such loss, claim, damage, liability or action
arises out of, or is based upon, any untrue statement or alleged untrue
statement or omission or alleged omission made in the Basic Prospectus, any
Interim Prospectus, the Registration Statement or the Final Prospectus, or
in any such amendment or supplement, or in any Blue Sky Application in
reliance upon and in conformity with written information concerning such
Underwriter furnished to the Company through the Representatives by or on
behalf of such Underwriter specifically for inclusion therein which
information consists solely of the information specified in Section 8(e)
hereof. The foregoing indemnity agreement is in addition to any liability
which the Company or the Trust may otherwise have to any Underwriter or to
any officer, employee or controlling person of that Underwriter.
(b) Each Underwriter, severally and not jointly, shall indemnify and
hold harmless the Company and the Trust, their officers and employees, each
of their directors and each person, if any, who controls the Company within
the meaning of the Securities Act, from and against any loss, claim, damage
or liability, joint
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or several, or any action in respect thereof, to which the Company or the
Trust or any such director, officer or controlling person may become
subject, under the Securities Act or otherwise, insofar as such loss,
claim, damage, liability or action arises out of, or is based upon, (i) any
untrue statement or alleged untrue statement of a material fact contained
(A) in the Basic Prospectus, any Interim Prospectus, the Registration
Statement or the Final Prospectus, or in any amendment or supplement
thereto, or (B) in any Blue Sky Application or (ii) the omission or alleged
omission to state in the Basic Prospectus, any Interim Prospectus, the
Registration Statement or the Final Prospectus, or in any amendment or
supplement thereto, or in any Blue Sky Application any material fact
required to be stated therein or necessary to make the statements therein
not misleading, but in each case only to the extent that the untrue
statement or alleged untrue statement or omission or alleged omission was
made in reliance upon and in conformity with written information concerning
such Underwriter furnished to the Company and the Trust through the
Representatives by or on behalf of that Underwriter specifically for
inclusion therein, and shall reimburse the Company and the Trust and any
such director, officer or controlling person for any legal or other
expenses reasonably incurred by the Company or the Trust or any such
director, officer or controlling person in connection with investigating or
defending or preparing to defend against any such loss, claim, damage,
liability or action as such expenses are incurred. The foregoing indemnity
agreement is in addition to any liability which any Underwriter may
otherwise have to the Company and the Trust or any such director, officer,
employee or controlling person.
(c) Promptly after receipt by an indemnified party under this Section
8 of notice of any claim or the commencement of any action, the indemnified
party shall, if a claim in respect thereof is to be made against the
indemnifying party under this Section 8, notify the indemnifying party in
writing of the claim or the commencement of that action; provided, however,
that the failure to notify the indemnifying party shall not relieve it from
any liability which it may have under this Section 8 except to the extent
it has been materially prejudiced by such failure and, provided further,
that the failure to notify the indemnifying party shall not relieve it from
any liability which it may have to an indemnified party otherwise than
under this Section 8. If any such claim or action shall be brought against
an indemnified party, and it shall notify the indemnifying party thereof,
the indemnifying party shall be entitled to participate therein and, to the
extent that it wishes, jointly with any other similarly notified
indemnifying party, to assume the defense thereof with counsel satisfactory
to the indemnified party. After notice from the indemnifying party to the
indemnified party of its election to assume the defense of such claim or
action, the indemnifying party shall not be liable to the indemnified party
under this Section 8 for any legal or other expenses subsequently incurred
by the indemnified party in connection with the defense thereof other than
reasonable costs of investigation; provided, however, that the
Representatives shall have the right to employ counsel to represent jointly
the Representatives and those other Underwriters and their respective
officers, employees and controlling persons who may be subject to liability
arising out of
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any claim in respect of which indemnity may be sought by the Underwriters
against the Company under this Section 8 if, in the reasonable judgement of
the Representatives, it is advisable for the Representatives and those
Underwriters, officers, employees and controlling persons to be jointly
represented by separate counsel, and in that event the fees and expenses of
such separate counsel shall be paid by the Company. Each indemnified party,
as a condition of the indemnity agreements contained in Sections 8(a) and
8(b), shall use its best efforts to cooperate with the indemnifying party
in the defense of any such action or claim. No indemnifying party shall (i)
without the prior written consent of the indemnified parties (which consent
shall not be unreasonably withheld), settle or compromise or consent to the
entry of any judgment with respect to any pending or threatened claim,
action, suit or proceeding in respect of which indemnification or
contribution may be sought hereunder (whether or not the indemnified
parties are actual or potential parties to such claim or action) unless
such settlement, compromise or consent includes an unconditional release of
each indemnified party from all liability arising out of such claim,
action, suit or proceeding, or (ii) be liable for any settlement of any
such action effected without its written consent (which consent shall not
be unreasonably withheld), but if settled with the written consent of the
indemnifying party or if there be a final judgment of the plaintiff in any
such action, the indemnifying party agrees to indemnify and hold harmless
any indemnified party from and against any loss or liability by reason of
such settlement or judgment.
(d) If the indemnification provided for in this Section 8 shall for
any reason be unavailable to or insufficient to hold harmless an
indemnified party under Section 8(a) or 8(b) in respect of any loss, claim,
damage or liability, or any action in respect thereof, referred to therein,
then each indemnifying party shall, in lieu of indemnifying such
indemnified party, contribute to the amount paid or payable by such
indemnified party as a result of such loss, claim, damage or liability, or
action in respect thereof, (i) in such proportion as shall be appropriate
to reflect the relative benefits received by the Company and the Trust on
the one hand and the Underwriters on the other from the offering of the
Securities or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause (i) above but
also the relative fault of the Company and the Trust on the one hand and
the Underwriters on the other with respect to the statements or omissions
which resulted in such loss, claim, damage or liability, or action in
respect thereof, as well as any other relevant equitable considerations.
The relative benefits received by the Company and the Trust on the one hand
and the Underwriters on the other with respect to such offering shall be
deemed to be in the same proportion as the total net proceeds from the
offering of the Securities purchased under this Agreement (before deducting
expenses) received by the Company and the Trust, on the one hand, and the
total underwriting discounts and commissions received by the Underwriters
with respect to the shares of the Securities purchased under this
Agreement, on the other hand, bear to the total gross proceeds from the
offering of the shares of the Securities under this Agreement, in each case
as set forth in the table on the cover page of the Final
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Prospectus. The relative fault shall be determined by reference to whether
the untrue or alleged untrue statement of a material fact or omission or
alleged omission to state a material fact relates to information supplied
by the Company and the Trust or the Underwriters the intent of the parties
and their relative knowledge, access to information and opportunity to
correct or prevent such statement or omission. For purposes of the
preceding two sentences, the net proceeds deemed to be received by the
Company shall be deemed to be also for the benefit of the Trust and
information supplied by the Company shall also be deemed to have been
supplied by the Trust. The Company, the Trust and the Underwriters agree
that it would not be just and equitable if contributions pursuant to this
Section 8(d) were to be 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 into account the equitable
considerations referred to herein. The amount paid or payable by an
indemnified party as a result of the loss, claim, damage or liability, or
action in respect thereof, referred to above in this Section 8(d) shall be
deemed to include, for purposes of this Section 8(d), 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 Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at
which the Securities underwritten by it and distributed to the public was
offered to the public exceeds the amount of any damages which such
Underwriter has otherwise paid or become liable to pay by reason of any
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 Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The
Underwriters' obligations to contribute as provided in this Section 8(d)
are several in proportion to their respective underwriting obligations and
not joint.
(e) The Underwriters severally confirm and the Company and the Trust
acknowledge that the statements with respect to the public offering of the
Securities by the Underwriters set forth on the cover page of and the
concession and reallowance figures and the information in the first
paragraph appearing under the caption "Underwriting--Commission and
Discounts," and the textual paragraphs appearing under the caption " --
Price Stabilization and Short Positions" in the Final Prospectus constitute
the only information concerning such Underwriters furnished in writing to
the Company by or on behalf of the Underwriters specifically for inclusion
in the Registration Statement and the Final Prospectus.
9. Defaulting Underwriters. If, on a Closing Date, any Underwriter defaults
in the performance of its obligations under this Agreement, the remaining
non-defaulting Underwriters shall be obligated to purchase the Securities which
the defaulting Underwriter agreed but failed to purchase on such Closing Date in
the respective proportions which the number of Initial Preferred Securities set
opposite the name of each remaining non-defaulting Underwriter in Schedule 1
hereto bears to the total number of Initial Preferred Securities set
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opposite the names of all the remaining non-defaulting Underwriters in Schedule
1 hereto; provided, however, that the remaining non-defaulting Underwriters
shall not be obligated to purchase any of the Securities on such Closing Date if
the total Securities which the defaulting Underwriter or Underwriters agreed but
failed to purchase on such date exceeds 9.09% of the total Securities to be
purchased on such Closing Date, and any remaining non-defaulting Underwriter
shall not be obligated to purchase more than 110% of the Securities which it
agreed to purchase on such Closing Date pursuant to the terms of Section 2. If
the foregoing maximums are exceeded, the remaining non-defaulting Underwriters,
or those other underwriters satisfactory to the Representatives who so agree,
shall have the right, but shall not be obligated, to purchase, in such
proportion as may be agreed upon among them, all the Securities to be purchased
on such Closing Date. If the remaining Underwriters or other underwriters
satisfactory to the Representatives do not elect to purchase the Securities
which the defaulting Underwriter or Underwriters agreed but failed to purchase
on such Closing Date, this Agreement or, with respect to any Option Closing Date
which occurs after the Initial Closing Date, the obligation of the Underwriters
to purchase and the Company to sell the Optional Preferred Securities to be
purchased and sold on such Closing Date, shall terminate without liability on
the part of any non-defaulting Underwriter or the Company and the Trust, except
that the Company and the Trust will continue to be liable for the payment of
expenses to the extent set forth in Sections 6 and 11 hereof. As used in this
Agreement, the term "Underwriter" includes, for all purposes of this Agreement
unless the context requires otherwise, any party not listed in Schedule 1 hereto
who, pursuant to this Section 9, purchases the Securities which a defaulting
Underwriter agreed but failed to purchase.
Nothing contained herein shall relieve a defaulting Underwriter of any
liability it may have to the Company or the Trust for damages caused by its
default. If other underwriters are obligated or agree to purchase the Securities
of a defaulting or withdrawing Underwriter, either the Representatives, the
Company or the Trust may postpone such Closing Date for up to seven full
business days in order to effect any changes that in the opinion of counsel for
the Company or counsel for the Underwriters may be necessary in the Registration
Statement, the Final Prospectus or in any other document or arrangement.
10. Termination. The obligations of the Underwriters hereunder may be
terminated by the Representatives by notice given to and received by the Company
and the Trust prior to delivery of and payment for the Initial Preferred
Securities if, prior to that time, any of the events described in Sections 7(k),
7(l) or 7(m) shall have occurred or if the Underwriters shall decline to
purchase the Securities for any reason permitted under this Agreement.
11. Reimbursement of Underwriters' Expenses. If (a) the Trust shall
fail to tender the Securities for delivery to the Underwriters for any reason or
(b) the Underwriters shall decline to purchase the Securities for any reason
permitted by this Agreement, the Company and the Trust shall reimburse the
Underwriters for all out-of-pocket expenses (including fees and disbursements of
counsel) incurred by the Underwriters in connection with this Agreement and the
proposed purchase of the Securities, and upon demand the Company and the Trust
shall pay the full amount thereof to the Representatives. If this Agreement is
terminated pursuant to Section 9 by reason of the default of one or more
Underwriters, neither the Company nor the Trust shall be obligated to reimburse
any defaulting Underwriter on account of those expenses.
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12. Notices, etc. All statements, requests, notices and agreements
hereunder shall be in writing, and:
(a) if to the Underwriters, shall be delivered or sent by mail, telex
or facsimile transmission to Xxxxxxx Lynch, Xxxxxx, Xxxxxx & Xxxxx
Incorporated, World Financial Center, New York, New York 10281, Attention:
Debt Capital Markets - Xxxxxx Xxxxxx (Fax:000-000-0000);
(b) if to the Company or to the Trust, shall be delivered or sent by
mail, telex or facsimile transmission to the address of the Company set
forth in the Registration Statement, Attention: General Counsel (Fax:
000-000-0000);
All notices to an Underwriter pursuant to Section 8(c) shall be delivered or
sent by mail, telex or facsimile transmission to such Underwriter at its address
set forth in its acceptance telex to the Representatives, which address will be
supplied to any other party hereto by the Representatives upon request. Any such
statements, requests, notices or agreements shall take effect at the time of
receipt thereof. The Company and the Trust shall be entitled to act and rely
upon any request, consent, notice or agreement given or made on behalf of the
Underwriters by Xxxxxxx Xxxxx.
13. Persons Entitled to Benefit of Agreement. This Agreement shall
inure to the benefit of and be binding upon the Underwriters, the Company and
the Trust and their respective successors. This Agreement and the terms and
provisions hereof are for the sole benefit of only those persons, except that
(a) the representations, warranties, indemnities and agreements of the Company
and the Trust contained in this Agreement shall also be deemed to be for the
benefit of the person or persons, if any, who control any Underwriter within the
meaning of Section 15 of the Securities Act and (b) the indemnity agreement of
the Underwriters contained in Section 8(b) of this Agreement shall be deemed to
be for the benefit of directors of the Company, officers of the Company who have
signed the Registration Statement and any person controlling the Company within
the meaning of Section 15 of the Securities Act. Nothing in this Agreement is
intended or shall be construed to give any person, other than the persons
referred to in this Section 13, any legal or equitable right, remedy or claim
under or in respect of this Agreement or any provision contained herein.
14. Survival. The respective indemnities, representations, warranties
and agreements of the Company and the Trust and the Underwriters contained in
this Agreement or made by or on behalf of them, respectively, pursuant to this
Agreement, shall survive the delivery of and payment for the Securities and
shall remain in full force and effect, regardless of any investigation made by
or on behalf of any of them or any person controlling any of them.
15. Definition of the Terms "Business Day" and "Subsidiary". For
purposes of this Agreement, (a) "business day" means each Monday, Tuesday,
Wednesday, Thursday or 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 and (b) "subsidiary" has the meaning set forth in Rule 405 of the Rules
and Regulations.
16. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF NEW YORK.
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17. Counterparts. This Agreement may be executed in one or more
counterparts and, if executed in more than one counterpart, the executed
counterparts shall each be deemed to be an original but all such counterparts
shall together constitute one and the same instrument.
18. Headings. The headings herein are inserted for convenience of
reference only and are not intended to be part of, or to affect the meaning or
interpretation of, this Agreement.
[The remainder of page intentionally left blank; the signature page follows.]
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If the foregoing correctly sets forth the agreement among the
Company and the Trust and the Underwriters, please indicate your acceptance in
the space provided for that purpose below.
Very truly yours,
PROVIDENT FINANCIAL GROUP, INC.
By: __________________________________________
Name:
Title:
PROVIDENT CAPITAL TRUST IV
By: Provident Financial Group, Inc., as Sponsor
By: __________________________________________
Name:
Title:
Accepted:
XXXXXXX XXXXX, XXXXXX, XXXXXX & XXXXX
INCORPORATED
XXXXXX BROTHERS INC.
X.X. XXXXXXX & SONS, INC.
MCDONALD INVESTMENTS INC.
XXXXXXXX INC.
For themselves and as Representatives
of the several Underwriters named
in Schedule 1 hereto
By XXXXXXX XXXXX, XXXXXX, XXXXXX & XXXXX
INCORPORATED
By: ____________________________________
Authorized Representative
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SCHEDULE 1
PROVIDENT CAPITAL TRUST IV
9.45% TRUST PREFERRED SECURITIES DUE 2031 NUMBER OF INITIAL NUMBER OF OPTIONAL
----------------------------------------- --------------------------- ----------------------
PREFERRED SECURITIES PREFERRED SECURITIES
--------------------------- ----------------------
Xxxxxxx Xxxxx, Xxxxxx, Xxxxxx & Xxxxx
Incorporated......................................... 1,440,000 216,000
Xxxxxx Brothers Inc.............................................. 1,440,000 216,000
X.X. Xxxxxxx & Sons, Inc......................................... 1,440,000 216,000
McDonald Investments Inc......................................... 190,000 28,500
Xxxxxxxx Inc..................................................... 190,000 28,500
BB&T Capital Markets, A division of Xxxxx and
Xxxxxxxxxxxx, Inc............................ 20,000 3,000
Xxxxxx X. Xxxxx & Co. Incorporated...................... 20,000 3,000
Xxxx Xxxxxxxx Incorporated.............................. 20,000 3,000
Deutsche Banc Xxxx. Xxxxx Inc.................................... 20,000 3,000
Xxxxxxxxxx & Co. Inc............................................. 20,000 3,000
First Union Securities, Inc...................................... 20,000 3,000
Gibraltar Securities Co.......................................... 20,000 3,000
Gruntal & Co., L.L.C............................................. 20,000 3,000
J.J.B. Xxxxxxxx, X.X. Xxxxx, Inc................................. 20,000 3,000
Xxxxxx Xxxxxxxxxx Xxxxx LLC...................................... 20,000 3,000
Xxxx Xxxxx Xxxx Xxxxxx, Incorporated............................. 20,000 3,000
Quick & Xxxxxx, Inc.............................................. 20,000 3,000
The Xxxxxxxx-Xxxxxxxx Company, LLC............................... 20,000 3,000
TD Securities (USA) Inc.......................................... 20,000 3,000
U.S. Bancorp Xxxxx Xxxxxxx Inc. 20,000 3,000
TOTAL.............. 5,000,000 750,000
