EXHIBIT 1.1
SUSQUEHANNA BANCSHARES, INC.
1,500,000 Shares
Common Stock
UNDERWRITING AGREEMENT
December __, 1995
XXXXXXXXXXX & CO., INC.
XXXX XXXXX XXXX XXXXXX, INCORPORATED
XXXXX, XXXXXXXX & XXXXX, INC.
c/o OPPENHEIMER & CO., INC.
Xxxxxxxxxxx Xxxxx
Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
On behalf of the Several
Underwriters named on
Schedule I attached hereto
Ladies and Gentlemen:
Susquehanna Bancshares, Inc., a Pennsylvania corporation (the "Company"),
proposes to sell to you and the other underwriters named on Schedule I to this
Agreement (the "Underwriters") for whom you are acting as Representatives, an
aggregate of 1,500,000 shares (the "Firm Shares") of the Company's Common Stock,
$2.00 par value (the "Common Stock"). In addition, the Company proposes to
grant to the Underwriters an option to purchase up to an additional 225,000
shares (the "Option Shares") of Common Stock from it for the purpose of covering
over-allotments in connection with the sale of the Firm Shares. The Firm Shares
and the Option Shares are together called the "Shares."
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 33-64541) and a related
preliminary prospectus for the registration of the Shares under the Securities
Act of 1933, as amended (the "Securities Act"), and the rules and regulations
thereunder (the "Securities Act Regulations"). The Company has prepared and
filed such amendments thereto, if any, and such amended preliminary
prospectuses, if any, as may have been required to the date hereof, and will
file such additional amendments thereto and such amended prospectuses as may
hereafter be required. The registration statement has been declared effective
under the Securities Act by the Commission. The registration statement as
amended at the time it became effective (including the documents incorporated by
reference therein pursuant to Item 12 of Form S-3 under the Securities Act and
all information deemed to be a part of the registration statement at the time it
became effective pursuant to Rule 430A(b) of the Securities Act Regulations) is
hereinafter called the "Registration Statement," except that, if the Company
files a post-effective amendment to such registration statement which becomes
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effective prior to any Closing Date (as defined below), "Registration Statement"
shall refer to such registration statement as so amended. Each prospectus
included in the registration statement, or amendments thereof, before it became
effective under the Securities Act and any prospectus filed with the Commission
by the Company with the consent of the Representatives pursuant to Rule 424(a)
of the Securities Act Regulations (including the documents incorporated by
reference therein) is hereinafter called the "Preliminary Prospectus." The term
"Prospectus" means the final prospectus (including the documents incorporated by
reference therein), as first filed with the Commission pursuant to paragraph (1)
or (4) of Rule 424(b) of the Securities Act Regulations. The Commission has not
issued any order preventing or suspending the use of any Preliminary Prospectus.
The Company understands that the Underwriters propose to make a public
offering of the Shares, as set forth in and pursuant to the Prospectus, as soon
after the date the Registration Statement becomes effective and the date of this
Agreement as the Underwriters deem advisable. The Company hereby confirms that
the Underwriters and dealers have been authorized to distribute or cause to be
distributed each preliminary prospectus and are authorized to distribute the
Prospectus (as from time to time amended or supplemented if the Company
furnishes amendments or supplements thereto to the Underwriters).
SECTION 1. Representations and Warranties. (a) The Company
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represents and warrants to each Underwriter as follows:
(i) The Registration Statement conforms, and the Prospectus and
any further amendments or supplements thereto will, when they become
effective or are filed with the Commission, as the case may be, conform, in
all material respects with the requirements of the Securities Act and the
Securities Act Regulations thereunder; the Registration Statement did not,
and any amendment thereto will not, in each case as of the applicable
effective date, contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make
the statements therein not misleading; and the Prospectus and any amendment
or supplement thereto will not, as of the applicable filing date and at
each Closing Date (as hereinafter defined), contain an untrue statement of
a material fact or omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they
were made, not misleading; provided, however, that the representations and
warranties in this subsection shall not apply to statements in or omissions
from the Registration Statement or Prospectus made in reliance upon and in
conformity with information furnished to the Company by the Representatives
on behalf of the several Underwriters in writing expressly for use in the
Registration Statement or Prospectus.
(ii) The documents incorporated by reference in the Prospectus
pursuant to Item 12 of Form S-3 under the Securities Act, at the time they
were filed with the Commission, complied as to form in all material
respects with the requirements of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), and the rules and regulations of the
Commission thereunder, and did not contain an untrue statement of
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a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading.
(iii) The Company meets the requirements for the use of Form
S-3 under the Securities Act.
(iv) To the knowledge of the Company, the independent certified
public accountants who certified the financial statements included or
incorporated by reference in the Prospectus are independent public
accountants as required by the Securities Act and the Securities Act
Regulations.
(v) The financial statements, including the notes thereto and
the supporting schedules, included or incorporated by reference in the
Prospectus present fairly, in all material respects, the financial position
of the entities purported to be shown thereby, in each case at the dates
indicated, and the results of their operations for the periods specified;
and said financial statements have been prepared in conformity with
generally accepted accounting principles applied on a consistent basis
except as otherwise stated therein. The pro forma financial statements and
selected pro forma financial data included in the Prospectus comply in all
material respects with the applicable requirements of Regulation S-X of the
Commission and reflect all adjustments necessary to summarize fairly, in
all material respects, the pro forma financial position and results of
operations of the entities purported to be shown thereby at the dates
indicated and for the periods specified.
(vi) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus, except as otherwise
stated therein, (A) there has been no material adverse change in the
condition, financial or otherwise, of the Company and its subsidiaries
considered as one enterprise, or in the earnings, business affairs or
business prospects of the Company and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business, (B)
to the knowledge of the Company, there has been no adverse change in the
condition (financial or other), earnings, business affairs or business
prospects of Fairfax (as such term is defined in the Registration Statement
and the Prospectus) or any of its subsidiaries which would, either
individually or in the aggregate, be material and adverse to the Company,
its subsidiaries and such other company considered as one enterprise,
unless in the event that the Company shall have elected to terminate the
merger agreement for such acquisition, (C) there have been no material
transactions entered into by the Company or its subsidiaries other than
those in the ordinary course of business, (D) the Company has not sustained
any material loss or interference with its assets, businesses or properties
(whether owned or leased) from fire, explosion, earthquake, flood or other
calamity, whether or not covered by insurance, or from any labor dispute or
any court or legislative or other governmental action, order or decree, and
(E) there has not been any change in the capital stock of the Company.
(vii) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
Commonwealth of Pennsylvania with corporate power and authority to own and
lease its properties and to conduct its
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business as described in the Prospectus and to enter into and perform its
obligations under this Agreement and to issue and sell the Shares; the
Company is duly qualified as a foreign corporation to transact business and
is in good standing in each jurisdiction, if any, in which its ownership or
leasing of properties or the conduct of its business requires such
qualification, except where the failure to so qualify would not have a
material adverse effect on the conduct of the business, condition
(financial or otherwise), earnings, business affairs or business prospects
of the Company and its subsidiaries considered as one enterprise; and the
Company is duly registered as a bank holding company under the Bank Holding
Company Act of 1956, as amended.
(viii) Each of the subsidiaries of the Company has been duly
incorporated or organized and is validly existing as a corporation or
association under the laws of its jurisdiction of incorporation or
organization and is duly qualified as a foreign corporation to transact
business and is in good standing in each jurisdiction, if any, in which its
ownership or leasing of properties or the conduct of its business requires
such qualification, except where the failure to so qualify would not have a
material adverse effect on the conduct of the business, condition
(financial or otherwise), earnings, business affairs or business prospects
of the Company and its subsidiaries considered as one enterprise; and the
deposit accounts of each bank or thrift subsidiary of the Company are
insured by the Bank Insurance Fund or the Savings Association Insurance
Fund, as appropriate, of the Federal Deposit Insurance Corporation ("FDIC")
to the fullest amount permitted by law and the rules and regulations of the
FDIC, and no proceedings for the termination of such insurance are pending
or threatened.
(ix) The authorized, issued and outstanding capital stock of
the Company is as set forth in the 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 Prospectus; and all of the issued shares of
capital stock of each subsidiary of the Company have been duly and validly
authorized and issued, are fully paid and non-assessable (subject, however,
to the provisions of Section 55 of Title 12 of the United States Code and
any comparable provision of Maryland or Pennsylvania law) and are owned
directly or indirectly by the Company, free and clear of all liens,
encumbrances, equities or claims.
(x) The Shares to be issued and sold by the Company to the
Underwriters hereunder have been duly and validly authorized and, when
issued and delivered against payment therefor as provided herein, will be
duly and validly issued, fully paid and non-assessable and not subject to
any pre-emptive or similar rights. Except as disclosed in the Registration
Statement and the Prospectus, there is no outstanding option, warrant or
other right calling for the issuance of, and there is no commitment, plan
or arrangement to issue, any share of stock of the Company or any security
convertible into, or exercisable or exchangeable for, such stock. The
Shares will conform to the description thereof contained in the Prospectus.
(xi) This Agreement has been duly authorized, executed and
delivered by the Company.
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(xii) Neither the Company nor any of its subsidiaries is in
violation of its charter or in default in the performance or observance of
any material obligation, agreement, covenant or condition contained in any
contract, indenture, mortgage, loan agreement, note, lease or other
instrument to which it is a party or by which it or any of its properties
may be bound and which is material to the Company and its subsidiaries
considered as one enterprise; and the execution and delivery of this
Agreement, the issuance and sale of the Shares, the compliance by the
Company with the provisions of this Agreement and the consummation of the
transactions herein contemplated will not conflict with or constitute a
breach of, or default under, the articles of incorporation or by-laws of
the Company or a breach or default under any contract, indenture, mortgage,
loan agreement, note, lease or other instrument to which the Company or any
of its subsidiaries is a party or by which it or any of its properties may
be bound and which is material to the Company and its subsidiaries
considered as one enterprise nor (assuming compliance by the Underwriters
with all applicable state securities or blue sky laws) will such action
result in any violation on the part of the Company or its subsidiaries of
any applicable law or regulation or of any applicable administrative,
regulatory or court decree.
(xiii) 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 of the Company or any of its subsidiaries is the subject which are
required to be disclosed in the Registration Statement and are not so
disclosed or which the Company has reasonable cause to believe would
individually or in the aggregate have a material adverse effect on the
consolidated financial position of the Company and its subsidiaries,
considered as one enterprise; and to the best of the Company's knowledge,
no such proceedings are threatened or contemplated by governmental
authorities or threatened by others.
(xiv) No approval, authorization, consent, registration,
qualification or other order of any public board or body is required in
connection with the execution and delivery of this Agreement or the
issuance and sale of the Shares or the consummation by the Company of the
other transactions contemplated by this Agreement, except such as have been
obtained, or will have been obtained at each Closing Date, under the
Securities Act and such as may be required under the blue sky or securities
laws of various states in connection with the offering of the Shares.
(xv) The Company and its subsidiaries possess all material
licenses, certificates, authorities or permits issued by the appropriate
State or Federal regulatory agencies or bodies necessary to conduct their
businesses as described in the Prospectus, and neither the Company nor its
subsidiaries have received any notice of proceedings relating to the
revocation or modification of any such license, certificate, authority or
permit which, individually or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would have a material adverse
effect on the conduct of the business, condition (financial or otherwise),
earnings, business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise. Neither the Company nor any of
its subsidiaries is party to or otherwise the subject of any consent
decree, memorandum of understanding, written commitment or other
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supervisory agreement with the Board of Governors of the Federal Reserve
Board or any Federal Reserve Bank (the "Federal Reserve"), the FDIC, the
Office of the Comptroller of the Currency, or any other federal or state
authority or agency responsible for the supervision, regulation or
insurance of depository institutions or their holding companies.
(xvi) There are no contracts or other documents which are
required to be filed as exhibits to the Registration Statement by the
Securities Act or by the Securities Act Regulations which have not been
filed as exhibits to the Registration Statement.
(xvii) There are no contracts, agreements or understandings
between the Company and any person granting such person the right to
require the Company to file a registration statement under the Securities
Act with respect to any securities of the Company owned or to be owned by
such person or to require the Company to include such securities in the
securities registered pursuant to the Registration Statement. Each
director and executive officer of the Company has delivered to the
Representatives his enforceable written agreement that he will not, for a
period of 120 days after the date of the Prospectus, offer for sale, sell,
distribute, grant any option for the sale of, or otherwise dispose of,
directly or indirectly, or exercise any registration rights with respect
to, any shares of Common Stock (or any securities convertible into, or
exercisable or exchangeable for, any shares of Common Stock) owned by him,
without the prior written consent of the Representatives.
(xviii) The Shares have been duly authorized for quotation on
the National Association of Securities Dealers Automated Quotation
("Nasdaq") National Market, subject to official notice of issuance.
(xix) The Agreement and Plan of Affiliation relating to the
Fairfax Merger (as such term is defined in the Registration Statement and
Prospectus) is in full force and effect and has not been amended, modified
in any material respect or terminated (except as otherwise disclosed in the
Registration Statement and Prospectus), nor has any party thereto taken any
action for that purpose. No action has been taken by the Federal Reserve,
the Office of Thrift Supervision or any other federal or state governmental
agency, authority or body to disapprove, enjoin or prohibit the
transactions contemplated by the Fairfax Merger, and to the best knowledge
of the Company no such action is threatened or contemplated.
(b) Any certificate signed by any officer of the Company and delivered
to you or to your counsel shall be deemed a representation and warranty by the
Company to you as to the matters covered thereby.
SECTION 2. Sale and Delivery to Underwriters; Closing.
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On the basis of the representations and warranties herein contained
and subject to the terms and conditions herein set forth:
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(a) The Company agrees to sell to each Underwriter, severally and not
jointly, and each Underwriter agrees, severally and not jointly, to
purchase from the Company, at $____ per share (the "Initial Price"), the
number of Firm Shares set forth opposite the name of such Underwriter on
Schedule I to this Agreement, plus any additional Shares which such
Underwriter may become obligated to purchase pursuant to the provisions of
Section 10 hereof.
(b) The Company grants to the several Underwriters an option to
purchase, severally and not jointly, all or any part of the Option Shares
at the Initial Price. The number of Option Shares to be purchased by each
Underwriter shall be the same percentage (adjusted by the Underwriters to
eliminate fractions) of the total number of Option Shares to be purchased
by the Underwriters as such Underwriter is purchasing of the Firm Shares.
Such option may be exercised only to cover over-allotments in the sales of
the Firm Shares by the Underwriters and may be exercised in whole or in
part at any time on or before 12:00 noon, New York City time, on the
business day before the Firm Shares Closing Date (as defined below), and
only once thereafter within 30 days after the date of this Agreement, in
each case upon written or telegraphic notice, or verbal or telephonic
notice confirmed by written or telegraphic notice, by the Underwriters to
the Company no later than 12:00 noon, New York City time, on the business
day before the Firm Shares Closing Date or at least two business days
before the Option Shares Closing Date (as defined below), as the case may
be, setting forth the number of Option Shares to be purchased and the time
and date (if other than the Firm Shares Closing Date) of such purchase.
Payment of the purchase price for, and delivery of, the Shares shall
take place at the offices of Xxxxxxxxxxx & Co., Inc., at Xxxxxxxxxxx Xxxxx,
Xxxxx Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or at such other place as
shall be agreed upon by the Representatives and the Company, at 10:00 A.M., New
York City time, on the [third][fourth] business day (unless postponed in
accordance with the provisions of Section 10) following the date of this
Agreement, or such other time as shall be agreed upon by the Representatives and
the Company (such time and date of payment and delivery being herein called the
"Firm Shares Closing Date"). Payment shall be made to the Company by certified
or official bank check or checks payable in New York Clearing House (next days)
funds, against delivery to the Underwriters of the Shares to be purchased by
them.
In the event the option with respect to the Option Shares is
exercised, delivery by the Company of the Option Shares to Xxxxxxxxxxx & Co. for
the respective accounts of the Representatives and payment of the purchase price
by certified or official bank check or checks payable in New York Clearing House
(next day) funds to the Company shall take place at the offices of Xxxxxxxxxxx &
Co., Inc. specified above at the time and on the date (which may be the same
date as, but in no event shall be earlier than, the Firm Shares Closing Date)
specified in the notice referred to in Section 2(b) above (such time and date of
delivery and payment are called the "Option Shares Closing Date"). The Firm
Shares Closing Date and the Option Shares Closing Date are called, individually,
a "Closing Date" and, together, the "Closing Dates."
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Certificates evidencing the Shares shall be registered in such names
and shall be in such denominations as the Representatives shall request at least
two full business days before the Firm Shares Closing Date or, in the case of
Option Shares, on the day of notice of exercise of the option as described in
Section 2 hereof and shall be made available to the Representatives for checking
and packaging, at such place as is designated by the Representatives, on the
full business day before the Firm Shares Closing Date (or the Option Shares
Closing Date in the case of the Option Shares).
SECTION 3. Covenants of the Company. The Company covenants with each
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Underwriter as follows:
(a) The Company will prepare the Prospectus in a form approved by the
Representatives and will file such Prospectus with the Commission pursuant
to subparagraph (1) or (4) of Rule 424(b) not later than the Commission's
close of business on the second business day following the execution and
delivery of this Agreement. The Company will notify the Representatives
immediately, and confirm the notice in writing, (i) of the effectiveness of
the Registration Statement and any amendment thereto (including any post-
effective amendment), and of the filing of the Prospectus pursuant to Rule
424(b), (ii) of the receipt of any comments from the Commission, (iii) of
any request by the Commission for any amendment to the Registration
Statement or any amendment or supplement to the Prospectus or for
additional information, and (iv) of the issuance by the Commission of any
stop order suspending the effectiveness of the Registration Statement or of
any order preventing or suspending the use of any Preliminary Prospectus or
the Prospectus, of the suspension of the qualification of the Shares for
offering or sale in any jurisdiction, or of the initiation or threatening
of any proceeding for any such purpose. The Company will make every
reasonable effort to prevent the issuance of any stop order or of any order
preventing or suspending the use of any Preliminary Prospectus or the
Prospectus or suspending any such qualification and, if any such order is
issued, to obtain the lifting thereof at the earliest possible moment.
(b) The Company will give the Representatives notice of its intention
to prepare or file any amendment to the Registration Statement relating to
the Shares (including any post-effective amendment) or any amendment or
supplement to the Prospectus (including documents deemed to be incorporated
by reference into the Prospectus and including any revised prospectus which
the Company proposes for use by the Underwriters in connection with the
offering of the Shares which differs from the prospectus on file at the
Commission at the time the Registration Statement becomes effective,
whether or not such revised prospectus is required to be filed pursuant to
Rule 424(b) of the Securities Act Regulations), will furnish the
Representatives and counsel for the Underwriters with copies of any such
amendment or supplement a reasonable amount of time prior to such proposed
filing or use, as the case may be, and will not file any such amendment or
supplement or use any such prospectus to which the Representatives or
counsel for the Underwriters shall reasonably object.
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(c) The Company will deliver to each Representative one manually
executed copy of the Registration Statement as originally filed and of each
amendment thereto (including exhibits filed therewith or incorporated by
reference therein and documents incorporated by reference into the
Prospectus), such number of conformed copies of the Registration Statement
as originally filed and of each amendment thereto (including documents
incorporated by reference into the Prospectus but without exhibits) as such
Representative may reasonably request and copies of each Preliminary
Prospectus, the Prospectus and any amended or supplemented Prospectus.
(d) The Company will furnish to each Underwriter, from time to time
during the period when the Prospectus is required to be delivered under the
Securities Act, such number of copies of the Prospectus (as amended or
supplemented, if applicable) as you may reasonably request for the purposes
contemplated by the Securities Act or the Securities Act Regulations.
(e) If any event shall occur as a result of which it is necessary, in
the reasonable opinion of counsel for the Underwriters, to amend or
supplement the Prospectus in order to make the Prospectus not misleading in
the light of the circumstances existing at the time it is delivered to a
purchaser, the Company will forthwith amend or supplement the Prospectus by
preparing and furnishing to the Underwriters a reasonable number of copies
of an amendment of or supplement to the Prospectus (in form and substance
satisfactory to counsel for the Underwriters) so that, as so amended or
supplemented, the Prospectus will not contain an untrue statement of a
material fact or omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances existing at the
time it is delivered to a purchaser, not misleading.
(f) The Company, during the period when the Prospectus is required to
be delivered under the Securities Act, will file promptly all documents
required to be filed with the Commission pursuant to Section 13, 14 or 15
of the Exchange Act subsequent to the time the Registration Statement
becomes effective.
(g) The Company will endeavor, in cooperation with the
Representatives, to qualify the Shares for offering and sale under the
applicable securities laws of such states and other jurisdictions of the
United States as the Representatives may designate, and will maintain such
qualifications in effect for as long as may be required for the
distribution of the Shares, except that the Company shall not be required
in connection therewith to qualify as a foreign corporation or to execute a
general consent to service of process in any state or other jurisdiction.
The Company will file such statements and reports as may be required by the
laws of each jurisdiction in which the Shares have been qualified as above
provided.
(h) The Company will make generally available to its security holders
as soon as practicable after the effective date of the Registration
Statement an earning statement (in form complying with the provisions of
Rule 158 under the Securities Act) covering a twelve-month period beginning
after the date of this Agreement.
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(i) Without the prior written consent of the Representatives, for a
period of 120 days after the date of the Prospectus, the Company shall not
issue or sell, or otherwise dispose of, directly or indirectly, any equity
securities of the Company (or any securities convertible into or
exercisable or exchangeable for equity securities of the Company), except
for the issuance of the Shares pursuant to the Registration Statement, the
grant of awards and options pursuant to option or bonus plans existing on
the date hereof, the issuance of shares pursuant to the Company's existing
stock option plan or bonus plan and the issuance of shares of Common Stock
in connection with the Company's existing dividend reinvestment plan.
(j) For a period of five years (but not beyond any such date on which
no Shares shall be outstanding) after the Firm Shares Closing Date, the
Company will furnish to each Underwriter copies of all reports and
communications delivered to the Company's shareholders or to holders of the
Shares as a class and will also furnish copies of all reports (excluding
exhibits) filed with the Commission on forms 8-K, 10-Q and 10-K, and all
other reports and information furnished to its shareholders generally, not
later than the time such reports are first furnished to its shareholders
generally.
(k) On or before completion of this offering, the Company shall make
all filings required under applicable securities laws (including any
required registration under the Exchange Act) and all filings required to
be made in order to include the Shares for quotation on the Nasdaq National
Market.
SECTION 4. Payment of Expenses. The Company is responsible for
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paying all expenses incident to the performance of its obligations under this
Agreement (except for the fees and disbursements of the counsel for the
Underwriters other than pursuant to (iv) of this Section 4), including (i) the
printing and filing of the Registration Statement as originally filed and any
amendments and exhibits thereto, (ii) the preparation, issuance and delivery of
certificates for the Shares to the Underwriters, (iii) the fees and
disbursements of the Company's counsel and accountants, (iv) the expenses in
connection with the qualification of the Shares under state securities laws in
accordance with the provisions of Section 3(g), including filing fees and the
reasonable fees and disbursements of counsel to the Underwriters in connection
therewith and in connection with the preparation of the Blue Sky and Legal
Investment Surveys, (v) the printing and delivery to the Underwriters of copies
of the Registration Statement and all amendments thereto, of any Preliminary
Prospectuses and of the Prospectus and any amendments or supplements thereto,
(vi) the printing and delivery to the Underwriters of copies of the Blue Sky and
Legal Investment Surveys, (vii) all fees and expenses relating to the inclusion
of the Shares for quotation on the Nasdaq National Market and (viii) all
transfer taxes, if any, with respect to the sale and delivery of the Shares by
the Company to the Underwriters.
SECTION 5. Conditions of Underwriters' Obligations. The obligations
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of the Underwriters to purchase and pay for the Shares are subject to the
accuracy of the representations and warranties of the Company herein contained
at and as of the date hereof
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and each Closing Date, to the performance by the Company of its obligations
hereunder, and to the following further conditions:
(a) The Prospectus shall have been timely filed with the Commission
in accordance with Section 3(a); and at such Closing Date, no stop order
suspending the effectiveness of the Registration Statement or any part
thereof shall have been issued under the Securities Act or proceedings
therefor initiated or threatened by the Commission; and any request of the
Commission for inclusion of additional information in the Registration
Statement or the Prospectus shall have been complied with and there shall
not have come to the attention of any Underwriter any facts that would
cause such Underwriter to believe that the Prospectus, at the time it was
required to be delivered to a purchaser of the Shares, contained an untrue
statement of a material fact or omitted to state a material fact necessary
in order to make the statements therein, in light of the circumstances
existing at such time, not misleading.
(b) At each Closing Date you shall have received:
(1) The favorable opinion, dated as of such Closing Date, of Xxxxxx,
Xxxxx & Xxxxxxx LLP, counsel for the Company, in form and substance
satisfactory to counsel for the Underwriters, to the effect that:
(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
Commonwealth of Pennsylvania.
(ii) The Company has the corporate power and authority to
own and lease its properties and to conduct its business as described
in the Prospectus and to enter into and perform its obligations under
this Agreement; and the Company is duly registered as a bank holding
company under the Bank Holding Company Act of 1956, as amended.
(iii) Each of the bank subsidiaries of the Company and
each of the other subsidiaries of the Company, if any, which either
individually or in the aggregate constitute a "significant subsidiary"
as defined in Rule 405 of the Securities Act Regulations
(collectively, the "Significant Subsidiaries"), has been duly
incorporated and is validly existing as a corporation or national
banking association, as the case may be, under the laws of its
jurisdiction of incorporation or organization.
(iv) The Company has authorized, issued and outstanding
capital stock as set forth in the Registration Statement and the
Prospectus; the certificates evidencing the Shares are in due and
proper legal form and have been duly authorized for issuance by the
Company; all of the issued and outstanding shares of Common Stock of
the Company have been duly and validly authorized and issued and are
fully paid and nonassessable and none of them was issued in violation
of any preemptive or other similar right. To the best of such
counsel's knowledge, except as disclosed in the Registration
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Statement and the Prospectus, there is no outstanding option, warrant
or other right calling for the issuance of, and no commitment, plan or
arrangement to issue, any share of stock of the Company or any
security convertible into, exercisable for, or exchangeable for stock
of the Company. The Common Stock conforms to the description thereof
contained in the Registration Statement and the Prospectus.
(v) This Agreement has been duly authorized, executed
and delivered by the Company.
(vi) The Shares to be issued and sold by the Company to
the Underwriters hereunder have been duly and validly authorized and,
when issued and delivered against payment therefor as provided herein,
will be duly and validly issued, fully paid and non-assessable and not
subject to any pre-emptive or similar rights under the Pennsylvania
Business Corporation Law, the Company' articles of incorporation or
bylaws, or any agreement or other instrument known to us; and the
Shares will conform to the description thereof contained in the
Prospectus.
(vii) The Registration Statement was declared effective
under the Securities Act as of the date specified in such opinion and,
to the best of such counsel's knowledge and information, no stop order
suspending the effectiveness of the Registration Statement has been
issued under the Securities Act and no proceedings therefor have been
initiated or threatened by the Commission.
(viii) The Registration Statement and the Prospectus and
any amendment or supplement thereto made by the Company prior to such
Closing Date (other than the financial statements and financial and
statistical data included therein, as to which no opinion need be
rendered), when it or they became effective or were filed with the
Commission, as the case may be, and in each case at such Closing Date,
complied as to form in all material respects with the requirements of
the Securities Act and the applicable rules and regulations thereunder
and the documents incorporated by reference into the Prospectus (other
than the financial statements and financial and statistical data
included therein, as to which no opinion need be rendered) complied
when filed with the Commission as to form in all material respects
with the requirements of the Exchange Act and the rules and
regulations of the Commission thereunder, and such counsel have no
reason to believe that the Registration Statement, at the time it
became effective, contained 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 not misleading or
that the Prospectus, at the time it was transmitted to the Commission
for filing or at such Closing Date, 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 contained
therein, in the light of the circumstances under which they were made,
not misleading.
13
(ix) To the best of their knowledge and information, 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 of the
Company or any of its subsidiaries is the subject which are required
to be disclosed in the Registration Statement and are not so disclosed
or which, if adversely determined, would individually or in the
aggregate have a material adverse effect on the consolidated financial
position of the Company and its subsidiaries, considered as one
enterprise or which would affect the consummation of the transactions
contemplated in this Agreement or the issuance of the Shares; and to
the best of their knowledge and information, no such proceedings are
threatened or contemplated by governmental authorities or threatened
by others.
(x) The information in the Prospectus under the captions
"Regulatory Matters" and "Description of Capital Stock," to the extent
that it constitutes matters of law, summaries of legal matters,
documents or proceedings, or legal conclusions, has been reviewed by
them and is correct in all material respects.
(xi) To the best of their knowledge and information, there
are no contracts, indentures, mortgages, loan agreements, notes,
leases or other instruments required to be described in the
Registration Statement or to be filed as exhibits thereto other than
those described therein or filed or incorporated by reference as
exhibits thereto, and the descriptions thereof in the Registration
Statement are correct in all material respects.
(xii) No approval, authorization, consent, registration,
qualification or other order of any public board or body is required
in connection with the execution and delivery of this Agreement or the
issuance and sale of the Shares or the consummation by the Company of
the other transactions contemplated by this Agreement, except such as
have been obtained under the Securities Act or such as may be required
under the blue sky or securities laws of various states in connection
with the offering and sale of the Shares (as to which such counsel
need express no opinion).
(xiii) The execution and delivery of this Agreement, the
issue and sale of the Shares, the compliance by the Company with the
provisions of this Agreement and the consummation of the transactions
herein contemplated will not conflict with or constitute a breach of,
or default under, the articles of incorporation or by-laws of the
Company or a breach or default under any contract, indenture,
mortgage, loan agreement, note, lease or other instrument known to
such counsel to which either the Company or any of its subsidiaries is
a party or by which any of them or any of their respective properties
may be bound except for such breaches as would not have a material
adverse effect, individually or in the aggregate, on the conduct of
the business, condition (financial or otherwise), earnings, business
affairs or business prospects of the Company and its subsidiaries
considered as one enterprise, nor will such action (assuming
compliance by the Underwriters with all applicable state securities or
14
blue sky laws) result in a violation on the part of the Company or any
of its subsidiaries of any applicable law or regulation or of any
administrative, regulatory or court decree known to such counsel.
In rendering their opinion, such counsel may rely, as to matters of
fact relating to the Company, upon certificates or representations of
officers of the Company relating to such facts.
(2) The favorable opinion, dated as such Closing Date, of
your counsel, Xxxxxxx Xxxxxxx & Xxxxxxxx, with respect to the matters
set forth in (i), (vi), (vii) and, solely as it relates to the
information set forth under the caption "Description of Capital Stock"
in the Prospectus, (x), of subsection (b)(1) of this Section. In
rendering their opinion, Xxxxxxx Xxxxxxx & Xxxxxxxx may rely as to
matters of Pennsylvania law upon the opinion of Xxxxxx, Xxxxx &
Bockius LLP.
(c) At each Closing Date there shall not have been, since the
respective dates as of which information is given in the Registration
Statement, any material adverse change in the condition, financial or
otherwise, of the Company and its subsidiaries considered as one
enterprise, or in the earnings, business affairs or business prospects of
the Company and its subsidiaries considered as one enterprise, whether or
not arising in the ordinary course of business, and you shall have received
a certificate of the President or the Vice President and Secretary of the
Company and the principal financial or accounting officer of the Company,
dated as of each such Closing Date, to the effect that there has been no
such material adverse change and to the effect that the other
representations and warranties of the Company contained in Section 1 are
true and correct with the same force and effect as though expressly made at
and as of such Closing Date and that the Company has complied with all its
agreements contained herein and that they have examined the Registration
Statement and the Prospectus and that, in their opinion, as of the
Effective Date and as of such Closing Date, the Registration Statement and
the Prospectus 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 not misleading.
(d) At the time of the execution of this Agreement, the
Representatives shall have received from Coopers & Xxxxxxx L.L.P. a letter
dated such date, in form and substance satisfactory to the Representatives,
to the effect that (i) they are independent public accountants as required
by the Securities Act and the Securities Act Regulations; (ii) it is their
opinion that the financial statements included or incorporated by reference
in the Registration Statement and covered by their opinion therein comply
as to form in all material respects with the applicable accounting
requirements of the Securities Act and the Exchange Act and the applicable
rules and regulations thereunder; (iii) based upon limited procedures set
forth in detail in such letter, nothing has come to their attention which
causes them to believe that (A) the unaudited pro forma financial
statements included in the Prospectus do not comply as to form in all
material respects with the applicable accounting requirements of Rule 11-02
of Regulation S-X or, after making inquiries of certain officials of the
Company
15
as to the basis for their determination of the pro forma adjustments, that
the pro forma adjustments in such unaudited pro forma financial statements
have not been properly applied to the historical amounts in the unaudited
pro forma consolidated financial statements, (B) the unaudited financial
statements of the Company and its subsidiaries included in the Company's
Quarterly Report on Form 10-Q for the quarter ended September 30, 1995 do
not comply as to form in all material respects with the applicable
accounting requirements of the Exchange Act and the rules and regulations
of the Commission thereunder or are not fairly presented in conformity with
generally accepted accounting principles applied on a basis consistent in
all material respects with the audited financial statements included in the
Registration Statement, or (C) during the period from September 30, 1995 to
a specified date not more than five days prior to the date of this
Agreement, there has been any change in the capital stock or long-term
debt of the Company or its subsidiaries or any decrease in consolidated
total assets or shareholder's equity of the Company and its subsidiaries as
compared with the amounts shown in the September 30, 1995 consolidated
balance sheet incorporated by reference in the Registration Statement, or
any decrease, as compared with the corresponding period in the preceding
year, in net interest income or in the total or per share amounts of net
income of the Company and its subsidiaries on a consolidated basis, except
in each case as set forth or contemplated in the Registration Statement;
(iv) they have read in the Registration Statement the information in the
table under the caption "Capitalization" and the notes thereto and certain
dollar amounts, percentages and other financial information specified by
the Representatives which is included or incorporated by reference in the
Registration Statement and have performed the procedures set forth in
detail in such letter and have found such amounts, percentages or other
financial information to be in agreement with the relevant accounting and
financial records of the Company and its subsidiaries.
(e) At the time of the execution of this Agreement, the
Representatives shall have received letters dated such date, in form and
substance satisfactory to the Representatives from KPMG Peat Marwick LLP,
to the effect set forth in clauses (i), (ii) and (iii)(C) of paragraph (d)
above with respect to the financial statements of Fairfax incorporated by
reference in the Registration Statement.
(f) At each Closing Date the Representatives shall have received from
Coopers & Xxxxxxx L.L.P. a letter, dated as of such Closing Date, to the
effect that they reaffirm the statements made in the letter furnished
pursuant to paragraph (d) of this Section, except that the "specified date"
referred to shall be a date not more than five days prior to such Closing
Date.
(g) At each Closing Date counsel for the Underwriters shall have been
furnished with such documents, certificates and opinions as they may
reasonably require for the purpose of enabling them to pass upon the
issuance and sale of the Shares as herein contemplated and related
proceedings, or in order to evidence the accuracy of any of the
representations or warranties, or the fulfillment of any of the conditions,
herein contained; and all proceedings taken by the Company in connection
with the issuance and sale of the Shares as herein contemplated shall be
satisfactory in form and substance to you and your counsel.
16
(h) The Nasdaq National Market shall have approved the Shares for
inclusion, subject to official notice of issuance.
If any condition specified in this Section shall not have been
fulfilled when and as required to be fulfilled, this Agreement may be terminated
by the Representatives by notice to the Company at any time at or prior to such
Closing Date, and such termination shall be without liability of any party to
any other party except as provided in Section 9 and except that Sections 6 and 7
hereof shall survive such termination.
SECTION 6. Indemnification.
---------------
(a) The Company agrees to indemnify each Underwriter and hold each
Underwriter and each person, if any, who controls any Underwriter within the
meaning of Section 15 of the Securities Act harmless as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement (or any amendment thereto) or the omission or alleged omission
therefrom of a material fact required to be stated therein or necessary to
make the statements therein not misleading or arising out of any untrue
statement or alleged untrue statement of a material fact contained in any
Preliminary Prospectus or the Prospectus (or any amendment or supplement
thereto) or the omission or alleged omission therefrom of a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever to the extent of the aggregate amount paid in settlement
of any litigation, commenced or threatened, or of any claim whatsoever
based upon any such untrue statement or omission, or any such alleged
untrue statement or omission, if such settlement is effected with the
written consent of the Company, which shall not be unreasonably withheld;
and
(iii) against any and all expense whatsoever (including,
subject to Section 6(c) hereof, the fees and disbursements of counsel
chosen by such Underwriter) reasonably incurred in investigating, preparing
or defending against any litigation, or investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission, to the extent that any such expense
is not paid under (i) or (ii) above;
provided, however, that the Company shall not be liable under this paragraph
--------
6(a) in any case for any loss, liability, claim, damage or expense to the extent
arising out of any untrue statement or omission or alleged untrue statement or
omission made in reliance upon and in conformity with written information
furnished to the Company by any Representative on behalf of the Underwriters
expressly for use in the Registration Statement (or any amendment thereto) or
any Preliminary Prospectus or the Prospectus (or any amendment or supplement
17
thereto); and provided further that as to any Preliminary Prospectus this
----------------
indemnity agreement shall not inure to the benefit of any Underwriter or any
person controlling that Underwriter on account of any loss, liability, claim,
damage or expense arising from the sale of Shares to any person by that
Underwriter if that Underwriter failed to send or give a copy of the Prospectus,
as amended or supplemented at that time, to that person within the time required
by the Securities Act, and the untrue statement or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact in such
Preliminary Prospectus was corrected in the Prospectus as so amended or
supplemented, unless such failure to deliver the Prospectus resulted from non-
compliance by the Company with paragraph 3(d) hereof. For purposes of the last
proviso to the immediately preceding sentence, the term "Prospectus" shall not
be deemed to include the documents incorporated therein by reference, and no
Underwriter shall be obligated to send or give any supplement or amendment to
any document incorporated by reference in any Preliminary Prospectus or the
Prospectus to any person other than a person to whom such Underwriter had
delivered such incorporated document or documents in response to a written
request therefor.
In case of any notice to the Company under this indemnity agreement with respect
to any loss, liability, claim, damage or expense with respect to any claim made
against any Underwriter or any person controlling such Underwriter, the Company
shall be entitled to participate at its own expense in the defense, or if it so
elects within a reasonable time after receipt of such notice, to assume the
defense of any suit brought to enforce any such claim, but if it so elects to
assume the defense, such defense shall be conducted by counsel chosen by it and
reasonably satisfactory to such Underwriter or any person or persons controlling
such Underwriter, defendant or defendants in any suit so brought. In the event
that the Company elects to assume the defense of any such suit and retain such
counsel, such Underwriter or such controlling person or persons, defendant or
defendants in the suit, shall bear the fees and expenses of any additional
counsel thereafter retained by such Underwriter or such controlling person or
persons; provided, however, that, subject to Section 6(c) hereof, any
Underwriter shall have the right to employ counsel to represent such Underwriter
or any person who controls such Underwriter who may be subject to liability
arising out of any action in respect of which indemnity may be sought against
the Company if, in the reasonable judgment of counsel for such Underwriter,
representation of such Underwriter and the Company by the same counsel would be
inappropriate because there may be one or more legal defenses available to such
Underwriter or any such controlling person or persons which are different from
or additional to those available to the Company, in which event the fees and
expenses of appropriate separate counsel shall be borne by the Company.
(b) Each Underwriter agrees, severally and not jointly, to indemnify
and hold harmless the Company, its directors, each of its officers who signed
the Registration Statement and each person, if any, who controls the Company
within the meaning of Section 15 of the Securities Act against any and all loss,
liability, claim, damage and expense described in the indemnity contained in
subsection (a) of this Section, but only arising out of untrue statements or
omissions, or alleged untrue statements or omissions, made in the Registration
Statement (or any amendment thereto) or any Preliminary Prospectus or the
Prospectus (or any amendment or supplement thereto) in reliance upon and in
conformity with written information furnished to the Company by the
Representatives by or on behalf of such
18
Underwriter expressly for use in the Registration Statement (or any amendment
thereto) or such Preliminary Prospectus or the Prospectus (or any amendment or
supplement thereto).
(c) Each indemnified party shall give prompt notice to each
indemnifying party of any action threatened or commenced against it in respect
of which indemnity may be sought hereunder, but failure to so notify an
indemnifying party shall not relieve it from any liability which it may have
otherwise than on account of this indemnity agreement except to the extent that
the indemnifying party has been prejudiced in any material respect by such
failure. An indemnifying party may participate at its own expense in the
defense of such action. In no event shall an indemnifying party be liable for
the fees and expenses of more than one counsel (in addition to local counsel)
separate from their own counsel for all indemnified parties in connection with
any one action or separate but similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances.
(d) The provisions of this Section 6 shall apply only to losses,
liabilities, claims, damages and expenses arising out of the types of untrue
statements or alleged untrue statements or omissions or alleged omissions
described in paragraphs 6(a) and 6(b), respectively. The obligations of the
Company and the Underwriters under this Section 6 shall be in addition to any
liability which the Company or the Underwriters may otherwise have.
SECTION 7. Contribution. If the indemnification provided for in
------------
Section 6 shall for any reason be held to be unenforceable by the indemnified
party under Section 6(a) or 6(b), although applicable in accordance with its
terms, 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 on the one hand and the Underwriters on the
other from the offering of the Shares 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 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 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 Shares purchased under this
Agreement (before deducting expenses) received by the Company bear to the total
underwriting discounts and commissions received by the Underwriters with respect
to the Shares purchased under this Agreement, in each case as set forth in the
table on the cover page of the Prospectus. 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 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. The Company and the Underwriters
agree that it would not be just and equitable if contributions pursuant to this
Section 7 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
19
result of the loss, claim damage or liability, or action in respect thereof,
referred to above in this Section 7 shall be deemed to include, for purposes of
this Section 7, 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 7, no Underwriter
shall be required to contribute any amount in excess of the amount by which the
total price at which the Shares underwritten by it and distributed to the public
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 7 are several in proportion to their
respective underwriting obligations and not joint.
SECTION 8. Representations, Warranties and Agreements to Survive
-----------------------------------------------------
Delivery. All representations, warranties and agreements contained in this
--------
Agreement, or contained in certificates of officers of the Company submitted
pursuant hereto, although speaking only as of the dates at which such
representations, warranties and agreements are made, shall remain operative and
in full force and effect, regardless of any investigation made by or on behalf
of the Underwriters or by or on behalf of any person controlling the
Underwriters, or by or on behalf of the Company, and shall survive delivery of
the Shares to the Underwriters.
SECTION 9. Termination of Agreement. The Representatives may also
------------------------
terminate this Agreement with respect to the Shares to be purchased on a Closing
Date, by notice to the Company, at any time at or prior to such Closing Date (i)
if there has been, since the respective dates as of which information is given
in the Registration Statement, any material adverse change in the condition,
financial or otherwise, of the Company and its subsidiaries considered as one
enterprise, or in the earnings, business affairs or business prospects of the
Company and its subsidiaries considered as one enterprise, whether or not
arising in the ordinary course of business, (ii) if there has occurred any new
outbreak of hostilities or escalation of any existing hostilities or other
calamity or crisis the effect of which on the financial markets of the United
States is such as to make it, in the reasonable professional judgment of the
Representatives, impracticable to market the Shares or to enforce contracts for
the sale of the Shares, (iii) if there shall have occurred such a material
adverse change in general financial, political or economic conditions or the
effect of international conditions on the financial markets in the United States
is such as to make it, in the professional judgment of the Representatives,
impracticable to market the Shares or to enforce contracts for the sale of the
Shares, or (iv) if trading in the securities of the Company has been suspended
by the Commission or if trading or quotation generally on either the New York
Stock Exchange, the American Stock Exchange, or the Nasdaq National Market has
been suspended, or minimum or maximum prices for trading have been fixed, or
maximum ranges for prices for securities have been required, by either of said
Exchanges or the Nasdaq National Market or by order of the Commission or any
other governmental authority, or if a banking moratorium has been declared by
either federal, Pennsylvania or Maryland authorities.
20
If this Agreement is terminated pursuant to any of its provisions, the
Company shall not be under any liability to any Underwriter, and no Underwriter
shall be under any liability to the Company, except that (y) if this Agreement
is terminated by the Representatives or the Underwriters (i) because of any
failure, refusal or inability on the part of the Company to comply with the
terms or to fulfill any of the conditions of this Agreement or (ii) in
accordance with the provisions of clause (i) of the first paragraph of this
Section 9, the Company will reimburse the Underwriters for all out-of-pocket
expenses (including the reasonable fees and disbursements of their counsel)
incurred by them in connection with the proposed purchase and sale of the Shares
or in contemplation of performing their obligations hereunder and (z) no
Underwriter who shall have failed or refused to purchase the Shares agreed to be
purchased by it under this Agreement, without some reason sufficient hereunder
to justify cancellation or termination of its obligations under this Agreement,
shall be relieved of liability to the Company or to the other Underwriters for
damages occasioned by its failure or refusal.
SECTION 10. Default by An Underwriter. If one of the Underwriters
-------------------------
shall fail on any Closing Date to purchase the Shares which it is obligated to
purchase under this Agreement on such Closing Date (the "Defaulted Shares"), the
non-defaulting Underwriters shall have the right, within 24 hours thereafter, to
purchase, or make arrangements for any other underwriters to purchase, all, but
not less than all, of the Defaulted Shares in such amounts as may be agreed upon
and upon the terms herein set forth; if, however, the non-defaulting
Underwriters shall not have completed such arrangements within such 24-hour
period following such Closing Date, then:
(a) if the total number of Defaulted Shares does not exceed 10% of the
total number of Shares that all the Underwriters are obligated to purchase
on such Closing Date then the non-defaulting Underwriters shall be
obligated to purchase the full amount thereof; provided, that in no event
shall the maximum number of Shares that any Underwriter has agreed to
purchase pursuant to Section 2 be increased pursuant to this Section 10 by
more than one-ninth of such number of Shares without the written consent of
such Underwriter, or
(b) if the total number of Defaulted Shares exceeds 10% of the total
number of Shares that all the Underwriters are obligated to purchase on
such Closing Date, this Agreement shall terminate without liability on the
part of the non-defaulting Underwriters.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of such default which does not result in a termination of
this Agreement, either the non-defaulting Underwriters or the Company shall have
the right to postpone such Closing Date for a period not exceeding seven days in
order to effect any required changes in the Prospectus or in any other documents
or arrangements.
SECTION 11. Notices. All notices and other communications hereunder
-------
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any
21
standard form of telecommunication. Notices to the Underwriters shall be
directed to Xxxxxxxxxxx & Co., Inc., Xxxxxxxxxxx Xxxxx, Xxxxx Xxxxxxxxx Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attention of [Xxxxxxx XxXxxxxxxx]; and notices to the
Company shall be directed to it at 00 Xxxxx Xxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxx
00000, Attention of Xxxxxxx X. Xxxxxx, Vice President and Secretary.
SECTION 12. Parties. This Agreement shall inure to the benefit of
-------
and be binding upon the Underwriters and the Company and their respective
successors. Nothing expressed or mentioned in this Agreement is intended or
shall be construed to give any person, firm or corporation, other than the
parties hereto and their respective successors and the controlling persons and
officers and directors referred to in Sections 6 and 7 and their heirs and legal
representatives, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision herein contained. This Agreement and
all conditions and provisions hereof are intended to be for the sole and
exclusive benefit of the parties hereto and their respective successors, and
said controlling persons and officers and directors and their heirs and legal
representatives, and for the benefit of no other person, firm or corporation.
No purchaser of Shares from an Underwriter shall be deemed to be a successor by
reason merely of such purchase.
SECTION 13. GOVERNING LAW AND TIME. THIS AGREEMENT SHALL BE GOVERNED
----------------------
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO
AGREEMENTS MADE AND TO BE PERFORMED IN SAID STATE. SPECIFIED TIMES OF DAY REFER
TO NEW YORK CITY TIME.
22
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us a counterpart hereof, whereupon this
instrument along with all counterparts will become a binding agreement between
the Underwriters and the Company in accordance with its terms.
Very truly yours,
SUSQUEHANNA BANCSHARES, INC.
By:_______________________________
Name:
Title:
Confirmed:
XXXXXXXXXXX & CO., INC.
XXXX XXXXX XXXX XXXXXX, INCORPORATED
XXXXX, XXXXXXXX & XXXXX, INC.
___________________________________
Acting severally on behalf of themselves
and as representatives of the several
Underwriters named in Schedule I annexed
hereto.
By XXXXXXXXXXX & CO., INC.
By___________________________________
Name:
Title:
SCHEDULE I
----------
Number of Firm
Shares to be
Name of Underwriter Purchased
------------------- --------------
Xxxxxxxxxxx & Co., Inc. .............................
Xxxx Xxxxx Xxxx Xxxxxx, Incorporated.................
Xxxxx, Xxxxxxxx & Xxxxx, Inc. .......................
--------------
Total
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