EXHIBIT 1
$12,000,000
FIRST STAR CAPITAL TRUST
% CAPITAL SECURITIES
(Liquidation Amount $__.00 per Capital Security)
Fully Guaranteed by
FIRST STAR BANCORP, INC.
(a Pennsylvania corporation)
AGENCY AGREEMENT
_______________, 1999
Xxxxxx Xxxxxxx, a Division of Xxxxxx Xxxxxxx Incorporated
0000 Xxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxxxxxx 00000-0000
Ladies and Gentlemen:
First Star Bancorp, Inc., a Pennsylvania corporation (the
"Corporation"), and First Star Capital Trust, a business trust organized under
the laws of the State of Delaware (the "Trust"), hereby confirm their agreement
with Xxxxxx Xxxxxxx, a Division of Xxxxxx Xxxxxxx Incorporated ("Xxxxxx Xxxxxxx"
or the "Placement Agent"), effective as of ______________, 1999, with respect to
the issue and sale by the Trust of the ____% Capital Securities, Liquidation
Amount $10.00 per security, described herein (coupon to be determined at a later
date prior to closing) (the "Capital Securities"). As of the date hereof, the
Corporation and the Trust have authorized the issuance and sale of up to
$12,000,000 in aggregate liquidation amount of Capital Securities through the
Placement Agent pursuant to the terms of this Agreement.
The Capital Securities will be issued by the Trust pursuant to (i) the
Amended and Restated Declaration of Trust (the "Declaration") to be dated as of
the Closing Time among the Corporation, as sponsor, Bankers Trust Company
("Delaware"), as Delaware Trustee, Bankers Trust Company, as Property Trustee,
and the Administrative Trustees named therein. The Capital Securities will
evidence preferred beneficial interests in the assets of the Trust. The
Corporation will be the owner of all of the beneficial interests represented by
the common securities of the Trust (the "Common Securities," and together with
the Capital Securities, the "Trust Securities"). The Trust exists for the sole
purpose of issuing the Trust Securities and investing the proceeds thereof in
___% Junior Subordinated Deferrable Interest Debentures (the "Subordinated
Debentures") to be issued by the Corporation pursuant to an Indenture (the
"Indenture") to be dated as of the Closing Time between the Corporation and
Bankers Trust Company as Debenture Trustee. The Subordinated Debentures will
mature on _____________, 2029. Holders of the Trust Securities will be entitled
to receive cumulative cash distributions,
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accumulating from the date of original issuance and payable quarterly in arrears
on _______________, ________________, ________________ and ________________ of
each year, commencing on ________________, 2000, at the annual rate of ____% of
the liquidation amount of $10.00 per Capital Security ("Distributions"). The
Subordinated Debentures will be the sole assets of the Trust and payments under
the Subordinated Debentures will be the sole revenues of the Trust. All of the
Common Securities will be owned directly or indirectly by the Corporation. The
Common Securities will rank pari passu, and payments thereon with be made pro
rata, with the Capital Securities, except that upon the occurrence and during
the continuance of an event of default under the Declaration resulting from a
Debenture event of default under the Indenture, the rights of the Corporation as
holder of the Common Securities to payments in respect of Distributions and
payments upon liquidation, redemption, or otherwise will be subordinated and
rank junior to the rights of holders of the Capital Securities. The Corporation
will, pursuant to: (i) the Declaration; (ii) the Subordinated Debentures; (iii)
the Indenture; and (iv) the Capital Securities Guarantee Agreement to be dated
as of the Closing Time, between the Corporation and Bankers Trust Company as
Guarantee Trustee, relating to the Capital Securities (the "Guarantee"), fully,
irrevocably, and unconditionally guarantee all of the Trust's obligations under
the Capital Securities.
Concurrently with the execution of this Agreement, the Corporation is
delivering to the Placement Agent copies of a Preliminary Prospectus of the
Corporation to be used in the offering of the Capital Securities. The
Corporation will deliver to the Placement Agent copies of a Final Prospectus at
a date mutually agreeable to the Corporation and the Placement Agent. Such
Prospectus contains more detailed information with respect to the offering of
the Capital Securities. Unless otherwise stated herein, the term "Prospectus" is
used in this Agreement to refer to such Preliminary Prospectus and Final
Prospectus, as the same may be amended after it is first provided to the
Placement Agent for such use.
SECTION 1. REPRESENTATIONS AND WARRANTIES OF THE CORPORATION AND THE TRUST.
The Corporation and the Trust, jointly and severally, represent and
warrant to the Placement Agent as of the date hereof as follows:
(a) Copies of the Preliminary Prospectus have been delivered by the
Corporation to the Placement Agent. Copies of the Final Prospectus will be
delivered by the Corporation to the Placement Agent at a date mutually agreeable
to the Corporation and the Placement Agent. As of the date hereof and at the
Closing Time referred to in Section 2 hereof, the Prospectus did not and will
not contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading.
(b) Except as described in the Prospectus, since the respective dates
as of which information is given in the Prospectus, (i) there has not been any
material adverse change, or any development involving a prospective material
adverse change, in the general affairs, business management, financial
condition, or results of operations of the Corporation, the Bank (as hereinafter
defined) and any subsidiary thereof, and (ii) there have been no transactions
entered into by the Corporation or the Bank, other than those in the ordinary
course of business, or otherwise than as set forth or contemplated in the
Prospectus as supplemented or amended as of the Closing Time.
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(c) First Star Savings Bank (the "Bank") and Integrated Financial Corp.
are the only subsidiaries of the Corporation, other than the Trust. The Bank has
no subsidiaries. The Corporation owns all of the outstanding capital stock of
the Bank and Integrated Financial Corp. free and clear of all liens and
encumbrances.
(d) The Corporation is subsisting as a corporation under the laws of
the Commonwealth of Pennsylvania with corporate power and authority to own,
lease and operate its properties and to conduct its business as described in the
Prospectus and to enter into and perform its obligations under this Agreement;
the Corporation is duly qualified as a foreign corporation to transact business
and is in good standing in all jurisdictions in which such qualification is
required, whether by reason of the ownership or leasing of property or the
conduct of business, except where the failure to so qualify would not have a
material adverse effect on the financial condition, results of operations or
business of the Corporation and its subsidiaries, taken as a whole. The
Corporation is a bank holding company and is registered as such under the Bank
Holding Company Act of 1956, as amended.
(e) The Bank is subsisting as a Pennsylvania chartered stock savings
bank, with full corporate power and authority to own, lease and operate its
properties and to conduct its business as described in the Prospectus and is
qualified to do business in any jurisdiction in which the failure to so qualify
would have a material adverse effect on the financial condition, results of
operations or business of the Bank. The Bank is a member of the Federal Home
Loan Bank of Pittsburgh.
(f) Each of the Corporation and the Bank have obtained all licenses,
permits and other governmental authorizations currently required for the conduct
of their respective businesses, except where the failure to obtain such
licenses, permits or other governmental authorizations would not have a material
adverse effect on the financial condition, results of operations or business of
the Corporation and the Bank taken as a whole; all such licenses, permits and
other governmental authorizations are in full force and effect and the
Corporation and the Bank are in all material respects in compliance therewith;
neither the Corporation nor the Bank has received notice of any proceeding or
action relating to the revocation or modification of any such license, permit or
other governmental authorization which, singly or in the aggregate, is the
subject of an unfavorable decision, ruling or finding, which might have a
material adverse effect on the financial condition, results of operations or
business of the Corporation and the Bank taken as a whole.
(g) The activities of the Bank are permitted by the rules, regulations,
resolutions and practices of the Board of Governors of the Federal Reserve
System ("FRB"), the Federal Deposit Insurance Corporation ("FDIC") and the
Pennsylvania Department of Banking (the "Department"); all of the issued and
outstanding capital stock of the Bank has been duly authorized and validly
issued, is fully paid and nonassessable and is owned by the Corporation, free
and clear of any security interest, mortgage, pledge, lien, encumbrance, claim
or equitable claim.
(h) The deposit accounts of the Bank are insured by the Savings
Association Insurance Fund (the "SAIF") of the FDIC up to the applicable limits.
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(i) Upon consummation of the offering, the authorized, issued and
outstanding capitalization of the Corporation will be as set forth in the
Prospectus under "Capitalization".
(j) None of the Capital Securities have been or will be issued and
outstanding prior to the Closing Time referred to in Section 2; at the Closing
Time, the Capital Securities will have been duly authorized for issuance and,
issued, authenticated and delivered pursuant to the provisions of this
Agreement, the Declaration and the Indenture against payment of the
consideration therefor, will constitute valid and legally binding obligations of
the Trust; the terms and provisions of the Capital Securities in all material
respects conform to all statements relating thereto contained in the Prospectus;
the certificates representing the shares of Capital Securities in all material
respects will conform with any applicable requirements of Delaware law; and the
issuance of the Capital Securities is not subject to preemptive or other similar
rights.
(k) The Corporation and the Trust have taken all corporate or trust
action, as the case may be, necessary for them to execute, deliver and perform
this Agreement, and this Agreement has been duly executed and delivered by, and
is the valid and binding agreement of, the Corporation and the Trust,
enforceable in accordance with its terms, except as may be limited by
bankruptcy, insolvency or other laws affecting the enforceability of the rights
of creditors generally and judicial limitations on the right of the specific
performance and except as the enforceability of indemnification and contribution
provisions may be limited by applicable securities laws.
(l) The Corporation has taken all corporate action necessary for it to
execute, deliver and perform; (i) the Indenture; (ii) the Declaration; (iii) the
Subordinated Debentures and (iv) the Guarantee (together, the "Constituent
Documents"), and the Constituent Documents have been duly executed and delivered
by, and are the valid and binding agreements of, the Corporation, enforceable in
accordance with their terms, except as may be limited by bankruptcy, insolvency
or other laws affecting the enforceability of the rights of creditors generally
and judicial limitations on the right of specific performance and except as the
enforceability of indemnification and contribution provisions may be limited by
applicable securities laws.
(m) Subsequent to the respective dates as of which information is given
in the Prospectus and prior to the Closing Time, except as otherwise may be
indicated or contemplated therein, none of the Corporation, the Bank or the
Trust will have (i) issued any securities or incurred any liability or
obligation, direct or contingent, for borrowed money, except deposits or other
borrowings in the ordinary course of business from the same or similar sources
and in similar amounts indicated in the Prospectus, or (ii) entered into any
transaction or series of transactions which is material in light of the business
of the Corporation, the Bank and the Trust, taken as a whole, excluding the
origination, purchase and sale of loans or the purchase or sale of investment
securities or mortgaged-backed securities in the ordinary course of business.
(n) No approval of any regulatory or supervisory or other public
authority is required in connection with the execution and delivery of this
Agreement or the issuance of the Capital Securities which has not been obtained
and a copy of which has been delivered to the Placement Agent, except as may be
required under the securities laws of various jurisdictions.
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(o) Neither the Corporation nor the Bank is in violation of its charter
or bylaws; the Trust is not in violation of its certificate of trust; and
neither the Corporation, the Bank nor the Trust is in default (nor has any event
occurred which, with notice or lapse of time or both, would constitute a
default) in the performance or observance of any obligation, agreement, covenant
or condition contained in any contract, indenture, mortgage, loan agreement,
note, lease or other instrument to which the Corporation, the Bank or the Trust
is a party or by which it or any of them may be bound, or to which any of the
property or assets of the Corporation, the Bank or the Trust is subject, except
for such defaults that would not, individually or in the aggregate, have a
material adverse effect on the financial condition, results of operations or
business of the Corporation, the Bank and the Trust, taken as a whole.
(p) The execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated herein do not and will not
conflict with or constitute a breach of, or default under, or result in the
creation or imposition of any lien, charge or encumbrance upon any property or
assets of the Corporation, the Bank or the Trust pursuant to any contract,
indenture, mortgage, loan agreement, note, lease or other instrument to which
the Corporation, the Bank or the Trust is a party or by which it or any of them
may be bound, or to which any of the property or assets of the Corporation, the
Bank or the Trust is subject, except for such defaults that would not,
individually or in the aggregate, have a material adverse effect on the
financial condition, results of operations or business of the Corporation, the
Bank and the Trust, taken as whole, nor will such action result in any violation
of the provisions of the charter or other organizational document or by-laws of
the Corporation, the Bank or the Trust, or any applicable law, regulation or
administrative or court decree.
(q) No labor dispute with the employees of the Corporation or the Bank
exists or, to the knowledge of the Corporation or the Bank, is imminent or
threatened.
(r) The Corporation and the Bank have good and marketable title to all
properties and assets for which ownership is material to the business of the
Corporation or the Bank and to those properties and assets described in the
Prospectus as owned by them, free and clear of all liens, charges, encumbrances
or restrictions, except such as are described in the Prospectus or are not
material in relation to the business of the Corporation and the Bank taken as a
whole; and all of the leases and subleases material to the business of the
Corporation and the Bank taken as a whole under which the Corporation or the
Bank hold properties, including those described in the Prospectus, are valid and
binding agreements of the Corporation or the Bank, enforceable in accordance
with their terms, subject, as to enforceability, to bankruptcy, insolvency,
reorganization, moratorium and other laws of general applicability relating to
or affecting creditors' rights, and to general principles of equity.
(s) Neither the Corporation nor the Bank is in violation of any
directive from the FRB, the FDIC or the Department to make any material change
in the method of conducting their respective businesses; the Bank has conducted
and is conducting its business so as to comply with all applicable statutes,
regulations and administrative and court decrees (including, without limitation,
all regulations, decisions, directives and orders of the FRB, the FDIC or the
Department) except in such respects as would not have a material adverse effect
upon the Corporation and the Bank taken as a whole.
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(t) There is no action, suit or proceeding before or by any court or
governmental agency or body, domestic or foreign, now pending, or, to the
knowledge of the Corporation or the Bank, threatened, against or affecting the
Corporation, the Bank or the Trust (other than as disclosed in the Prospectus)
which might result in any material adverse change in the financial condition,
results of operations or business of the Corporation, the Bank and the Trust,
taken as a whole, or which might materially and adversely affect the properties
or assets thereof or which might materially and adversely affect the
consummation of the offering; all pending legal or governmental proceedings to
which the Corporation, the Bank or the Trust is a party or of which any of their
respective property or assets is the subject which are not described in the
Prospectus, including ordinary routine litigation incidental to the business,
are, in the aggregate, not material.
(u) Neither the Corporation nor the Trust are required to be registered
under the Investment Company Act of 1940, as amended.
(v) All of the loans represented as assets on the most recent financial
statements or selected financial information of the Bank included or
incorporated by reference in the Prospectus meet or are exempt from all
requirements of federal, state or local law pertaining to lending, including
without limitation truth in lending, real estate settlement procedures, consumer
credit protection, equal credit opportunity and all disclosure laws applicable
to such loans, except for violations which, if asserted, would not result in a
material adverse effect on the financial condition, results of operations or
business of the Corporation and the Bank taken as a whole.
(w) Neither the Corporation nor the Bank nor any properties owned or
operated by the Corporation or the Bank nor, to the Corporation's knowledge, any
properties leased by the Corporation or the Bank is in violation of or liable
under any Environmental Law (as defined below), except for such violations or
liabilities that, individually or in the aggregate, would not have a material
adverse effect on the business, financial condition or results of operations of
the Corporation and the Bank taken as a whole. There are no actions, suits or
proceedings, or demands, claims, or notices (including, without limitation,
notices, demand letters or requests for information from any environmental
agency) instituted or pending, or to the knowledge of the Corporation or the
Bank threatened, relating to the liability of any property owned or operated by
the Corporation or the Bank, under any Environmental Law. For purposes of this
subsection, the term "Environmental Law" means any federal, state, local or
foreign law, statute, ordinance, rule, regulation, code, license, permit,
authorization, approval, consent, order, judgment, decree, injunction or
agreement with any regulatory authority relating to (i) the protection,
preservation or restoration of the environment (including, without limitation,
air, water, vapor, surface water, groundwater, drinking water supply, surface
soil, subsurface soil, plant and animal life or any other natural resource),
and/or (ii) the use, storage, recycling, treatment, generation, transportation,
processing, handling, labeling, production, release or disposal of any substance
presently listed, defined, designated or classified as hazardous, toxic,
radioactive or dangerous, or otherwise regulated, whether by type or by
quantity, including any material containing any such substance as a component.
(x) The Corporation and the Bank, and all subsidiaries thereof, have
filed all federal and state income tax returns required to be filed, and have
filed all state and local franchise tax returns required to be filed except for
such omissions as would not individually or in the aggregate have a material
adverse impact on the financial condition or results of operations of
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the Corporation or the Bank and have made timely payments of all taxes shown as
due and payable in respect of such returns, and no deficiency has been asserted
with respect thereto by any taxing authority.
(y) Any certificate signed by any officer of the Corporation or the
Bank or an administrator of the Trust and delivered to either of the Placement
Agent or counsel for the Placement Agent shall be deemed a representation and
warranty by the Corporation, or Bank or the Trust to each as to the matters
covered thereby.
(z) The Constituent Documents and the Capital Securities conform in all
material respects to the descriptions thereof contained in the Prospectus.
(aa) The Corporation and the Trust have filed with the Securities and
Exchange Commission (the "Commission") a registration statement on Form S-B2
(Nos. 333-_____ and 333-_____) and a related preliminary prospectus for the
registration of the Preferred Securities, the Guarantee and the Subordinated
Debentures under the Securities Act of 1933, as amended (the "Securities Act"),
and the rules and regulations thereunder (the "Securities Act Regulations"). The
Corporation and the Trust have 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 Prospectus 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 Corporation files a post-effective
amendment to such registration statement which becomes effective prior to the
Closing Time (as defined below), "Registration Statement" shall refer to such
registration statement as so amended.
(bb) The Commission has not issued any order preventing or suspending
the use of any Preliminary Prospectus, and each Preliminary Prospectus complies
in all material respects with the requirements of the Securities Act and the
Securities Act Regulations. As of the effective date of the Registration
Statement, and at all times subsequent thereto up to the Closing Time, the
Registration Statement and the Prospectus, and any amendments or supplements
thereto, contained or will contain all material statements that are required to
be stated therein in accordance with the Securities Act and the Securities Act
Regulations and conformed or will conform in all material respects to the
requirements of the Securities Act and the Securities Act Regulations, and
neither the Registration Statement nor the Prospectus, nor any amendment or
supplement thereto included or will include any untrue statement of a material
fact or omitted or will omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading; provided,
however, that no representation or warranty is made as to information contained
in or omitted from the Registration Statement, the Prospectus or any amendment
or supplement in reliance upon and in conformity with written information
furnished to the Company and the Trust by or on behalf of the Underwriters.
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SECTION 2. APPOINTMENT OF XXXXXX XXXXXXX; SALE AND DELIVERY OF THE SECURITIES;
CLOSING.
(a) On the basis of the representations and warranties herein contained
and subject to the terms and conditions herein set forth, the Corporation and
the Trust hereby appoint Xxxxxx Xxxxxxx as its Placement Agent to assist in the
solicitation of subscriptions and purchase orders for Capital Securities on
behalf of the Corporation and the Trust, in connection with the Trust's sale of
the Capital Securities. On the basis of the representations and warranties
herein contained, and subject to the terms and conditions herein set forth,
Xxxxxx Xxxxxxx accepts such appointment and agrees to use its best efforts to
assist the Corporation and the Trust with the solicitation of subscriptions and
purchase orders for Capital Securities in accordance with this Agreement;
provided, however, that the Placement Agent shall not be obligated to take any
action which is inconsistent with any applicable laws, regulations, decisions or
orders. The services to be rendered by Xxxxxx Xxxxxxx pursuant to this
appointment include the following: (i) consulting with the Corporation as to the
securities marketing implications of any aspect of the offering of the Capital
Securities; (ii) reviewing the Prospectus and related offering materials (it
being understood that preparation and filing of such documents is the sole
responsibility of the Corporation and the Trust and their counsel); (iii)
assisting in the design and implementation of a marketing strategy for the
offering of the Capital Securities; (iv) assisting Corporation management in
preparing for meetings with potential investors and broker-dealers; and (v)
providing such other general advice and assistance as may be reasonably
requested to promote the completion of the offering of the Capital Securities.
The Corporation and the Trust agree that, during the period the Placement Agent
is acting hereunder, unless otherwise agreed in writing, the Corporation and the
Trust will not appoint any other agent or agents in connection with the
placement of the Capital Securities.
(b) The appointment of the Placement Agent hereunder shall terminate
upon the earliest to occur of (i) five (5) business days after the Closing Time,
unless the Corporation, the Trust and the Placement Agent agree in writing to
extend such period, or (ii) the receipt and acceptance of subscriptions and
purchase orders for all of the Capital Securities and payment to the Placement
Agent of all compensation payable hereunder.
(c) The Placement Agent, acting solely as agent for the Corporation and
the Trust and not as principal, will solicit purchases of the Capital
Securities. The Placement Agent will communicate to the Corporation, orally,
each offer to purchase Capital Securities solicited by the Placement Agent on an
agency basis, other than those offers rejected by the Placement Agent. The
Placement Agent shall have the right, in its discretion reasonably exercised, to
reject any proposed purchase of Capital Securities, as a whole or in part, and
any such rejection shall not be deemed a breach of the Placement Agent's
agreement contained herein. The Corporation, on behalf of the Trust, may accept
or reject any proposed purchase of Capital Securities in whole or in part. The
Placement Agent shall make reasonable efforts to assist the Corporation in
obtaining performance by each purchaser whose offer to purchase Capital
Securities has been solicited by the Placement Agent and accepted by the
Corporation. The Placement Agent shall have no liability to the Corporation in
the event any such purchase is not consummated for any reason. If the
Corporation shall default on its obligation to deliver Capital Securities to a
purchaser whose offer it has accepted, the Corporation shall (i) hold the
Placement Agent harmless against any loss, claim or damage arising from or as a
result of such default by the Corporation and (ii)
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notwithstanding such default, pay to the Placement Agent any commission to which
it would be entitled in connection with such sale.
(d) In the event the Trust is unable to sell $12,000,000, or such
lesser amount as shall be acceptable to the Corporation, in aggregate
liquidation amount of Capital Securities prior to _____________, 1999, or such
later date as to which the Corporation shall extend the offering, this Agreement
shall terminate and the Trust shall refund or cause its escrow agent to refund
to any persons who have subscribed for any of the Capital Securities the full
amount which it may have received from them, and no party to this Agreement
shall have any obligation to the others hereunder, except for the obligations of
the Corporation and the Bank as set forth in Sections 4, 6(a) and 7 hereof and
the obligations of the Placement Agent as provided in Sections 6(b) and 7
hereof.
(e) The Trust agrees to issue or have issued the Capital Securities
sold and to release for delivery certificates for such Capital Securities at the
Closing Time against payment therefor. The closing shall be held at the offices
of Xxxxxxx & Xxx, Valley Forge, Pennsylvania, or at such other place and time as
shall be agreed upon by the parties hereto, on a business day to be agreed upon
by the parties hereto. Certificates for Capital Securities shall be delivered
directly to the purchasers thereof in accordance with their written directions.
The hour and date upon which the Trust shall release for delivery all of the
Capital Securities, in accordance with the terms hereof, are herein called the
"Closing Time."
(f) The Corporation will pay any stock issue and transfer taxes which
may be payable with respect to the sale of the Capital Securities.
(g) In addition to reimbursement of the expenses specified in Section 4
hereof, the Placement Agent will receive $0.35 for each Capital Security sold
and an advisory fee of $25,000 if the Offering is completed.
All amounts payable to the Placement Agent hereunder shall be
payable in immediately available funds at Closing Time, or upon the termination
of this Agreement, as the case may be.
(h) If this Agreement is terminated by the Placement Agent in
accordance with the provisions of Section 9(a) hereof, no fees shall be payable
by the Corporation hereunder; however, the Corporation shall reimburse Xxxxxx
Xxxxxxx for its reasonable out-of-pocket expenses incurred in connection with
its engagement hereunder in accordance with Section 4 hereof.
(i) The Corporation, the Trust and the Placement Agent agree that any
Capital Securities the placement of which the Placement Agent arranges shall be
placed by the Placement Agent in reliance on the representations, warranties,
covenants and agreements of the Corporation and the Trust contained herein and
on the terms and conditions and in the manner provided herein.
Attached hereto as Exhibit A is a copy of the Escrow Agreement to be
dated _________________, 1999, (the "Escrow Agreement") between _______________
(the "Escrow Agent"), Xxxxxx Xxxxxxx, the Corporation and the Trust, pursuant to
which
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_________________________________ shall act as escrow agent with respect to the
deposit of funds from subscribers for the Capital Securities. In accordance with
the terms of the Escrow Agreement, the Escrow Agent shall deliver to the Trust
the proceeds of the offering of Capital Securities upon receiving joint written
instructions from the Company, the Trust and the Placement Agent that a closing
has occurred.
SECTION 3. COVENANTS OF THE CORPORATION AND THE TRUST.
The Corporation and the Trust covenant with the Placement Agent as
follows:
(a) The Corporation and the Trust will prepare such amendments or
supplements to the Prospectus, as may hereafter be reasonably requested by the
Placement Agent. The Corporation and the Trust will give the Placement Agent
notice of their intention to prepare any amendment to the Prospectus, will
furnish the Placement Agent with copies of any such amendment or supplement a
reasonable amount of time prior to such proposed use, and will not use any such
Prospectus to which the Placement Agent or counsel for the Placement Agent may
reasonably object.
(b) The Corporation and the Trust will deliver to the Placement Agent
as many copies of the Prospectus and of each amendment thereto as the Placement
Agent may reasonably request, and from time to time such number of copies of the
Prospectus as the Placement Agent may reasonably request.
(c) If any event or circumstance shall occur as a result of which it is
necessary, in the opinion of counsel for the Placement Agent, 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 Corporation and the Trust will forthwith amend or supplement the Prospectus
(in form and substance reasonably satisfactory to counsel for the Placement
Agent) so that, as so amended or supplemented, the Prospectus will not include
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, and the Corporation and the Trust will furnish to the Placement
Agent a reasonable number of copies of such amendment or supplement. For the
purpose of this subsection, the Corporation and the Trust will each furnish such
information with respect to itself as the Placement Agent may from time to time
reasonably request.
(d) The Corporation and the Trust will take all necessary action to
qualify the Capital Securities for offering and sale under the applicable
securities laws of such states of the United States and other jurisdictions as
may be required by such state securities laws, and as the Placement Agent and
the Corporation have agreed, or to obtain exemption from the qualification
requirements of such laws; provided, however, that the Corporation and the Trust
shall not be obligated to file any general consent to service of process or to
qualify as a foreign corporation in any jurisdiction in which it is not so
qualified. In each jurisdiction in which the Capital Securities have been so
qualified or exempted, the Corporation and the Trust will file such statements
and reports as may be required by the laws of such jurisdiction to continue such
qualification or exemption, as the case may be, until completion of the
offering.
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(e) The Trust will use the proceeds of the offering of the Capital
Securities to purchase the Junior Subordinated Debentures in the manner
described in the Prospectus.
(f) The Corporation will use the net proceeds received by it from the
sale of the Subordinated Debentures in the manner specified in the Prospectus
under "Use of Proceeds."
(g) If any information shall have been omitted from the Registration
Statement in reliance upon Rule 430A, the Corporation, at the earliest possible
time, will furnish the Placement Agent with copies of the Prospectus to be filed
by the Corporation with the Commission to comply with Rule 424(b) and Rule 430A
under the Securities Act, and will file such Prospectus with the Commission in
compliance with such Rules. Upon compliance with such Rules, the Corporation
will so advise the Placement Agent promptly. The Corporation will advise the
Placement Agent and its counsel promptly of the issuance by the Commission of
any stop order suspending the effectiveness of the Registration Statement or of
the institution of any proceedings for that purpose, or of any notification
received by the Corporation of the suspension of qualification of the Preferred
Securities for sale in any jurisdiction or the initiation or threatening of any
proceedings for that purpose, or of any notification received by the Corporation
of the suspension of qualification of the Preferred Securities for sale in any
jurisdiction or the initiation or threatening of any proceedings for that
purpose. The Corporation also will advise the Placement Agent and its counsel
promptly of any request of the Commission for amendment or supplement of the
Registration Statement, of any Preliminary Prospectus, or of the Prospectus, or
for additional information, and the Corporation will not file any amendment or
supplement to the Registration Statement (either before or after it becomes
effective), to any Preliminary Prospectus, or to the Prospectus (including a
prospectus filed pursuant to Rule 424(b)) if the Placement Agent has not been
furnished with copies prior to such filing or if the Placement Agent reasonably
objects to such filing.
(h) For the period during which a Prospectus relating to the Preferred
Securities is required to be delivered under the Securities Act, the Corporation
shall comply with all requirements imposed on it by the Securities Act, as now
and hereafter amended, and by the Securities Act Regulations, as from time to
time in force, so far as is necessary to permit the continuance of sales or
dealings in the Preferred Securities as contemplated by the provisions hereof
and the Prospectus. If any event occurs as a result of which the Prospectus,
including any subsequent amendment or supplement, would include an untrue
statement of a material fact, or would omit 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 if it
becomes necessary at any time to amend the Prospectus, including any amendment
or supplement thereto, to comply with the Securities Act, the Corporation
promptly will advise the Placement Agent and its counsel thereof and the
Corporation will promptly prepare and file with the Commission an amendment or
supplement that will correct such statement or omission or an amendment that
will effect such compliance.
(i) The Corporation will make generally available to its security
holders and the Placement Agent an earnings statement of the Corporation as soon
as practicable, but in no event later than fifteen (15) months after the end of
the Corporation's current fiscal quarter, covering a period of twelve (12)
consecutive calendar months beginning after the effective date of the
Registration Statement, but beginning not later than four (4) months after such
effective date,
11
which will satisfy the provisions of the last subsection of Section 11(a) of the
Securities Act and Rule 158 promulgated thereunder.
(j) During such period as a prospectus is required by law to be
delivered in connection with sales by an underwriter or dealer, the Corporation
will furnish to the Placement Agent, at the expense of the Corporation, copies
of the Registration Statement, the Prospectus, any Preliminary Prospectus, and
all amendments and supplements to any such documents, in each case as soon as
available and in such quantities as the Placement Agent may reasonably request,
for the purposes contemplated by the Securities Act.
SECTION 4. PAYMENT OF EXPENSES.
(a) The Corporation agrees to pay all reasonable expenses incident to
the performance of its and the Trust's obligations under this Agreement,
including but not limited to (i) the preparation, issuance and delivery of the
certificates for the Capital Securities to the purchasers in the offering, (ii)
the fees and disbursements of the Corporation's and the Trust's counsel,
accountants, and other advisors, (iii) the filing of all notices with the
Commission and qualification of the Capital Securities under securities laws in
accordance with the provisions of Section 3(d) hereof, including filing fees and
the fees and disbursements of counsel to the Corporation and the Trust in
connection therewith and in connection with the preparation of a blue sky
survey, and (iv) the printing and delivery of copies of the Prospectus and any
amendments or supplements thereto to the purchasers in the offering and the
Placement Agent.
(b) In the event the offering is not consummated for any reason
whatsoever, the Corporation agrees to pay certain expenses incident to the
performance of the Placement Agent's obligations under this Agreement up to a
maximum reimbursement amount of $40,000 in the aggregate, including all
reasonable out-of-pocket expenses incurred by the Placement Agent relating to
the offering of the Capital Securities, including, without limitation,
advertising, promotional, and travel expenses, provided that the Placement Agent
shall document all such expenses to the reasonable satisfaction of the
Corporation. The provisions of this paragraph are not intended to apply to or in
any way impair the indemnifications provisions contained in this Agreement. All
fees and expenses to which the Placement Agent is entitled to reimbursement
under this Section 4(b) shall be due and payable upon receipt by the Corporation
of a written accounting therefor setting forth in reasonable detail the expenses
incurred by the Placement Agent.
SECTION 5. CONDITIONS OF PLACEMENT AGENT'S OBLIGATIONS.
(a) The Corporation, the Trust and the Placement Agent agree that the
issuance and sale of the Capital Securities and the obligations of the Placement
Agent hereunder are subject to the accuracy of the representations and
warranties of the Corporation and the Trust herein contained as of the date
hereof and the Closing Time, to the accuracy of the statements of officers and
directors of the Corporation and the Trust made pursuant to the provisions
hereof, to the performance by the Corporation and the Trust of their obligations
hereunder, and to the following further conditions.
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(b) At the Closing Time referred to in Section 2, the Corporation and
the Trust will have completed in all material respects the conditions precedent
to the offering and all applicable laws, regulations, decisions and orders.
(c) At Closing Time, the Placement Agent shall have received:
The favorable opinion, dated as of Closing Time, of Xxxxxxx
Xxxxx & Xxxxx, PC ("Xxxxxxx & Spidi"), counsel for the Corporation and the
Trust, in form and substance reasonably satisfactory to counsel for the
Placement Agent, and substantially to the effect that:
(A) Based on a recently dated subsistence certificate for the
Corporation issued by the Department of State, the Corporation is subsisting as
a corporation under the laws of the Commonwealth of Pennsylvania, and has
requisite corporate power and authority to own, lease and operate its properties
and to conduct its business as described in the Prospectus and to enter into and
perform its obligations under this Agreement, and, to such counsel's knowledge,
the Corporation has not failed to qualify as a foreign corporation in any other
jurisdiction, in which failure to so qualify would have a materially adverse
effect on the Corporation or any property it owns, leases or operates or the
conducting of its business.
(B) The Capital Securities and the Subordinated Debentures, have been
duly authorized for issuance, offer and sale and, when issued, authenticated and
delivered pursuant to the provisions of this Agreement, the Declaration and the
Indenture against payment of the consideration therefor, will constitute valid
and legally binding obligations of the Trust or Corporation, as the case may be,
enforceable against them in accordance with their terms except as enforcement
thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or
other laws relating to or affecting enforcement of creditors' rights generally,
or by general equity principles (whether considered in a proceeding in equity or
at law) and based on the assumptions of such counsel that the holders of Capital
Securities and the Subordinated Debentures, in exercising any rights and
remedies under the Capital Securities or Subordinated Debentures, be required to
act in good faith and in a commercially reasonable manner.
(C) The Constituent Documents have been duly and validly authorized,
executed and delivered by the Corporation and (assuming the Constituent
Documents have been duly authorized, executed and delivered by the other parties
thereto) constitute legal, valid, and binding agreements of the Corporation,
enforceable in accordance with their terms, except as enforcement thereof may be
limited by bankruptcy, insolvency, reorganization, moratorium or other laws
relating to or affecting enforcement of creditors' rights generally, or by
general equity principles (whether considered in a proceeding in equity or at
law). Such opinions may be based on assumptions of such counsel that the holders
of Capital Securities and the Subordinated Debentures, in exercising any rights
and remedies under the Capital Securities or Subordinated Debentures, be
required to act in good faith and in a commercially reasonable manner. Such
counsel need not give any opinion on the enforceability of any indemnity or
contribution right provided for in the Constituent Documents.
13
(D) Based on a recently dated certificate from the Department of
Banking, the Bank is subsisting under the laws of the Commonwealth of
Pennsylvania as a Pennsylvania chartered stock savings bank with full corporate
power and authority to own, lease and operate its properties and to conduct its
business as described in the Prospectus; and the Bank is duly qualified as a
foreign corporation in each jurisdiction in which it owns or leases property or
conducts business.
(E) All of the issued and outstanding capital stock of the Bank is duly
authorized and validly issued and fully paid and nonassessable, and all such
capital stock is owned of record by the Corporation and, to such counsel's
actual knowledge, free and clear of any security interest, mortgage, pledge,
lien, encumbrance or claim.
(F) The execution and delivery of this Agreement and the consummation
of the transactions contemplated hereby have been duly and validly authorized by
all necessary corporate or trust action on the part of each of the Corporation
and the Trust, and this Agreement constitutes the legal, valid and binding
agreement of each of the Corporation and the Trust, enforceable in accordance
with its terms, except as rights to indemnity and contribution hereunder may be
limited under applicable law (it being understood that such counsel may avail
itself of customary exceptions concerning the effect of bankruptcy, insolvency
or similar laws and the availability of equitable remedies); and, to the actual
knowledge of such counsel, the execution and delivery of this Agreement and the
Constituent Documents, the incurrence of the obligations herein set forth and
the consummation of the transactions contemplated herein and therein by the
Corporation and the Trust will not conflict with or constitute a breach of, or
default under any material agreement to which the Corporation and the Trust is a
party nor will such execution or delivery result in any violation of the
provisions of the Constituent Documents.
(G) No further approval, authorization, consent or other order of any
public board or body is required in connection with the execution and delivery
of this Agreement, the issuance of the Capital Securities and the consummation
of the offering, except as may be required under the securities or Blue Sky laws
of various jurisdictions as to which no opinion need be rendered.
(H) The Registration Statement was declared effective under the
Securities Act as of the date and time specified in such opinion and, to 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.
(I) The Registration Statement and the Prospectus and any amendment or
supplement thereto made by the Company prior to the Closing Time (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 the Closing
Time, complied as to form in all material respects with the requirements of the
Securities Act, the Trust Indenture Act and the applicable rules and regulations
under said acts, and such counsel has no reason to believe that: (i) the
Registration Statement (other than the financial
14
statements and financial and statistical data included therein, as to which no
opinion need be rendered), at the time it became effective, contained any untrue
statement of a material fact or omitted to state a material fact necessary in
order to make the statements contained therein, not misleading, or (ii) the
Prospectus (other than the financial statements and financial and statistical
data included therein, as to which no opinion need be rendered), at the time it
was filed with the Commission or at the Closing Time, contained any untrue
statement of a material fact or omitted to state a material fact necessary in
order to make the statements contained therein, in the light of the
circumstances under which they were made, not misleading.
(J) The description of the Capital Securities and the Subordinated
Debentures contained in the Prospectus is accurate in all material respects and
the form of certificate used to evidence the Capital Securities and the
Subordinated Debentures are in due and proper form and comply with all
applicable statutory requirements.
(d) Xxxxxxx & Spidi shall additionally state that nothing has come to
their attention that would lead them to believe that the Prospectus (except for
financial or statistical data included therein, as to which counsel need make no
statement), contained an untrue statement of a material fact or omitted to state
a material fact required to be stated therein or necessary to make the
statements therein not misleading or that the Prospectus (except for the
financial or statistical data included therein, as to which counsel need make no
statement), included an untrue statement of a material fact or omitted to state
a material fact necessary in order to make the statements therein, in the light
of the circumstances under which they are made, not misleading. Xxxxxxx & Spidi
may state that, without limiting the generality of the foregoing, it assumes no
responsibility for the accuracy, completeness or fairness of any statements
contained in the Prospectus, other than statements insofar as they relate to
legal matters under the captions "Description of Capital Securities,"
"Description of Guarantee," "Description of Subordinated Debentures" and
"Relationship Among the Capital Securities, the Subordinated Debentures and the
Guarantee." Such statement by Xxxxxxx & Xxxxx shall not constitute an opinion or
guarantee that no such fact exists. In giving their opinions, Xxxxxxx & Xxxxx
may rely as to matters of fact on certificates of officers and directors of the
Corporation and the Bank, administrators of the Trust and certificates of public
officials, which opinions shall be in form and substance satisfactory to the
Placement Agent. Certain matters identified above which are governed by Delaware
law may be addressed in an opinion of Xxxxxxxx, Xxxxxx & Xxxxxx, rather than
Xxxxxxx & Xxxxx.
(e) At Closing Time, there shall not have been, since the date hereof
or since the respective dates as of which information is given in the
Prospectus, any material adverse change in the financial condition, results of
operations, or business of the Corporation and the Bank taken as a whole,
whether or not arising in the ordinary course of business, and the Placement
Agent shall have received a certificate of the Chief Executive Officer of the
Corporation and of the Bank and the chief financial or chief accounting officer
of the Corporation and of the Bank, dated as of Closing Time, to the effect that
(i) there has been no such material adverse change, (ii) there shall have been
no material transaction entered into by the Corporation or the Bank from the
latest date as of which the financial condition of the Corporation or the Bank
as set forth in the Prospectus other than transactions referred to or
contemplated therein and transactions in the ordinary course of business, (iii)
neither the Corporation nor the Bank shall have received from any regulatory
agency any direction (oral or written) to make any material change in the
15
method of conducting its business with which it has not complied (which
direction, if any, shall have been disclosed to the Placement Agent) or which
materially and adversely would affect the financial condition, results of
operations or business of the Corporation or the Bank taken as a whole, (iv) the
representations and warranties in Section 1 hereof are true and correct with the
same force and effect as though expressly made at and as of the Closing Time,
and (v) the Corporation and the Trust have complied with all agreements and
satisfied all conditions on their part to be performed or satisfied at or prior
to Closing Time.
(f) The Registration Statement and all post-effective amendments
thereto shall have been declared effective by the Commission no later than 5:30
p.m. Eastern Time, on the date of this Agreement, or such later time as shall
have been consented to by the Placement Agent, but in any event not later than
5:30 p.m., Eastern Time, on the third full business day following the date
hereof; if the Corporation omitted information from the Registration Statement
at the time it became effective in reliance on Rule 430A under the Securities
Act, the Prospectus shall have been filed with the Commission in compliance with
Rule 424(b) and Rule 430A under the Securities Act; no stop order suspending the
effectiveness of the Registration Statement or any amendment or supplement
thereto shall have been issued; no proceeding for the issuance of such an order
shall have been initiated or shall be pending or, to the knowledge of the
Corporation or the Placement Agent, threatened or contemplated by the
Commission; and any request of the Commission for additional information (to be
included in the Registration Statement or the Prospectus or otherwise) shall
have been disclosed to the Placement Agent and complied with to the Placement
Agent's satisfaction.
(g) At the time this Agreement is executed and also on the day of the
Closing Time, as the case may be, there shall be delivered to the Placement
Agent a letter from Xxxxx & Company, Inc., the Corporation's independent
accountants, the first letter to be dated the date of this Agreement, the second
letter to be dated the Closing Date, which shall be in form and substance
reasonably satisfactory to the Placement Agent and shall contain information as
of a date within five days of the date of such letter. There shall not have been
any change set forth in any letter referred to in this subsection (e) that makes
it impracticable or inadvisable in the judgment of the Placement Agent to
proceed with the offering of the Preferred Securities as contemplated hereby.
SECTION 6. INDEMNIFICATION.
(a) Placement Agent Indemnification.
(A) The Corporation and the Trust, jointly and severally, agree to
indemnify and hold harmless the Placement Agent, each person, if any, who
controls the Placement Agent, within the meaning of Section 15 of the Securities
Act or Section 20 of the Securities Exchange Act of 1934 (the "Exchange Act"),
and its affiliates, their respective, directors, officers, employees and agents
(hereinafter the "Placement Agent Indemnified Parties") as follows:
(i) from and against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, related to or arising out of the offering
of the Capital Securities or any action taken by the Placement Agent where
acting as agent of the Corporation and the Trust or otherwise as described
in Section 2 hereof;
16
provided, however, that this indemnity agreement shall not apply to any
loss, liability, claim, damage or expense found in a final judgment by a
court of competent jurisdiction to have resulted primarily from the bad
faith, willful misconduct or gross negligence of the Placement Agent;
(ii) from and against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, based upon or arising out of any untrue
statement or alleged untrue statement of a material fact contained in the
Prospectus (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, in light of the circumstances under which they
were made, not misleading; provided, however, that the indemnification
provided for in this paragraph (A) shall not apply to any loss, liability,
claim, damage or expense to the extent arising out of any untrue statement
or alleged untrue statement of a material fact or omission or alleged
omission of a material fact required to be stated therein or necessary to
make not misleading any statements contained in the Prospectus (or any
amendment thereto) made in reliance upon and in conformity with written
information relating to the Placement Agent furnished to the Corporation or
the Trust by the Placement Agent expressly for use in the Prospectus (or
any amendment thereto), which information is included in the sections
captioned "Private Placement Offering" (the "Placement Agent Information");
(iii) from and against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount paid
in settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever described in clauses (i) or (ii) above, if such settlement is
effected with the written consent of the Corporation or the Trust, which
consent shall not be unreasonably withheld; and
(iv) from and against any and all expenses whatsoever, as incurred
(including, subject to Section 6(c) hereof, the fees and disbursements of
counsel chosen by the Placement Agent), reasonably incurred in
investigating, preparing or defending against any litigation, or any
investigation, proceeding or inquiry by any governmental agency or body,
commenced or threatened, or any pending or threatened claim whatsoever
described in clauses (i) or (ii) above, to the extent that any such expense
is not paid under (i), (ii), or (iii) above.
(B) In addition to, and without limiting the provisions of Section
(6)(a)(A)(iv) hereof, in the event that the Placement Agent or any Placement
Agent Indemnified Party is requested or required to provide documentary evidence
or to appear as a witness or otherwise give testimony in any action, proceeding,
investigation or inquiry brought by or on behalf of or against the Corporation
or the Trust or any of its affiliates or any participant in the transactions
contemplated hereby in which the Placement Agent or any Placement Agent
Indemnified Party is not named as a defendant or subject to an investigation or
inquiry, the Corporation and the Trust jointly and severally agree to reimburse
the Placement Agent for all reasonable and necessary out-of-pocket expenses
incurred by it in connection with providing any documentary evidence or
preparing or
17
appearing as a witness or otherwise giving testimony and to compensate the
Placement Agent in the amount of $2,000 per day for any sworn testimony.
(C) In any case in which it is finally judicially determined that
indemnification or reimbursement, as set forth above, may not be enforced or is
otherwise unavailable, then the Corporation and the Trust agree to jointly and
severally contribute to the aggregate claims, liabilities, losses, damages or
expenses to which the Placement Agent and each Placement Agent Indemnified Party
may be subject in such proportion as is appropriate to reflect the relative
benefits received by the Corporation and the Trust on the one hand, and the
Placement Agent on the other, from the offering provided for in this Agency
Agreement. Such relative benefits shall be determined by reference to the total
value of the proposed offering in relation to the fee received or that would be
received if the offering was consummated by the Placement Agent, provided,
however, that the Corporation and the Trust shall contribute any additional
amount necessary to assure that the contribution by the Placement Agent does not
exceed the amount of the fee actually received by the Placement Agent under this
Agency Agreement.
(D) The rights to indemnification and contribution under this Section
6(a) are cumulative and in addition to (and not exclusive of) any right, power
or remedy provided by law or equity, and shall apply whether or not the
Placement Agent or any Placement Agent Indemnified Party is named or threatened
to be named as a party in any action, suit or proceeding, brought or to be
brought, The Corporation and the Trust hereby consent to personal jurisdiction
and to service and venue in any court in which any claim subject to this
indemnification is brought against the Placement Agent or any Placement Agent
Indemnified Party.
(b) The Placement Agent agrees to indemnify and hold harmless the
Corporation, the Trust, their affiliates, and their respective directors,
administrators, trustees, officers, and each person, if any, who controls the
Corporation within the meaning of Section 15 of the Securities Act or Section 20
of the Exchange Act against any and all loss, liability, claim, damage, and
expense described in the indemnity contained in subsection (a)(A) of this
Section, as incurred, but only with respect to untrue statements or alleged
untrue statements of a material fact or omissions or alleged omissions of a
material fact, made in the Prospectus (or any amendment or supplement thereto)
in reliance upon and in conformity with the Placement Agent Information.
(c) Each indemnified party shall give written notice as promptly as
reasonably practicable to each indemnifying party of any pending or threatened
claim, or any action or proceeding arising therefrom or commenced against it in
respect of which indemnity is being sought under this Section 6, but failure to
so notify an indemnifying party shall not relieve such indemnifying party from
any liability which it may have on account of this indemnity agreement or
otherwise. If it so elects, the indemnifying party may assume the defense of any
such action or proceeding with counsel chosen by it, unless the indemnified
party reasonably objects to such assumption on the grounds that there are legal
defenses available to the indemnified party which are different from or in
addition to those available to the indemnifying party, in which case the
indemnifying party shall pay the reasonable fees and expenses of separate
counsel for the indemnified party, provided, however, that in no event shall the
indemnifying party be liable for the fees and expenses of more than one counsel
for the indemnified parties. The indemnifying party may participate at its own
expense in the defense of any such action.
18
SECTION 7. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE DELIVERY.
All representations, warranties and agreements contained in this
Agreement, or contained in certificates of officers of the Corporation, the
Trust or the Bank submitted pursuant hereto, shall remain operative and in full
force and effect, regardless of any investigation made by or on behalf of the
Placement Agent or any controlling person, or by or on behalf of the
Corporation, and shall survive delivery of the Capital Securities.
SECTION 8. TERMINATION OF AGREEMENT.
(a) The Placement Agent may terminate this Agreement, by notice to the
Corporation and the Trust, at any time at or prior to Closing Time (i) if there
has been, since the date of this Agreement or since the respective dates as of
which information is given in the Prospectus, any material adverse change, in
the Placement Agent's good faith opinion, in the condition, financial or
otherwise, or in the earnings, business affairs or business prospects of the
Corporation or the Bank, or the Corporation and the Bank taken as a whole,
whether or not arising in the ordinary course of business, or (ii) if there has
occurred any material adverse change in the financial markets in the United
States or elsewhere or any outbreak of hostilities or escalation thereof or
other calamity or crisis the effects of which, in the reasonable judgment of the
Placement Agent, are so material and adverse as to make it impracticable to
market the Capital Securities or to enforce contracts, including subscriptions
or orders, for the sale of the Capital Securities, (iii) or if trading generally
on either the American Stock Exchange, the New York Stock Exchange or NASDAQ 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 by order of the Commission or any other governmental authority, or
if a banking moratorium has been declared by either Federal or Pennsylvania
authorities, or (iv) if any condition specified in Section 5 shall not have been
fulfilled when and as required to be fulfilled.
(b) If this Agreement is terminated pursuant to this Section, such
termination shall be without liability of any party to any other party except
that the provisions of Section 4 relating to reimbursement of expenses and the
provisions of Sections 6 and 7 hereof shall survive any termination of this
Agreement.
(c) If not earlier terminated, this Agreement shall terminate as of the
Closing Time provided that the provisions of Section 2(g), 4, 6 and 7 shall
survive termination.
SECTION 9. 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 standard
form of telecommunication. Notices to the Placement Agent shall be directed to
the Placement Agent at Xxxxxx Xxxxxxx, a Division of Xxxxxx Xxxxxxx
Incorporated, 0000 Xxxxxx Xxxx, Xxxxxxxxx, Xxxxxxxxxxxx 00000-0000, attention of
Xxxx X. Xxxxxxx, Senior Vice President, with a copy to Xxxxxxx X. Xxxxxxx, Esq.,
Xxxxxxx & Xxx, One Glenhardie Corporate Center, 0000 Xxxxxxxx Xxxx, Xxxxx,
Xxxxxxxxxxxx 00000; notices to the Corporation, the Bank and/or the Trust shall
be directed to any of them at First Star Bancorp, Inc., 000 Xxxx Xxxxx Xxxxxx,
Xxxxxxxxx, Xxxxxxxxxxxx 00000, xxxxxxxxx of Xxxx X. Xxxxxxxxx, Executive Vice
President and CFO, with a copy to Xxxx X. Xxxxx,
19
Esq., Xxxxxxx Spidi & Xxxxx, PC, One Franklin Square, 0000 X Xxxxxx, X.X. Suite
700, Washington, D.C. 20005.
SECTION 10. PARTIES.
This Agreement shall inure to the benefit of and be binding upon the
Placement Agent, the Corporation and the Trust 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 Placement
Agent, the Corporation and the Trust 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 or
therein contained. This Agreement and all conditions and provisions hereof and
thereof are intended to be for the sole and exclusive benefit of the Placement
Agent, the Corporation and the Trust 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 persons, firm or corporation.
SECTION 11. ENTIRE AGREEMENT, AMENDMENT.
This Agreement represents the entire understanding of the parties
hereto with reference to the transactions contemplated hereby and supersedes any
and all other oral or written agreements heretofore made. No waiver, amendment
or other modification of this Agreement shall be effective unless in writing and
signed by the parties hereto. In the event of any conflict between the terms of
this Agreement and the terms of such engagement letter, the terms of this
Agreement will govern.
SECTION 12. GOVERNING LAW AND TIME.
This Agreement shall be governed by and construed in accordance with
the laws of the Commonwealth of Pennsylvania applicable to agreements made and
to be performed in said Commonwealth without regard to the conflicts of laws
provisions thereof. Specified times of day refer to Eastern time.
SECTION 13. SEVERABILITY.
Any term or provision of this Agreement which is invalid or
unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective
to the extent of such invalidity or unenforceability without rendering invalid
or unenforceable the remaining terms and provisions of this Agreement or
affecting the validity or enforceability of any of the terms or provisions of
this Agreement in any other jurisdiction. If any provision of this Agreement is
so broad as to be unenforceable, the provision shall be interpreted to be only
so broad as is enforceable.
SECTION 14. HEADINGS.
Sections headings are not to be considered part of this Agreement, are
for convenience and reference only, and are not to be deemed to be full or
accurate descriptions of the contents of any paragraph or subparagraph.
20
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Corporation a counterpart hereof,
whereupon this instrument, along with all counterparts, will become a binding
agreement between the Placement Agent, the Corporation and the Trust in
accordance with its terms.
Very truly yours,
FIRST STAR BANCORP, INC.
By:___________________________________
FIRST STAR CAPITAL TRUST I
By:____________________________________
Administrative Trustee
CONFIRMED AND ACCEPTED as of the date first above written:
XXXXXX XXXXXXX, a Division of Xxxxxx Xxxxxxx Incorporated
By:_____________________________
