1,200,000 Shares
BCB Financial Services Corporation
Common Stock
$2.50 Par Value
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UNDERWRITING AGREEMENT
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Philadelphia, Pennsylvania
______ ___, 1997
XXXXXX XXXXXXXXXX XXXXX INC.
WHEAT FIRST BUTCHER SINGER
Representatives of the Several
Underwriters Named in Schedule I Hereto
c/o Janney Xxxxxxxxxx Xxxxx Inc.
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
Ladies and Gentlemen:
BCB Financial Services Corporation, a Pennsylvania corporation ("BCB"),
proposes to sell to the several underwriters identified above (the
"Representatives") and the several other underwriters named in Schedule I
hereto (together with the Representatives, the "Underwriters"), 1,200,000
shares of BCB's Common Stock, par value $2.50 per share (the "Common Stock").
The 1,200,000 shares of Common Stock to be sold to the Underwriters by BCB
are referred to herein as the "Firm Shares." The respective amounts of the
Firm Shares to be purchased by the several Underwriters are set forth
opposite their names in Schedule I hereto. The Firm Shares shall be offered
to the public at a public offering price of $______ per Firm Share (the
"Offering Price").
In order to cover over-allotments in the sale of the Firm Shares, the
Underwriters may purchase for the Underwriters' own accounts up to 180,000
additional shares of Common Stock from BCB. Such 180,000 additional shares
of Common Stock are referred to herein as the "Optional Shares." If any
Optional Shares are purchased, the Optional Shares shall be purchased for
offering to the public at the Offering Price and in accordance with the terms
and conditions set forth herein. The Firm Shares and the Optional Shares are
referred to collectively herein as the "Shares."
1. Representations and Warranties of BCB. BCB represents and warrants
to, and agrees with, the several Underwriters that:
(a) BCB has prepared, in conformity with the
requirements of the Securities Act of 1933, as amended (the
"Act"), and the rules and regulations (the "Regulations") of the
Securities and Exchange Commission (the "SEC") under the Act in
effect at all applicable times, and has filed with the SEC a
registration statement on Form SB-2 (File No. 333-_____) and one
or more amendments thereto for the purpose of registering the
Shares under the Act. Copies of such registration statement and
any amendments thereto, and all forms of the related prospectus
contained therein, have been delivered to the Representatives.
Any preliminary prospectus included in such registration
statement or filed with the SEC pursuant to Rule 424(a) of the
Regulations is hereinafter called a "Preliminary Prospectus."
The various parts of such registration statement, including all
exhibits thereto and the information contained in the form of
final prospectus filed with the SEC pursuant to Rule 424(b) of
the Regulations in accordance with Section 5(a) of this Agreement
and deemed by virtue of Rule 424 of the Regulations to be part of
the registration statement at the time it was declared effective,
each as amended at the time the registration statement became
effective, including the information (if any) deemed to be part
of the registration statement at the time of effectiveness
pursuant to Rule 430A of the Regulations, are hereinafter
collectively called the "Registration Statement." The final
prospectus in the form included in the Registration Statement or
first filed with the SEC pursuant to Rule 424(b) of the
Regulations and any amendments or supplements thereto, including
the information (if any) deemed to be part of that prospectus at
the time of effectiveness pursuant to Rule 430A of the
Regulations, is hereinafter called the "Prospectus." All
references to the Registration Statement, the Preliminary
Prospectus and the Prospectus include all documents incorporated
therein by reference. If BCB has filed an abbreviated
registration statement to register additional Common Stock
pursuant to Rule 462(b) under the Act (the "Rule 462 Registration
Statement"), then any reference herein to the term "Registration
Statement" shall be deemed to include such 462 Registration
Statement.
(b) The Registration Statement has become effective under the Act,
and the SEC has not issued any stop order suspending the effectiveness of the
Registration Statement or preventing or suspending the use of the Preliminary
Prospectus, nor has the SEC instituted or threatened to institute proceedings
with respect to such an order. No stop order suspending the sale of the
Shares in any jurisdiction designated by the Representatives as provided for
in Section 5(f) hereof has been issued, and no proceedings for that purpose
have been instituted or threatened. BCB has complied in all material
respects with all requests of the SEC, or requests of which BCB has been
advised of any state or foreign securities commission in a state or foreign
jurisdiction designated by the Representatives as provided for in Section
5(f) hereof, for additional information to be included in the Registration
Statement, any Preliminary Prospectus or the Prospectus. Each Preliminary
Prospectus conformed to all the requirements of the Act and the Regulations
as of its date in all material respects and did not as of its date contain
any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the
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statements therein, in light of the circumstances under which they were made,
not misleading, except the foregoing shall not apply to statements in or
omissions from any Preliminary Prospectus in reliance upon and in conformity
with information supplied to BCB in writing by or on behalf of any
Underwriter through the Representatives expressly for use therein. The
Registration Statement, on the date on which it was declared effective by the
SEC (the "Effective Date") and when any post-effective amendment thereof
shall become effective, and the Prospectus, at the time it is filed with the
SEC including, if applicable, pursuant to Rule 424(b), and on the Closing
Date (as defined in Section 3 hereof) and any Option Closing Date (as defined
in Section 4(b) hereof), conformed and will conform in all material respects
to all the requirements of the Act and the Regulations, and did not and will
not, on any of such dates, include any untrue statement of a material fact or
omit to state any material fact required to be stated therein or necessary to
make the statements therein not misleading, except that this representation
and warranty does not apply to statements in or omissions from the
Registration Statement or the Prospectus made in reliance upon and in
conformity with information furnished to BCB in writing by or on behalf of
any Underwriter through the Representatives expressly for use therein.
(c) BCB is a corporation duly organized, validly existing and in
good standing under the laws of the Commonwealth of Pennsylvania, with all
necessary corporate power and authority, and all required licenses, permits,
certifications, registrations, approvals, consents and franchises to own or
lease and operate its properties and to conduct its current business as
described in the Prospectus, and to execute, deliver and perform this
Agreement. BCB is duly registered with the Board of Governors of the Federal
Reserve System (the "Federal Reserve Board") as a bank holding company under
the Bank Holding Company Act of 1956, as amended (the "BHCA").
(d) BCB's only direct or indirect subsidiaries are Berks County
Bank (the "Bank") and Berks Mortgage Company (the "Mortgage Company") and BCB
does not own or control, directly or indirectly, more than 5% of any class of
equity security of any corporation, association or other entity other than
the Bank and the Mortgage Company (collectively, the "Subsidiaries"). The
Bank is a Pennsylvania-chartered commercial bank and the Mortgage Company is
a Pennsylvania business trust and both Subsidiaries are duly organized,
validly existing and in good standing under the laws of the Commonwealth of
Pennsylvania, with all necessary corporate power and authority, and all
required licenses, permits, certifications, registrations, approvals,
consents and franchises to own or lease and operate their respective
properties and to conduct their respective businesses as described in the
Prospectus. The deposit accounts of the Bank are insured by the Bank
Insurance Fund administered by the Federal Deposit Insurance Corporation (the
"FDIC") up to the maximum amount provided by law; and no proceedings for the
modification, termination or revocation of any such insurance are pending or,
to the knowledge of BCB, threatened. BCB and each of its Subsidiaries are
duly qualified to do business as foreign corporations, and are in good
standing, in all jurisdictions in which such qualification is required,
except where the failure to so qualify would not have a material adverse
effect on the general affairs, properties, condition (financial or
otherwise), results of operations, stockholders'
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equity, business or prospects (collectively, the "Business Conditions") of
BCB and the Subsidiaries taken as a whole.
(e) The outstanding shares of capital stock of each of the
Subsidiaries has been duly authorized and validly issued, are fully paid and
non-assessable and are owned, directly or indirectly, by BCB free and clear
of all liens, encumbrances and security interests; and no options, warrants
or other rights to purchase, agreements or other obligations to issue, or
other rights to convert any obligations into, shares of capital stock or
ownership interests in either of the Subsidiaries or securities convertible
into or exchangeable for capital stock of, or other ownership interests in,
either of the Subsidiaries are outstanding.
(f) This Agreement has been duly authorized, executed and
delivered by BCB and constitutes its legal, valid and binding obligation,
enforceable against BCB in accordance with its terms, except as enforcement
may be limited by bankruptcy, insolvency or other similar laws affecting the
enforcement of creditors' rights generally and subject to applicability of
general principles of equity and except, as to this Agreement, as rights to
indemnity and contribution may be limited by federal and state securities
laws or principles of public policy.
(g) The execution, delivery and performance of this Agreement and
the transactions contemplated herein, do not and will not, with or without
the giving of notice or the lapse of time, or both, (i) conflict with any
term or provision of BCB's or either of the Subsidiaries' Articles of
Incorporation or Bylaws; (ii) result in a breach of, constitute a default
under, result in the termination or modification of, result in the creation
or imposition of any lien, security interest, charge or encumbrance upon any
of the properties of BCB or either of the Subsidiaries or require any payment
by BCB or either of the Subsidiaries or impose any liability on BCB or either
of the Subsidiaries pursuant to, any contract, indenture, mortgage, deed of
trust, commitment or other agreement or instrument to which BCB or either of
the Subsidiaries is a party or by which any of their respective properties
are bound or affected other than this Agreement; (iii) assuming compliance
with all applicable state securities ("Blue Sky") laws and the rules of the
National Association of Securities Dealers, Inc. ("NASD") applicable to the
offer and sale of the Shares, violate any law, rule, regulation, judgment,
order or decree of any government or governmental agency, instrumentality or
court, domestic or foreign, having jurisdiction over BCB or either of the
Subsidiaries or any of their respective properties or businesses; or (iv)
result in a breach, termination or lapse of BCB's or either of the
Subsidiaries' corporate power and authority to own or lease and operate their
respective properties and conduct their respective businesses.
(h) At the date or dates indicated in the Prospectus, BCB had the
duly authorized and outstanding capitalization set forth in the Prospectus
under the caption "Capitalization" and will have, as of the issuance of the
Firm Shares on the Closing Date, the as adjusted capitalization set forth
therein as of the date indicated in the Prospectus. On the Effective Date,
the Closing Date and any Option Closing Date, there will be no
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options or warrants or other outstanding rights to purchase, agreements or
obligations to issue or agreements or other rights to convert or exchange any
obligation or security into, capital stock of BCB or securities convertible
into or exchangeable for capital stock of BCB, except as described in the
Prospectus or the grant of options after the date of the Prospectus under
option plans of the Company described in the Prospectus. The information in
the Prospectus insofar as it relates to all outstanding options and other
rights to acquire securities of BCB as of the Effective Date and immediately
prior to the Closing Date and any Option Closing Date is true and correct in
all material respects.
(i) The currently outstanding shares of BCB's capital stock have
been duly authorized and are validly issued, fully paid and non-assessable,
and none of such outstanding shares of BCB's capital stock has been issued in
violation of any preemptive rights of any security holder of BCB. The
holders of the outstanding shares of BCB's capital stock are not subject to
personal liability solely by reason of being such holders. All prior offers
and sales of BCB's capital stock were at all relevant times registered under
the Act or exempt from the registration requirements of the Act and were duly
registered with or the subject of an available exemption from the
registration requirements of the applicable state securities or Blue Sky
laws, except for such offers and sales which are described in the
Registration Statement. The failure to duly register or satisfy an
applicable exemption from registration pursuant to the Act and/or applicable
state securities or Blue Sky laws with respect to any prior offers and sales
of BCB's capital stock which are described in the Registration Statement,
will not, either individually or in the aggregate, have a material adverse
effect on the Business Conditions of BCB and the Subsidiaries taken as a
whole. The authorized capital stock of BCB including, without limitation,
the outstanding Common Stock, the Shares being issued, and the outstanding
options to purchase shares of Common Stock, conform in all material respects
with the descriptions thereof in the Prospectus, and such descriptions
conform in all material respects with the instruments defining the same.
(j) When the Shares have been duly delivered against payment
therefor as contemplated by this Agreement, the Shares will be validly
issued, fully paid and non-assessable, and the holders thereof will not be
subject to personal liability solely by reason of being such holders. The
certificates representing the Shares are in proper legal form under, and
conform in all respects to the requirements of, the Pennsylvania Business
Corporation Law, as amended (the "PBCL"). Neither the filing of the
Registration Statement nor the offering or sale of the Shares as contemplated
by this Agreement gives any security holder of BCB any rights for or relating
to the registration of any Common Stock or any other capital stock of BCB or
any rights to covert or have redeemed or otherwise receive anything of value
with respect to any other security of BCB.
(k) No consent, approval, authorization, order, registration,
license or permit of, or filing or registration with, any court, government,
governmental agency, instrumentality or other regulatory body or official is
required for the valid and legal execution, delivery and performance by BCB
of this Agreement and the consummation of the transactions contemplated
hereby or described in the Prospectus, except such as may be required for the
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registration of the Shares under the Act, the Regulations and the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and for compliance
with the applicable state securities or Blue Sky laws or the Bylaws, rules
and other pronouncements of the NASD.
(l) The Common Stock (including the Shares) have been registered
pursuant to Section 12(g) of the Exchange Act. The issued and outstanding
shares of Common Stock (including the Shares) are included for quotation on
the Nasdaq National Market. Neither BCB nor, to BCB's knowledge, any other
person has taken any action designed to cause, or likely to result in, the
termination of the registration of the Common Stock under the Exchange Act.
BCB has not received any notification that the SEC or the NASD is
contemplating terminating such registration or inclusion.
(m) The statements in the Registration Statement and Prospectus,
insofar as they are descriptions of or references to contracts, agreements or
other documents, are accurate in all material respects and present or
summarize fairly, in all material respects, the information required to be
disclosed under the Act or the Regulations, and there are no contracts,
agreements or other documents, instruments or transactions of any character
required to be described or referred to in the Registration Statement or
Prospectus or to be filed as exhibits to the Registration Statement that have
not been so described, referred to or filed, as required.
(n) Each contract or other instrument (however characterized or
described) to which BCB or either of its Subsidiaries is a party or by which
any of their respective properties or businesses is bound or affected and
which is material to the conduct of BCB's or either of its Subsidiaries',
business has been duly and validly executed by BCB or either of its
Subsidiaries, as applicable, and, to the knowledge of BCB, by the other
parties thereto. Each such contract or other instrument is in full force and
effect and is enforceable in all material respects against the parties
thereto in accordance with its terms, except as enforcement may be limited by
bankruptcy, insolvency or other similar laws affecting the enforcement of
creditors' rights generally and subject to applicability of general
principles of equity, and neither BCB nor either of its Subsidiaries is, and
to the knowledge of BCB, no other party is, in default thereunder, and no
event has occurred that, with the lapse of time or the giving of notice, or
both, would constitute a default under any such contract or other instrument.
All necessary consents under such contracts or other instruments to the
disclosure in the Prospectus with respect thereto have been obtained.
(o) The consolidated financial statements of BCB (including the
notes thereto) filed as part of any Preliminary Prospectus, the Prospectus
and the Registration Statement present fairly, in all material respects, the
financial position of BCB as of the respective dates thereof, and the results
of operations and cash flows of BCB for the periods indicated therein, all in
conformity with generally accepted accounting principles. The supporting
notes included in the Registration Statement fairly state in all material
respects the information required to be stated therein in relation to the
financial statements taken as a whole. The financial information included in
the Prospectus under the caption "Prospectus
6
Summary - Summary Selected Consolidated Financial Data" pursuant to
applicable accounting and securities law standards, presents fairly the
information shown therein and has been compiled on a basis consistent with
that of the audited consolidated financial statements included in the
Registration Statement. The unaudited pro forma adjustments to financial
information included in the Registration Statement have been properly
applied, pursuant to applicable accounting and securities law standards, to
the historical amounts in the compilation of that information to reflect the
sale by BCB of 1,200,000 shares of Common Stock offered thereby at an assumed
offering or actual price set forth in the Preliminary Prospectus or the
Prospectus, as the case may be, and the application of the estimated net
proceeds therefrom.
(p) Since the respective dates as of which information is given in
the Registration Statement and the Prospectus, except as otherwise stated
therein, there has not been (i) any material adverse change (including,
whether or not insured against, any material loss or damage to any material
assets), or development involving a prospective material adverse change, in
the Business Conditions of BCB and the Subsidiaries taken as a whole; (ii)
any material adverse change, loss, reduction, termination or non-renewal of
any material contract to which BCB or either of its Subsidiaries is a party;
(iii) any transaction entered into by BCB or either of its Subsidiaries not
in the ordinary course of its business that is material to BCB; (iv) any
dividend or distribution of any kind declared, paid or made by BCB on its
capital stock, except for and to the extent described in the Prospectus; (v)
any liabilities or obligations, direct or indirect, incurred by BCB or either
of its Subsidiaries that are material to BCB or either of its Subsidiaries;
(vi) any change in the capitalization of BCB or either of its Subsidiaries;
or (vii) any change in the indebtedness of BCB or either of its Subsidiaries
that is material to BCB or either of its Subsidiaries. Neither BCB nor
either of its Subsidiaries has any contingent liabilities or obligations that
are material and that are not expressly disclosed in the Prospectus.
(q) BCB has not distributed, and will not distribute, any offering
material in connection with the offering and sale of the Shares other than
the Registration Statement, a Preliminary Prospectus, the Prospectus and
other material, if any, permitted by the Act and the Regulations. Neither
BCB nor any of its officers, directors or affiliates has taken, nor shall BCB
or such persons take, any action designed to, or that might be reasonably
expected to, cause or result in stabilization or manipulation of the price of
the Common Stock.
(r) BCB and the Subsidiaries have filed with the appropriate
federal, state and local governmental agencies, and all foreign countries and
political subdivisions thereof, all tax returns that are required to be filed
or have duly obtained extensions of time for the filing thereof and have paid
all taxes shown on such returns or otherwise due and all material assessments
received by them to the extent that the same have become due. Neither BCB
nor either of its Subsidiaries has executed or filed with any taxing
authority, foreign or domestic, any agreement extending the period for
assessment or collection of any income or other tax and none of them is a
party to any pending action or proceeding by any
7
foreign or domestic governmental agency for the assessment or collection of
taxes, and no claims for assessment or collection of taxes have been asserted
against BCB or either of its Subsidiaries that might materially adversely
affect the Business Conditions of BCB and the Subsidiaries taken as a whole.
(s) Xxxxx & Company, Inc., who have certified the consolidated
financial statements of BCB included as part of the Registration Statement,
are independent certified public accountants with respect to BCB as required
by the Act and the Regulations.
(t) Neither BCB nor either of its Subsidiaries is in violation of,
or in default under, any of the terms or provisions of (i) its Articles of
Incorporation or Bylaws or similar governing instruments, (ii) any indenture,
mortgage, deed of trust, contract, commitment or other agreement or
instrument to which it is a party or by which it or any of its assets or
properties is bound or affected, (iii) any law, rule, regulation, judgment,
order or decree of any government or governmental agency, instrumentality or
court, domestic or foreign, having jurisdiction over it or any of its
properties or business, or (iv) any license, permit, certification,
registration, approval, consent or franchise, except with respect to clause
(ii), (iii) or (iv) above, where any such default would not have a material
adverse effect on the Business Conditions of BCB and the Subsidiaries taken
as a whole.
(u) Except as expressly disclosed in the Prospectus, there are no
claims, actions, suits, protests, proceedings, arbitrations, investigations
or inquiries pending before, or, to BCB's knowledge, threatened or
contemplated by, any governmental agency, instrumentality, court or tribunal,
domestic or foreign, or before any private arbitration tribunal to which BCB
or either of its Subsidiaries is or may be made a party that could reasonably
be expected to affect the validity of any of the outstanding shares of Common
Stock, or that, if determined adversely to BCB or either of its Subsidiaries
would, in any case or in the aggregate, result in any material adverse change
in the Business Conditions of BCB and the Subsidiaries taken as a whole, nor
to BCB's knowledge is there any reasonable basis for any such claim, action,
suit, protest, proceeding, arbitration, investigation or inquiry. There are
no outstanding orders, judgments or decrees of any court, governmental
agency, instrumentality or other tribunal enjoining BCB or either of its
Subsidiaries from, or requiring BCB or either of its Subsidiaries to take or
refrain from taking, any action, or to which BCB or either of its
Subsidiaries or their respective properties, assets or businesses are bound
or subject.
(v) Each of BCB and the Subsidiaries owns, or possesses adequate
rights to use, all trademarks, trademark registrations, applications for
trademark registration, trade names, service marks, licenses, copyrights, and
other proprietary information necessary for, used in, or proposed to be used
in, the conduct of the business of BCB as described in the Prospectus
(collectively, the "Intellectual Property"). To BCB's knowledge, BCB has not
infringed, is not infringing and BCB has not received any notice of conflict
with, the asserted rights of others with respect to the Intellectual Property
that, individually or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, could materially
8
adversely affect the Business Conditions of BCB and the Subsidiaries taken as
a whole, and BCB knows of no reasonable basis therefor. To the knowledge of
BCB, no other parties have infringed upon or are in conflict with any
Intellectual Property.
(w) Each of BCB and the Subsidiaries has good and marketable title
to all property described in the Prospectus as being owned by it, free and
clear of all liens, security interests, charges or encumbrances and the like,
except such as are expressly described or referred to in the Prospectus or
such as do not materially affect the Business Conditions or the conduct of
the business of BCB and the Subsidiaries as described in the Prospectus.
Each of BCB and the Subsidiaries has insured its property against loss or
damage by fire or other casualty, in amounts reasonably believed by BCB to be
adequate, and maintains insurance against such other risks as management of
BCB deems appropriate. All real and personal property leased by BCB and the
Subsidiaries as described or referred to in the Prospectus, is held by BCB
and the Subsidiaries, as applicable, under valid leases. All real property
owned by BCB and the Subsidiaries (including offices and real estate acquired
through foreclosure or deed-in-lien thereof) and all real property securing
any loans originated and/or purchased by BCB and the Subsidiaries
(collectively, the "Real Property") are, to the knowledge of BCB, in
compliance with all federal, state and local statutes, ordinances,
regulations, rules, standards and requirements of common law concerning or
relating to industrial hygiene and the protection of health and the
environment (collectively, "the Environmental Laws"), except to the extent
that any failure in such compliance would not materially adversely affect the
Business Conditions of BCB and the Subsidiaries taken as a whole. To the
knowledge of BCB, there are no conditions on, about, beneath or arising from
the Real Property, in close proximity to the Real Property or at any other
location that might give rise to liability, the imposition of a statutory
lien or require a "Response," "Removal" or "Remedial Action," as defined
herein, under any of the Environmental Laws, and that would materially
adversely affect the Business Conditions of BCB and the Subsidiaries taken as
a whole except as described in the Prospectus. Except as expressly disclosed
in the Prospectus, or which will not materially adversely affect the Business
Conditions of BCB and the Subsidiaries taken as a whole, (i) neither BCB nor
either of its Subsidiaries has received notice or has knowledge of any claim,
demand, investigation, regulatory action, suit or other action instituted or
threatened against BCB or either of its Subsidiaries or any portion of the
Real Property or any parcel in close proximity to the Real Property relating
to any of the Environmental Laws and (ii) neither BCB nor either of its
Subsidiaries has received any notice of material violation, citation,
complaint, order, directive, request for information or response thereto,
notice letter, demand letter or compliance schedule to or from any
governmental or regulatory agency arising out of or in connection with
"hazardous substances" (as defined by applicable Environmental Laws) on,
about, beneath, arising from or generated at the Real Property, near the Real
Property or at any other location. As used in this subsection, the terms
"Response, " Removal" and "Remedial Action" shall have the respective
meanings assigned to such terms under Sections 101(23) - 101(25) of the
Comprehensive Environmental Response, Compensation and Liability Act, as
amended by the Superfund Amendments and Reauthorization Act, 42 U.S.C.
9601(23) - 9601(25).
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(x) Each of BCB and the Subsidiaries maintains a system of
internal accounting controls sufficient to provide reasonable assurances
that: (i) transactions are executed in accordance with management's general
or specific authorization; (ii) transactions are recorded as necessary in
order to permit preparation of financial statements in accordance with
generally accepted accounting principles and to maintain accountability for
assets; (iii) access to assets is permitted only in accordance with
management's general or specific authorization; and (iv) the recorded
accountability for assets is compared with existing assets at reasonable
intervals and appropriate action is taken with respect to any differences.
(y) Except for the plans that are expressly disclosed in the
Prospectus or are not required to be disclosed therein, neither BCB nor
either of its Subsidiaries has any employee benefit plan, profit sharing
plan, employee pension benefit plan or employee welfare benefit plan or
deferred compensation arrangements ("Plans") that are subject to the
provisions of the Employee Retirement Income Security Act of 1974, as
amended, or the rules and regulations thereunder ("ERISA"). All Plans that
are subject to ERISA are in compliance with ERISA, in all material respects,
and, to the extent required by the Internal Revenue Code of 1986, as amended
(the "Code"), in compliance with the Code in all material respects. Neither
BCB nor either of its Subsidiaries has any employee pension benefit plan that
is subject to Part 3 of Subtitle B of Title I or ERISA or any defined benefit
plan or multi-employer plan. Neither BCB nor either of its Subsidiaries has
maintained retiree life or retiree health insurance plans that are employee
welfare benefit plans providing for continuing benefit or coverage for any
employee or any beneficiary of any employee after such employee's termination
of employment, except as required by Section 4980B of the Code and except as
disclosed in the Prospectus. No fiduciary or other party in interest with
respect to any of the Plans has caused any of such Plans to engage in a
prohibited transaction as defined in Section 406 of ERISA. As used in this
subsection, the terms "defined benefit plan," "employee benefit plan,"
"employee pension benefit plan," "employee welfare benefit plan," "fiduciary"
and "multiemployer plan" shall have the respective meanings assigned to such
terms in Section 3 of ERISA.
(z) No labor dispute exists with BCB's or the Subsidiaries'
employees, and to BCB's knowledge, no such labor dispute is threatened. BCB
has no knowledge of any existing or threatened labor disturbance by the
employees of any of the principal suppliers, contractors or customers of BCB
or the Subsidiaries that would materially adversely affect the Business
Conditions of BCB and the Subsidiaries taken as a whole. None of BCB's or
the Subsidiaries' employees is covered by a collective bargaining agreement
and no union organizing activity exists with respect to any of such employees.
(aa) Neither BCB nor either of its Subsidiaries has incurred any
liability for any finder's fees or similar payments in connection with the
transactions contemplated herein other than as disclosed in the Prospectus.
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(bb) BCB is familiar with the Investment Company Act of 1940, as
amended (the "1940 Act"), and the rules and regulations thereunder, and has
in the past conducted, and BCB intends to conduct, its affairs in such a
manner as to ensure that it will not be an "investment company" within the
meaning of the 1940 Act and the rules and regulations thereunder.
(cc) No statement, representation, warranty or covenant made by BCB
or either of its Subsidiaries in this Agreement or in any certificate or
document required by this Agreement to be delivered to the Representatives
is, or as of the Closing Date or any Option Closing Date will be, inaccurate,
untrue or incorrect in any material respect. No transaction has occurred or
is proposed between or among BCB or either of its Subsidiaries and any of
their respective officers, directors or stockholders or any affiliate of the
foregoing, that is required to be described in and is not described in the
Registration Statement and the Prospectus.
(dd) Neither BCB or either of its Subsidiaries nor any officer,
director, employee, partner, agent or other person acting on behalf of BCB or
either of its Subsidiaries has, directly or indirectly, given or agreed to
give any money, property or similar benefit or consideration to any customer
or supplier (including any employee or agent of any customer or supplier) or
official or employee of any agency or instrumentality of any government
(foreign or domestic) or political party or candidate for office (foreign or
domestic) or any other person who was, is or in the future may be in a
position to affect the Business Conditions of BCB and the Subsidiaries taken
as a whole or any actual or proposed business transaction of BCB or either of
its Subsidiaries that (i) could subject BCB or either of its Subsidiaries to
any liability (including, but not limited to, the payment of monetary
damages) or penalty in any civil, criminal or governmental action or
proceeding that would have a material adverse effect on the Business
Conditions of BCB and the Subsidiaries taken as a whole or (ii) with respect
to BCB, either of its Subsidiaries, or any officer or director thereof,
violates any law, rule or regulation to which BCB or either of it
Subsidiaries is subject.
Any certificate signed by any officer of BCB or either of its
Subsidiaries in such capacity and delivered to the Representatives or to
counsel for the Underwriters pursuant to this Agreement shall be deemed a
representation and warranty by BCB or either of its Subsidiaries, as the case
may be, to the several Underwriters as to the matters covered thereby.
2. Purchase and Sale of Firm Shares. On the basis of the
representations, warranties, covenants and agreements contained herein, but
subject to the terms and conditions set forth herein, BCB shall sell the Firm
Shares to the several Underwriters at the Offering Price less the
Underwriting Discounts and Commissions shown on the cover page of the
Prospectus, and the Underwriters, severally and not jointly, shall purchase
from BCB on a firm commitment basis, at the Offering Price less the
Underwriting Discounts and Commissions shown on the cover page of the
Prospectus, the respective amounts of the Firm
11
Shares set forth opposite their names on Schedule I hereto. In making this
Agreement, each Underwriter is contracting severally and not jointly, and
except as provided in Sections 4 and 11 hereof, the agreement of each
Underwriter is to purchase only that number of Shares specified with respect
to that Underwriter in Schedule I hereto. The Underwriters shall offer the
Shares to the public as set forth in the Prospectus.
3. Payment and Delivery. Payment for the Firm Shares shall be made by
certified or official bank check or checks payable to the order of BCB in New
York Clearing House (next day) funds, at the offices of Xxxxxx Xxxxxxxxxx
Xxxxx Inc., 00 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx, or in immediately available
funds wired to such accounts as BCB may specify (with all costs and expenses
incurred by the Underwriters in connection with such settlement in
immediately available funds, including, but not limited to, interest or cost
of funds and expenses, to be borne by BCB), against delivery of the Firm
Shares to the Underwriters at the offices of Xxxxxx Xxxxxxxxxx Xxxxx Inc., 00
Xxxxxxxx, Xxx Xxxx, Xxx Xxxx for the respective accounts of the Underwriters.
Such payment and delivery will be made at 10:00 am., New York, New York
time, on the third business day after the date of this Agreement, or at such
other time on the same or such other date, not later than seven business days
thereafter as shall be designated in writing by the Underwriters. Such time
and date are referred to herein as the "Closing Date." The certificates
representing the Firm Shares to be sold and delivered will be in such
denominations and registered in such names as the Underwriters request not
less than two full business days prior to the Closing Date, and will be made
available to the Underwriters for inspection, checking and packaging not less
than one full business day prior to the Closing Date.
4. Option to Purchase Optional Shares.
(a) For the purposes of covering any over-allotments in connection
with the distribution and sale of the Firm Shares as contemplated by the
Prospectus, subject to the terms and conditions herein set forth, the several
Underwriters are hereby granted an option by BCB to purchase all or any part
of the Optional Shares (the "Over-allotment Option"). The purchase price to
be paid for the Optional Shares shall be the Offering Price less the
Underwriting Discounts and Commissions shown on the cover page of the
Prospectus. The Over-allotment Option granted hereby may be exercised once
by the Underwriters as to all or any part of the Optional Shares at any time
within 30 days after the date of the Prospectus. No Underwriter shall be
under any obligation to purchase any Optional Shares prior to an exercise of
the Over-allotment Option.
(b) The Over-allotment Option granted hereby may be exercised by
the Underwriters by giving notice to BCB by a letter sent by registered or
certified mail, postage prepaid, telex, telegraph, telegram or facsimile
(such notice to be effective when received), addressed as provided in Section
13 hereof, setting forth the number of Optional Shares to be purchased, the
date and time for delivery of and payment for the Optional Shares and stating
that the Optional Shares referred to
12
therein are to be used for the purpose of covering over-allotments in
connection with the distribution and sale of the Firm Shares. If such notice
is given at least two full business days prior to the Closing Date, the date
set forth therein for such delivery and payment shall be not earlier than the
Closing Date. If such notice is given after two full business days prior to
the Closing Date, the date set forth therein for such delivery and payment
shall be a date selected by the Underwriters not later than five full
business days after the exercise of the Over-allotment Option. The date and
time set forth in such a notice is referred to herein as an "Option Closing
Date," and a closing held pursuant to such a notice is referred to herein as
an "Option Closing." Upon exercise of the Over-allotment Option, and on the
basis of the representations, warranties, covenants and agreements herein
contained, and subject to the terms and conditions herein set forth, the
several Underwriters shall become severally, but not jointly, obligated to
purchase from BCB the number of Optional Shares specified in each notice of
exercise of the Over-allotment Option (allocated among them in accordance
with Section 4(c) hereof).
(c) The number of Optional Shares to be purchased by each
Underwriter pursuant to each exercise of the Over-allotment Option shall be
the number that bears the same ratio to the aggregate number of Optional
Shares being purchased through such Over-allotment Option exercise as the
number of Firm Shares opposite the name of such Underwriter in Schedule I
hereto bears to the total number of all Firm Shares. Notwithstanding the
foregoing, the number of Optional Shares purchased and sold pursuant to
exercise of the Over-allotment Option shall be subject to such adjustment as
the Underwriters may approve to eliminate fractional shares.
(d) Payment for the Optional Shares shall be made to BCB, by
certified or official bank check payable to the order of BCB, in New York
Clearing House (next day) funds, at the offices of Xxxxxx Xxxxxxxxxx Xxxxx
Inc., 00 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx, or such other place as shall be agreed
upon by BCB and the Underwriters, or in immediately available funds wired to
such accounts as BCB may specify (with all costs and expenses incurred by the
Underwriters in connection with such settlement in immediately available
funds, including, but not limited to, interest or cost of funds and expenses,
to be borne by BCB), against delivery of the Optional Shares to the
Underwriters at the offices of Xxxxxx Xxxxxxxxxx Xxxxx Inc., 00 Xxxxxxxx, Xxx
Xxxx, Xxx Xxxx, for the respective accounts of the Underwriters. The
certificates representing the Optional Shares to be issued and delivered will
be in such denominations and registered in such names as the Underwriters
request upon reasonable notice prior to such Option Closing Date, and will be
made available to the Underwriters for inspection, checking and packaging at
a reasonable time in advance of such Option Closing Date.
5. Certain Covenants and Agreements of BCB. BCB covenants and agrees
with the several Underwriters as follows:
13
(a) If Rule 430A of the Regulations is employed, BCB will timely
file the Prospectus pursuant to and in compliance with Rule 424(b) of the
Regulations and will advise the Representatives of the time and manner of
such filing.
(b) BCB will not file or publish any amendment or supplement to
the Registration Statement, Preliminary Prospectus or Prospectus at any time
before the completion (in the opinion of the Underwriters' counsel) of the
distribution of the Shares by the Underwriters that is not (i) in compliance
with the Regulations and (ii) approved by the Representatives (such approval
not to be unreasonably withheld or delayed).
(c) BCB will advise the Representatives immediately, and confirm
such advice in writing, (i) when any post-effective amendment to the
Registration Statement is filed with the SEC under Rule 462(c) under the Act
or otherwise, (ii) when any Rule 462(b) Registration Statement is filed,
(iii) of the receipt of any comments from the SEC concerning the Registration
Statement, (iv) when any post-effective amendment to the Registration
Statement becomes effective, or when any supplement to the Prospectus or any
amended Prospectus has been filed, (v) of any request of the SEC for
amendment or supplementation of the Registration Statement or Prospectus or
for additional information, (vi) during the period when the Prospectus is
required to be delivered under the Act and Regulations, of the happening of
any event as a result of which the Registration Statement or the Prospectus
would include an untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein not misleading, (vii)
during the period noted in clause (vi) above, of the need to amend the
Registration Statement or supplement the Prospectus to comply with the Act,
(viii) of the issuance by the SEC 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, and (ix)
of the suspension of the qualification of any of the Shares for offering or
sale in any jurisdiction in which the Underwriters intend to make such offers
or sales, or the initiation or threatening of any proceedings for any of such
purposes known to BCB. BCB will use its best efforts to prevent the issuance
of any such stop order or of any order preventing or suspending such use, and
if any such order is issued, to obtain as soon as possible the lifting
thereof.
(d) BCB has delivered to the Representatives, without charge, as
many copies of each Preliminary Prospectus as the Representatives have
reasonably requested. BCB will deliver to the Representatives, without
charge, from time to time during the period when delivery of the Prospectus
is required under the Act, such number of copies of the Prospectus (as
supplemented or amended) as the Representatives may reasonably request. BCB
hereby consents to the use of such copies of the Preliminary Prospectus and
the Prospectus for purposes permitted by the Act, the Regulations and the
securities or Blue Sky laws of the states or foreign jurisdictions in which
the Shares are offered by the several Underwriters and by all dealers to whom
Shares may be sold, both in connection with the offering and sale of the
Shares and for such period of time thereafter as the Prospectus is required
by the Act to be delivered in connection with sales by any Underwriter or
dealer.
14
BCB has furnished or will furnish to the Representatives at least three
original signed copies of the Registration Statement as originally filed and
of all amendments and supplements thereto, whether filed before or after the
Effective Date, at least three copies of all exhibits filed therewith and of
all consents and certificates of experts, and will deliver to the
Representatives such number of conformed copies of the Registration
Statement, including financial statements and exhibits, and all amendments
thereto, as the Representatives may reasonably request.
(e) BCB will comply with the Act, the Regulations, the Exchange
Act and the rules and regulations thereunder so as to permit the continuance
of sales of and dealings in the Shares for as long as may be necessary to
complete the distribution of the Shares as contemplated hereby.
(f) BCB will furnish such information and pay such filing fees and
other expenses as may be required, and otherwise cooperate in the
registration or qualification of the Shares, or exemption therefrom, for
offering and sale by the several Underwriters and by dealers under the
securities or Blue Sky laws of such jurisdictions in which the
Representatives determine to offer the Shares, after consultation with BCB,
and will file such consents to service of process or other documents
necessary or appropriate in order to effect such registration or
qualification; provided, however, that no such qualification shall be
required in any jurisdiction where, solely as a result thereof, BCB would be
subject to taxation or qualification as a foreign corporation doing business
in such jurisdiction where it is not now so qualified or to take any action
which would subject it to service of process in suits, other than those
arising out of the offering or sale of the Shares, in any jurisdiction where
it is not now so subject. BCB will, from time to time, prepare and file such
statements and reports as are or may be required to continue such
qualification in effect for so long a period as is required under the laws of
such jurisdictions for such offering and sale.
(g) Subject to Section 5(b) hereof, in case of any event
(occurring at any time within the period during which, in the opinion of
counsel for the Underwriters, a prospectus is required to be delivered under
the Act or the Regulations), as a result of which any Preliminary Prospectus
or the Prospectus, as then amended or supplemented, would contain, in the
opinion of counsel for the Underwriters, an untrue statement of a material
fact, or omit to state any material fact necessary in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading, or, if it is necessary at any time to amend any Preliminary
Prospectus or the Prospectus to comply with the Act or the Regulations or any
applicable state securities or Blue Sky laws, BCB promptly will prepare and
file with the SEC, and any applicable state and foreign securities
commission, an amendment, supplement or document that will correct such
statement or omission or effect such compliance and will furnish to the
several Underwriters such number of copies of such amendments, supplements or
documents (in form and substance satisfactory to the Representatives and
counsel for the Underwriters) as the Representatives may reasonably request.
For purposes of this Section 5(g), BCB will provide such information to the
15
Representatives, the Underwriters' counsel and counsel to BCB as shall be
necessary to enable such persons to consult with BCB with respect to the need
to amend or supplement the Registration Statement, Preliminary Prospectus or
Prospectus or file any document, and shall furnish to the Representatives and
the Underwriters' counsel such further information as each may from time to
time reasonably request.
(h) BCB will make generally available to its security holders not
later than 45 days after the end of the period covered thereby, a
consolidated earnings statement of BCB (which need not be audited unless
required by the Act or the Regulations) that shall comply with Section 11(a)
of the Act and Rule 158 thereunder and cover a period of at least 12
consecutive months beginning not later than the first day of BCB's fiscal
quarter next following the Effective Date (or, if later, the effective date
of the Rule 462(b) Registration Statement).
(i) For a period of five years from the Effective Date, BCB will
deliver to the Representatives and, upon request, to each of the
Underwriters: (i) a copy of each report or document, including, without
limitation, reports on Forms 8-K, 10-C, 10-K and 10-Q (or such similar forms
as may be designated by the SEC), registration statements and any exhibits
thereto, filed or furnished to the SEC or any securities exchange or the
NASD, on the date each such report or document is so filed or furnished; (ii)
as soon as practicable, copies of any reports or communications (financial or
other) of BCB mailed to its security holders; and (iii) every material press
release in respect of BCB or its affairs that is released or prepared by BCB.
(j) During the course of the distribution of the Shares, BCB will
not take, directly or indirectly, any action designed to, or that could
reasonably be expected to, cause or result in stabilization or manipulation
of the price of the Common Stock.
(k) BCB has caused each person listed on Schedule II hereto to
execute an agreement (a "Lock-up Agreement") in form and substance
satisfactory to the Representatives and the Underwriters' counsel which
provides that for a period of 180 days from the date of the final Prospectus,
as amended or supplemented, such persons will not, without the prior written
consent of the Representatives, directly or indirectly, sell, offer or
contract to sell or grant any option to purchase or otherwise dispose of any
shares of Common Stock (or any securities convertible into or exercisable or
exchangeable for any shares of Common Stock). BCB has delivered such
agreements to the Representatives prior to the date of this Agreement.
Appropriate stop transfer instructions will be issued by BCB to the transfer
agent for the Common Stock, and a copy of such instructions will be delivered
to the Representatives.
(l) For a period of 180 days after the Effective Date, BCB will
not, without the prior written consent of the Representatives, offer, sell,
contract to sell or otherwise dispose of any Common Stock or any securities
convertible into or exercisable for any Common Stock or grant options to
purchase any Common Stock, except (i) the issuance of
16
Common Stock upon the exercise of currently outstanding options and warrants
as described in the Prospectus and (ii) the grant of options to purchase
Common Stock under BCB's currently outstanding stock option plans as
described in the Prospectus and the issuance of Common Stock upon the
exercise thereof.
(m) For a period of five years from the Effective Date, BCB will
use all reasonable efforts to maintain the listing of the Common Stock
(including, without limitation, the Shares) on the Nasdaq National Market or
on a national securities exchange.
(n) BCB shall, at its sole cost and expense, supply and deliver to
the Representatives and the Underwriters' counsel, within a reasonable period
from the Closing Date, transaction binders in such number and in such form
and content as the Representatives reasonably request.
(o) BCB will use the net proceeds from the sale of the Shares to
be sold by it hereunder substantially in accordance with the description set
forth in the Prospectus.
6. Payment of Fees and Expenses.
(a) Whether or not the transactions contemplated by this Agreement
are consummated and regardless of the reason this Agreement is terminated,
BCB will pay or cause to be paid, and bear or cause to be borne, all costs
and expenses incident to the performance of the obligations of BCB under this
Agreement, including: (i) the fees and expenses of the accountants and
counsel for BCB incurred in the preparation of the Registration Statement and
any post-effective amendments thereto (including financial statements and
exhibits), Preliminary Prospectuses and the Prospectus and any amendments or
supplements thereto; (ii) printing and mailing expenses associated with the
Registration Statement and any post-effective amendments thereto, any
Preliminary Prospectus, the Prospectus, this Agreement, the Agreement Among
Underwriters, the power of attorney executed by each of the Underwriters, the
Selected Dealers Agreement and related documents and the Preliminary Blue Sky
Memorandum (and any supplement thereto); (iii) the costs and expenses
incident to the authentication, issuance, sale and delivery of the Shares to
the Underwriters; (iv) the fees, expenses and all other costs of qualifying
the Shares for sale under the securities or Blue Sky laws of those states or
foreign jurisdictions in which the Shares are to be offered or sold,
including the reasonable fees and expenses of Underwriters' counsel, except
such fees shall not exceed $5,000; (v) the fees, expenses and other costs of,
or incident to, securing any review or approvals by or from the NASD; (vi)
the filing fees of the SEC; (vii) the cost of furnishing to the Underwriters
copies of the Registration Statement, Preliminary Prospectuses and
Prospectuses as herein provided; (viii) BCB's travel expenses in connection
with meetings with the brokerage community and institutional investors; (ix)
the costs and expenses associated with settlement in same day funds
(including, but not limited to, interest or cost of funds expenses), if
desired by BCB; (x) any fees or costs payable to the Nasdaq National Market
as a result of the offering; (xi) the cost of printing certificates for the
Shares; (xii) the costs and charges of any transfer
17
agent; (xiii) all taxes, if any, on the issuance, delivery and transfer of
the Shares sold by BCB; and (xiv) all other costs and expenses reasonably
incident to the performance of BCB's obligations hereunder that are not
otherwise specifically provided for in this Section 6(a).
(b) BCB shall pay as due any state or foreign registration,
qualification and filing fees and any accountable out-of-pocket disbursements
in connection with such registration, qualification or filing in the states
and foreign jurisdictions in which the Underwriters determine to offer or
sell the Shares.
(c) On the Closing Date, BCB shall pay the Underwriters a
non-accountable expense allowance in the amount of $100,000.
(d) If (i) the Underwriters are willing to proceed with the
offering, and the transactions contemplated by this Agreement are not
consummated because BCB elects not to proceed with the offering for any
reason or (ii) the Underwriters terminate this Agreement pursuant to Section
10(b) hereof, then BCB will reimburse the Underwriters for their reasonable
out-of-pocket expenses, including, without limitation, fees and disbursements
of counsel for the Underwriters, incurred in connection with investigating,
marketing and proposing to market the Shares or in contemplation of
performing their obligations hereunder, in an amount not to exceed $50,000.
7. Conditions of Underwriters' Obligations. The obligation of each
Underwriter to purchase and pay for the Firm Shares that it has agreed to
purchase hereunder on the Closing Date, and to purchase and pay for any
Optional Shares as to which it exercises its right to purchase under Section
4 on an Option Closing Date, is subject at the date hereof, the Closing Date
and any Option Closing Date to the continuing accuracy and fulfillment of the
representations and warranties of BCB, to the performance by BCB of its
covenants and obligations hereunder, and to the following additional
conditions:
(a) If required by the Regulations, the Prospectus shall have been
filed with the SEC pursuant to Rule 424(b) of the Regulations within the
applicable time period prescribed for such filing by the Regulations. On or
prior to the Closing Date or any Option Closing Date, as the case may be, no
stop order or other order preventing or suspending the effectiveness of the
Registration Statement or the sale of any of the Shares shall have been
issued under the Act or any state or foreign securities law, and no
proceedings for that purpose shall have been initiated or shall be pending
or, to the Underwriters' knowledge or the knowledge of BCB, shall be
contemplated by the SEC or by any authority in any jurisdiction designated by
the Underwriters pursuant to Section 5(f) hereof. Any request on the part of
the SEC or any state or foreign securities authority for additional
information shall have been complied with to the reasonable satisfaction of
counsel for the Underwriters.
18
(b) All corporate proceedings and other matters incident to the
authorization, form and validity of this Agreement, the Shares and the form
of the Registration Statement and the Prospectus, and all other legal matters
relating to this Agreement and the transactions contemplated hereby shall be
satisfactory in all material respects to counsel for the Underwriters. BCB
shall have furnished to such counsel all documents and information that they
may have reasonably requested to enable them to pass upon such matters.
(c) The Underwriters shall have received a copy of an executed
Lock-up Agreement from each person listed on Schedule II hereto.
(d) The Underwriters shall have received at or prior to the
Closing Date from the Underwriters' counsel a memorandum or summary, in form
and substance satisfactory to the Underwriters, with respect to the
qualification for offering and sale by the Underwriters of the Shares under
the securities or Blue Sky laws of such jurisdictions designated by the
Underwriters pursuant to Section 5(f) hereof.
(e) On the Closing Date and any Option Closing Date, there shall
have been delivered to the Underwriters signed opinions of Xxxxxxx & Xxx,
counsel for BCB, dated as of each such date and addressed to the Underwriters
to the effect set forth in Exhibit A hereto or to such effect as is otherwise
reasonably satisfactory to the Underwriters.
(f) At the Closing Date and any Option Closing Date: (i) the
Registration Statement and any post-effective amendment thereto and the
Prospectus and any amendments or supplements thereto shall contain all
statements that are required to be stated therein in accordance with the Act
and the Regulations and in all material respects shall conform to the
requirements of the Act and the Regulations, and neither the Registration
Statement nor any post-effective amendment thereto nor the Prospectus and any
amendments or supplements thereto shall contain any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading; (ii)
since the respective dates as of which information is given in the
Registration Statement and any post-effective amendment thereto and the
Prospectus and any amendments or supplements thereto, except as otherwise
stated therein, there shall have been no material adverse change in the
Business Conditions of BCB and the Subsidiaries taken as a whole from that
set forth therein, whether or not arising in the ordinary course of business;
(iii) since the respective dates as of which information is given in the
Registration Statement and the Prospectus or any amendment or supplement
thereto, there shall have been no event or transaction, contract or agreement
entered into by BCB or either of its Subsidiaries other than in the ordinary
course of business and as set forth in the
19
Registration Statement or Prospectus, that has not been, but would be
required to be, set forth in the Registration Statement or Prospectus; (iv)
since the respective dates as of which information is given in the
Registration Statement and any post-effective amendment thereto and the
Prospectus and any amendments or supplements thereto, there shall have been
no material adverse change, loss, reduction, termination or non-renewal of
any contract to which BCB or either of its Subsidiaries is a party, that has
not been, but would be required to be set forth in the Registration Statement
or Prospectus; and (v) no action, suit or proceeding at law or in equity
shall be pending or threatened against BCB or either of its Subsidiaries that
would be required to be set forth in the Prospectus, other than as set forth
therein, and no proceedings shall be pending or threatened against or
directly affecting BCB or either of its Subsidiaries before or by any
federal, state or other commission, board or administrative agency wherein an
unfavorable decision, ruling or finding would materially adversely affect the
Business Conditions of BCB and the Subsidiaries taken as a whole.
(g) The Representatives shall have received at the Closing Date
and any Option Closing Date certificates of the Chief Executive Officer and
the Chief Financial Officer of BCB dated as of the date of the Closing Date
or Option Closing Date, as the case may be, and addressed to the
Representatives, individually and as representatives of the several
Underwriters, to the effect that (i) the representations and warranties of
BCB in this Agreement are true and correct, as if made at and as of the
Closing Date or the Option Closing Date, as the case may be, and that BCB has
complied with all the agreements, fulfilled all the covenants and satisfied
all the conditions on its part to be performed, fulfilled or satisfied at or
prior to the Closing Date or the Option Closing Date, as the case may be, and
(ii) the signers of the certificate have carefully examined the Registration
Statement and the Prospectus and any amendments or supplements thereto, and
the conditions set forth in Section 7(g) hereof have been satisfied.
(h) At the time this Agreement is executed and at the Closing Date
and any Option Closing Date, the Representatives shall have received a
letter, dated the date of delivery thereof, addressed to the Representatives,
individually and as representative of the several Underwriters, in form and
substance satisfactory to the Representatives in all respects (including,
without limitation, the non-material nature of the changes or decreases, if
any, referred to in clause (iii) below) from Xxxxx & Company, Inc.
(i) confirming they are independent certified public
accountants within the meaning of the Act and the Regulations, and stating
that the section of the Registration Statement under the caption "Experts" is
correct insofar as it relates to them;
(ii) stating that, in their opinion, the consolidated
financial statements, schedules and notes of BCB audited by them and included
in the Registration Statement comply as to form in all material respects with
the applicable accounting requirements of the Act and the Regulations;
20
(iii) stating that, on the basis of specified procedures,
which included the procedures as specified by the American Institute of
Certified Public Accountants for a review of interim financial information,
as described in SAS No. 71, Interim Financial Information (with respect to
the latest unaudited consolidated financial statements of BCB included in the
Registration Statement), a reading of the latest available unaudited interim
consolidated financial statements of BCB (with an indication of the date of
the latest available unaudited interim financial statements), a reading of
the minutes of the meetings of the stockholders and the Boards of Directors
of BCB and the Subsidiaries, and audit and compensation committees of such
Boards, if any, and inquiries to certain officers and other employees of BCB
and the Subsidiaries responsible for operational, financial and accounting
matters and other specified procedures and inquiries, nothing has come to
their attention that would cause them to believe that (A) the unaudited
consolidated financial statements of BCB and the Subsidiaries included in the
Registration Statement, (I) do not comply in form and all material respects
with the applicable accounting requirements of the Act and the Regulations,
or (II) any material modifications should be made to such unaudited financial
statements for them to be in conformity with generally accepted accounting
principles; (B) at a specified date not more than five business days prior to
the date of such letter, there was any change in the capital stock or debt of
BCB or any decrease in net current assets, total assets or stockholders'
equity of BCB as compared with the amounts shown in the March 31, 1997
unaudited balance sheet of BCB included in the Registration Statement, or
that for the periods from April 1, 1997 to the date of the latest available
unaudited financial statements of BCB and to a specified date not more than
five days prior to the date of the letter, there were any decreases, as
compared to the corresponding periods in the prior year, in operating income
or total or per share amounts of net income, except in all instances for
changes, decreases or increases that the Registration Statement discloses
have occurred or may occur and except for such other changes, decreases or
increases which the Representatives shall in their sole discretion accept; or
(C) the unaudited pro forma financial statements included in the Registration
Statement do not comply as to form in all material respects with the
applicable accounting requirements of Rule 11-02 of Regulation S-X under the
Act and that the pro forma adjustments have not been properly applied to the
historical amounts in the compilation of those statements; and
(iv) stating that they have compared specific dollar amounts
(or percentages derived from such dollar amounts), numbers of shares and
other numerical data and financial information set forth in the Registration
Statement that have been specified by the Representatives prior to the date
of this Agreement (in each case to the extent that such dollar amounts,
percentages and other information is derived from the general accounting
records subject to the internal controls of BCB's or either of its
Subsidiaries' accounting systems, or has been derived directly from such
accounting records by analysis or comparison or has been derived from other
records and analyses maintained or prepared by BCB or either of its
Subsidiaries) with the results obtained from the application of readings,
inquiries and other appropriate procedures set forth in the letter, and found
them to be in agreement.
21
All financial statements and schedules included in material
incorporated by reference into the Prospectus shall be deemed included in the
Registration Statement for purposes of this subsection.
(i) There shall have been duly tendered to the Representatives for
the respective accounts of the Underwriters certificates representing all of
the Shares to be purchased by the Underwriters on the Closing Date or Option
Closing Date, as the case may be.
(j) All corporate and other proceedings and other matters incident
to the authorization, form and validity of this Agreement and the form of the
Registration Statement and Prospectus and all other legal matters related to
this Agreement and the transactions contemplated hereby shall be reasonably
satisfactory in all respects to counsel to the Underwriters. BCB shall have
furnished to such counsel all documents and information that they shall have
reasonably requested to enable them to pass upon such matters.
(k) At the Closing Date and any Option Closing Date, the
Representatives shall have been furnished such additional documents,
information and certificates as they shall have reasonably requested.
All such opinions, certificates, letters and documents shall be in
compliance with the provisions hereof only if they are reasonably
satisfactory in form and substance to the Representatives and the
Underwriters' counsel. BCB shall furnish the Representatives with such
conformed copies of such opinions, certificates, letters and other documents
as they shall reasonably request. If any condition to the Underwriters'
obligations hereunder to be fulfilled prior to or at the Closing Date or any
Option Closing Date, as the case may be, is not fulfilled, the
Representatives may on behalf of the several Underwriters, terminate this
Agreement with respect to the Closing Date or such Option Closing Date, as
applicable, or, if they so elect, waive any such conditions which have not
been fulfilled or extend the time for their fulfillment. Any such
termination shall be without liability of the Underwriters to BCB.
8. Indemnification and Contribution.
(a) BCB shall indemnify and hold harmless each Underwriter, and
each person, if any, who controls each Underwriter within the meaning of the
Act, against any and all loss, liability, claim, damage and expense
whatsoever, including, but not limited to, any and all reasonable expenses
incurred in investigating, preparing or defending against any litigation,
commenced or threatened, or any claim whatsoever or in connection with any
investigation or inquiry of, or action or proceeding that may be brought
against, the respective indemnified parties, arising out of or based upon any
breach of BCB's representations and warranties made in this Agreement or any
untrue statements or alleged untrue statements of material fact contained in
any Preliminary Prospectus, the Registration
22
Statement or the Prospectus, any application or other document (in this
Section 8 collectively called "application") filed in any jurisdiction in
order to qualify all or any part of the Shares under the securities laws
thereof or filed with the SEC or the NASD, or the omission or alleged
omission from any of the foregoing of a material fact required to be stated
therein or necessary to make the statements therein not misleading; provided,
however, that the foregoing indemnity shall not apply in respect of any
statement or omission made in reliance upon and in conformity with written
information furnished to BCB by any Underwriter through the Representatives
expressly for use in any Preliminary Prospectus, the Registration Statement
or Prospectus, or any amendment or supplement thereto, or in any application
or in any communication to the SEC, as the case may be; and further provided,
however, that the indemnification contained in this Section 8(a) with respect
to any Preliminary Prospectus shall not inure to the benefit of any
Underwriter (or to the benefit of any person controlling such Underwriter) on
account of any such loss, claim, liability or expense arising from the sale
of the Shares by such Underwriter to any person if a copy of the Prospectus
shall not have been delivered or sent to such person within the time required
by the Act and the Regulations, and the untrue statement or alleged untrue
statement or omission or alleged omission of a material fact contained in
such Preliminary Prospectus was corrected in the Prospectus, provided that
BCB has delivered the Prospectus to the several Underwriters in requisite
quantity on a timely basis to permit such delivery or sending. The
obligations of BCB under this Section 8(a) will be in addition to any
liability BCB may otherwise have.
(b) Each Underwriter, severally and not jointly, shall indemnify
and hold harmless BCB, each of the directors of BCB, each of the officers of
BCB who shall have signed the Registration Statement, and each other person,
if any, who controls BCB within the meaning of the Act to the same extent as
the foregoing indemnities from BCB to the several Underwriters, but only with
respect to any and all loss, liability, claim, damage or expense resulting
from statements or omissions, or alleged statements or omissions, if any,
made in any Preliminary Prospectus, Registration Statement or Prospectus or
any amendment or supplement thereof or any application in reliance upon, and
in conformity with written information furnished to BCB by any Underwriter
through the Representatives expressly for use in any Preliminary Prospectus,
the Registration Statement or Prospectus or any amendment or supplement
thereof or any application, as the case may be. The obligations of each
Underwriter under this Section 8(b) will be in addition to any liability
which such Underwriter may otherwise have.
(c) If any action, inquiry, investigation or proceeding is brought
against any person in respect of which indemnification may be sought pursuant
to Section 8(a) or (b) hereof, such person (hereinafter called the
"indemnified party") shall, promptly after notification of, or receipt of
service of process for, such action, inquiry, investigation or proceeding,
notify in writing the party or parties against whom indemnification is to be
sought (hereinafter called the "indemnifying party") of the institution of
such action, inquiry, investigation or proceeding. The indemnifying party,
upon the request of the indemnified party, shall assume the defense of such
action, inquiry, investigation or proceeding, including,
23
without limitation, the employment of counsel (reasonably satisfactory to
such indemnified party) and payment of expenses. No indemnification provided
for in this Section 8 shall be available to any indemnified party who shall
fail to give such notice if the indemnifying party does not have knowledge of
such action, inquiry, investigation or proceeding to the extent that such
indemnifying party has been materially prejudiced by the failure to give such
notice, but the omission to so notify the indemnifying party shall not
relieve the indemnifying party otherwise than under this Section 8. Such
indemnified party shall have the right to employ its or their own counsel in
any such case, but the fees and expenses of such counsel shall be at the
expense such indemnified party unless the employment of such counsel shall
have been authorized in writing by the indemnifying party in connection with
the defense of such action or if the indemnifying party shall not have
employed counsel reasonably satisfactory to the indemnified party or if such
indemnified party or parties shall have been advised by counsel that there
may be a conflict between the positions of the indemnifying party or parties
and of the indemnified party or parties or that there may be legal defenses
available to such indemnified party or parties different from or in addition
to those available to the indemnifying party or parties, in any of which
events the indemnified party or parties shall be entitled to select counsel
to conduct the defense to the extent determined by such counsel to be
necessary to protect the interests of the indemnified party or parties, and
the reasonable fees and expenses of such counsel shall be borne by the
indemnifying party. The indemnifying party shall be responsible for the fees
and disbursements of only one such counsel so engaged by the indemnified
party or parties. Expenses covered by the indemnification in this Section 8
shall be paid by the indemnifying party as they are incurred by the
indemnified party. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending or
threatened action in respect of which any indemnified party is or could have
been a party and indemnity could have been sought hereunder by such
indemnified party unless such settlement includes an unconditional release of
such indemnified party from all liability on any claims that are the subject
matter of such action. Anything in this Section 8 to the contrary
notwithstanding, an indemnifying party shall not be liable for any settlement
of a claim effected without its written consent, which consent shall not be
unreasonably withheld.
(d) If the indemnification provided for in this Section 8 is
unavailable or insufficient to hold harmless an indemnified party under
Section 8(a) or (b) hereof in respect of any losses, liabilities, claims,
damages or expenses (or actions, inquiries, investigations or proceedings in
respect thereof) referred to therein, except by reason of the failure to give
notice as required in Section 8(c) hereof (provided that the indemnifying
party does not have knowledge of the action, inquiry, investigation or
proceeding and to the extent such party has been materially prejudiced by the
failure to give such notice), then each indemnifying
24
party shall contribute to the amount paid or payable by such indemnified
party as a result of such losses, liabilities, claims, damages or expenses
(or actions, inquiries, investigations or proceedings in respect thereof in
such proportion as is appropriate to reflect the relative benefits received
by BCB on the one hand and the Underwriters on the other from the offering of
the Shares. If, however, the allocation provided by the immediately
preceding sentence is not permitted by applicable law, then each indemnifying
party shall contribute to such amount paid or payable by such indemnified
party in such proportion as is appropriate to reflect not only such relative
benefits but also the relative fault of BCB on the one hand and the
Underwriters on the other in connection with the statements or omissions
which resulted in such losses, liabilities, claims or expenses (or actions,
inquiries, investigations or proceedings in respect thereof), as well as any
other relevant equitable considerations. The relative benefits received by
BCB on the one hand and the Underwriters on the other shall be deemed to be
in the same proportion as the total net proceeds from the offering (before
deducting expenses) received by BCB bears to the total underwriting discount
and commissions received by the Underwriters, 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, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to
state a material fact relates to information supplied by BCB on the one hand
or the Underwriters on the other hand and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
BCB and the Underwriters agree that it would not be just and equitable
if contributions to this Section 8(d) were determined by pro rata allocation
(even if the Underwriters were treated as one entity for such purpose) or by
any other method of allocation that does not take account of the equitable
considerations referred to above in this Section 8(d). The amount paid or
payable by an indemnified party as a result of the losses, liabilities,
claims, damages or expenses (or actions, inquiries, investigations or
proceedings in respect thereof) referred to above in this Section 8(d) shall
be deemed to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this Section 8(d), (i)
the provisions of the Agreement Among Underwriters shall govern contribution
among Underwriters, (ii) no Underwriter (except as provided in the Agreement
Among Underwriters) shall be required to contribute any amount in excess of
the underwriting discounts and commissions applicable to the Shares purchased
by such Underwriter, and (iii) no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations in this Section
8(d) to contribute are several in proportion to their individual underwriting
obligations and not joint.
9. Representations and Agreements to Survive Delivery. Except as the
context otherwise requires, all representations, warranties and agreements
contained in this Agreement shall be deemed to be representations, warranties
and agreements at the Closing Date and any Option Closing Date. All such
representations, warranties and agreements of the Underwriters and BCB,
including, without limitation, the indemnity and contribution agreements
contained in Section 8 hereof and the agreements contained in Sections 6, 9,
10 and 13 hereof, shall remain operative and in full force and effect
regardless of any investigation made by or on behalf of any Underwriter or
any controlling person, and shall
25
survive delivery of the Shares and termination of this Agreement, whether
before or after the Closing Date or any Option Closing Date.
10. Effective Date of This Agreement and Termination Hereof.
(a) This Agreement shall become effective at 10:00 a.m.,
Philadelphia, Pennsylvania time, on the first business day following the
Effective Date or at the time of the public offering by the Underwriters of
the Shares, whichever is earlier, except that the provisions of Sections 6,
8, 9, 10 and 13 hereof shall be effective upon execution hereof. The time of
the public offering, for the purpose of this Section 10, shall mean the time
when any of the Shares are first released by the Underwriters for offering by
dealers. The Representatives and BCB may prevent the provisions of this
Agreement (other than those contained in Sections 6, 8, 9, 10 and 13) hereof
from becoming effective without liability of any party to any other party,
except as noted below, by giving the notice indicated in Section 10(c) hereof
before the time the other provisions of this Agreement become effective.
(b) The Representatives shall have the right to terminate this
Agreement at any time prior to the Closing Date or any Option Closing Date as
provided in Sections 7 and 11 hereof or if any of the following have
occurred: (i) since the respective dates as of which information is given in
the Registration Statement and the Prospectus, any material adverse change or
any development involving a prospective material adverse change in or
affecting the Business Conditions of BCB or the Subsidiaries, whether or not
arising in the ordinary course of business, that would, in the
Representatives' opinion, make the offering or delivery of the Shares
impracticable; (ii) any outbreak of hostilities or other national or
international calamity or crisis or change in economic, political or
financial market conditions if the effect on the financial markets of the
United States of such outbreak, calamity, crisis or change would, in the
Representatives' opinion, make the offering or delivery of the Shares
impracticable; (iii) any suspension or limitation of trading generally in
securities on the New York Stock Exchange, the American Stock Exchange, the
Nasdaq National Market or the over-the-counter market or any setting of
minimum prices for trading or the promulgation of any federal or state
statute, regulation, rule or order of any court or other governmental
authority that in the Representatives' opinion materially and adversely
affects trading on such exchange or the over-the-counter market; (iv) the
enactment, publication, decree or other promulgation of any federal or state
statute, regulation, rule or order of any court or other governmental
authority which in the Representatives' opinion materially and adversely
affects or will materially or adversely affect the business or operations of
BCB or the Subsidiaries; (v) declaration of a banking moratorium by either
United States, New York or Pennsylvania authorities; (vi) the taking of any
action by any federal, state or local government or agency in respect of its
monetary or fiscal affairs that in the Representatives' opinion has a
material adverse effect on the securities markets in the United States; or
(vii) trading in any securities of BCB shall have been suspended or halted by
NASD or the SEC.
26
(c) If the Representatives elect to prevent this Agreement from
becoming effective or to terminate this Agreement as provided in this Section
10, the Representatives shall notify BCB hereof promptly by telephone, telex,
telegraph, telegram or facsimile, confirmed by letter.
11. Default by an Underwriter.
(a) If any Underwriter or Underwriters shall default in its or
their obligation to purchase Firm Shares or Optional Shares hereunder, and if
the Firm Shares or Optional Shares with respect to which such default relates
do not exceed in the aggregate 10% of the number of Firm Shares or Optional
Shares, as the case may be, that all Underwriters have agreed to purchase on
the relevant Closing Date or Option Closing Date, then the Representatives
may make arrangements satisfactory to BCB for the purchase of such Firm
Shares by other persons, including any of the Underwriters, but if no such
arrangements are made by the relevant Closing Date or Option Closing Date,
such Firm Shares or Optional Shares to which the default relates shall be
purchased severally by the non-defaulting Underwriters in proportion to their
respective commitments hereunder.
(b) If such default relates to more than 10% of the Firm Shares or
Optional Shares, as the case may be, the Representatives may in their
discretion arrange for another party or parties (including a non-defaulting
Underwriter) to purchase such Firm Shares or Optional Shares to which such
default relates, on the terms contained herein. In the event that the
Representatives do not arrange for the purchase of the Firm Shares or
Optional Shares to which a default relates as provided in this Section 11,
this Agreement may be terminated by the Representatives or by BCB without
liability on the part of the non-defaulting several Underwriters (except as
provided in Section 8 hereof) or BCB (except as provided in Sections 6 and 8
hereof); provided that if such default occurs with respect to Optional Shares
after the Closing Date, this Agreement will not terminate as to the Firm
Shares or any Optional Shares purchased prior to such termination. Nothing
herein shall relieve a defaulting Underwriter of its liability, if any, to
the other several Underwriters and to BCB for damages occasioned by its
default hereunder.
(c) If the Firm Shares or Optional Shares to which the default
relates are to be purchased by the non-defaulting Underwriters, or are to be
purchased by another party or parties, the Representatives or BCB shall have
the right to postpone the Closing Date or any Option Closing Date, as the
case may be, for a reasonable period but not in any event exceeding seven
days, in order to effect whatever changes may thereby be made necessary in
the Registration Statement or the Prospectus or in any other documents and
arrangements, and BCB agrees to file promptly any amendment to the
Registration Statement or supplement to the Prospectus that in the opinion of
counsel for the Underwriters may thereby be made necessary. The terms
"Underwriters" and "Underwriter" as used in this Agreement shall include any
party substituted under this Section 11 with like effect as if it had
originally been a party to this Agreement with respect to such Firm Shares
and/or Optional Shares.
27
12. Information Furnished by Underwriters. The statement set forth on
the last paragraph at the bottom of the cover page of the Prospectus
regarding the terms of the Offering by the Underwriters, the legend on the
inside cover page regarding stabilization, the identity of the Underwriters
set forth in the first paragraph under the heading "Underwriting" and the
concession and reallowance figures appearing in the second paragraph under
the caption "Underwriting," constitute the only written information furnished
by reference or on behalf of any Underwriter referred to in Sections 1(b) and
8 hereof.
13. Notice. All communications hereunder, except as herein otherwise
specifically provided, shall be in writing and, if sent to any Underwriter,
shall be mailed, delivered, telexed, telegrammed, telegraphed or telecopied
and confirmed to such Underwriter, c/o Janney Xxxxxxxxxx Xxxxx Inc., 0000
Xxxxxx Xxxxxx, Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000, Attention: Xx. Xxxxxx X.
Xxxxx, with a copy to Xxxxx, Xxxx, Xxxxxxx & Xxxxxxx L.L.P., 000 00xx Xxxxxx,
Xxxxxxxxxx, X.X. 00000, Attention: Xxxxxx X. Xxxxxxx, Esquire, and Xxxxxxx X.
Xxxx, Esquire; and if sent to BCB, shall be mailed, delivered, telexed,
telegrammed, telegraphed or telecopied and confirmed to BCB Financial
Services Corporation, 000 Xxxxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxxxx 00000;
Attention: Xxxxxx X. Xxxxxx, with a copy to Xxxxxxx & Xxx, 000 Xxxxx Xxxxx
Xxxxxx, Xxxxxxx, Xxxxxxxxxxxx 00000, Attention: Xxxxxxx X. Xxxxxxx, Esquire.
14. Parties. This Agreement shall inure solely to the benefit of, and
shall be binding upon, the several Underwriters, BCB and the controlling
persons, directors and officers thereof, and their respective successors,
assigns, heirs and legal representatives, and no other person shall have or
be construed to have any legal or equitable right, remedy or claim under or
in respect of or by virtue of this Agreement or any provision herein
contained. The terms "successors" and "assigns" shall not include any
purchaser of the Shares merely because of such purchase.
15. Definition of Business Day. For purposes of this Agreement,
"business day" means any day on which the Nasdaq National Market is opened
for trading.
16. Counterparts. This Agreement may be executed in one or more
counterparts and all such counterparts will constitute one and the same
instrument.
17. Construction. This Agreement shall be governed by and construed in
accordance with the laws of the Commonwealth of Pennsylvania applicable to
agreements made and performed entirely within such Commonwealth.
28
If the foregoing correctly sets forth your understanding of our
agreement, please sign and return to BCB the enclosed duplicate hereof,
whereupon it will become a binding agreement in accordance with its terms.
Very truly yours,
BCB FINANCIAL SERVICES CORPORATION
By:
-----------------------------------
Xxxxxx X. Xxxxxx, Chairman and President
The foregoing Agreement is hereby confirmed and accepted as of the date first
above written.
XXXXXX XXXXXXXXXX XXXXX INC.
WHEAT FIRST BUTCHER SINGER
As Representatives of the Several Underwriters
named in Schedule I hereto
By: XXXXXX XXXXXXXXXX XXXXX INC.
By:
--------------------------------------------
Xxxxxx X. Xxxxx
First Vice President
By: WHEAT FIRST BUTCHER SINGER
By:
--------------------------------------------
Xxxxx X. Xxxxxxxx
Managing Director
29
SCHEDULE I
Schedule of Underwriters
Number of Firm Shares
Underwriter to be Purchased
----------------------------------------- ----------------------
Xxxxxx Xxxxxxxxxx Xxxxx Inc.................................. 600,000
Wheat First Butcher Singer................................... 600,000
-----------------
Total........................................................ 1,200,000
-----------------
-----------------
30
SCHEDULE II
Persons Who Are to Deliver Lock-Up Agreements
Lock-Up Agreements are to be delivered by the following persons and
entities immediately prior to the time the SEC declares the Registration
Statement effective:
Xxxxxx X. Xxxxxxx
Xxxxxx X. Xxxxxxx
Xxxxx X. Xxxxx, Xx.
Xxxx X. Xxxxxx
Xxxxxxx X. Xxxxx
Xxxxxx X. Xxxx
Xxxxxx X. XxXxxx, Xx.
Xxxxxx X. Xxxxxx
Xxxxxx Xxxx
Xxxxx X. Xxxxx
Xxxxxxx X. Xxxxxx
31
1,200,000 Shares
BCB Financial Services Corporation
Common Stock
$2.50 Par Value
------------------------------
UNDERWRITING AGREEMENT
------------------------------
Philadelphia, Pennsylvania
July 21, 1997
XXXXXX XXXXXXXXXX XXXXX INC.
WHEAT FIRST BUTCHER SINGER
c/o Janney Xxxxxxxxxx Xxxxx Inc.
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
Ladies and Gentlemen:
BCB Financial Services Corporation, a Pennsylvania corporation ("BCB"),
proposes to sell to the several underwriters identified above (the
"Underwriters"), 1,200,000 shares of BCB's Common Stock, par value $2.50 per
share (the "Common Stock"). The 1,200,000 shares of Common Stock to be sold
to the Underwriters by BCB are referred to herein as the "Firm Shares." The
respective amounts of the Firm Shares to be purchased by the several
Underwriters are set forth opposite their names in Schedule I hereto. The
Firm Shares shall be offered to the public at a public offering price of
$______ per Firm Share (the "Offering Price").
In order to cover over-allotments in the sale of the Firm Shares, the
Underwriters may purchase for the Underwriters' own accounts up to 180,000
additional shares of Common Stock from BCB within xxxxxx (30) days of the
date of the Underwriters purchase of the Firm Shares. Such 180,000
additional shares of Common Stock are referred to herein as the "Optional
Shares." If any Optional Shares are purchased, the Optional Shares shall be
purchased for offering to the public at the Offering Price and in accordance
with the terms and conditions set forth herein. The Firm Shares and the
Optional Shares are referred to collectively herein as the "Shares."
1. Representations and Warranties of BCB. BCB represents and warrants
to, and agrees with, the several Underwriters that:
(a) BCB has prepared, in conformity with the
requirements of the Securities Act of 1933, as amended (the
"Act"), and the rules and regulations (the "Regulations") of the
Securities and Exchange Commission (the "SEC") under the Act in
effect at all applicable times, and has filed with the SEC a
registration statement on Form SB-2 (File No. 333-27873) and one
or more amendments thereto for the purpose of registering the
Shares under the Act. Copies of such registration statement and
any amendments thereto, and all forms of the related prospectus
contained therein, have been delivered to the Underwriters.
Any preliminary prospectus included in such registration
statement or filed with the SEC pursuant to Rule 424(a) of the
Regulations is hereinafter called a "Preliminary Prospectus."
The various parts of such registration statement, including all
exhibits thereto and the information contained in the form of
final prospectus filed with the SEC pursuant to Rule 424(b) of
the Regulations in accordance with Section 5(a) of this Agreement
and deemed by virtue of Rule 424 of the Regulations to be part of
the registration statement at the time it was declared effective,
each as amended at the time the registration statement became
effective, including the information (if any) deemed to be part
of the registration statement at the time of effectiveness
pursuant to Rule 430A of the Regulations, are hereinafter
collectively called the "Registration Statement." The final
prospectus in the form included in the Registration Statement or
first filed with the SEC pursuant to Rule 424(b) of the
Regulations and any amendments or supplements thereto, including
the information (if any) deemed to be part of that prospectus at
the time of effectiveness pursuant to Rule 430A of the
Regulations, is hereinafter called the "Prospectus." All
references to the Registration Statement, the Preliminary
Prospectus and the Prospectus include all documents incorporated
therein by reference. If BCB has filed an abbreviated
registration statement to register additional Common Stock
pursuant to Rule 462(b) under the Act (the "Rule 462 Registration
Statement"), then any reference herein to the term "Registration
Statement" shall be deemed to include such 462 Registration
Statement.
(b) The Registration Statement has become effective under the Act,
and the SEC has not issued any stop order suspending the effectiveness of the
Registration Statement or preventing or suspending the use of the Preliminary
Prospectus, nor has the SEC instituted or threatened to institute proceedings
with respect to such an order. No stop order suspending the sale of the
Shares in any jurisdiction designated by the Underwriters as provided for
in Section 5(f) hereof has been issued, and no proceedings for that purpose
have been instituted or threatened. BCB has complied in all material
respects with all requests of the SEC, or requests of which BCB has been
advised of any state or foreign securities commission in a state or foreign
jurisdiction designated by the Underwriters as provided for in Section
5(f) hereof, for additional information to be included in the Registration
Statement, any Preliminary Prospectus or the Prospectus. Each Preliminary
Prospectus conformed to all the requirements of the Act and the Regulations
as of its date in all material respects and did not as of its date contain
any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the
2
statements therein, in light of the circumstances under which they were made,
not misleading, except the foregoing shall not apply to statements in or
omissions from any Preliminary Prospectus in reliance upon and in conformity
with information supplied to BCB in writing by or on behalf of the
Underwriters expressly for use therein. The Registration Statement, on the
date on which it was declared effective by the SEC (the "Effective Date") and
when any post-effective amendment thereof shall become effective, and the
Prospectus, at the time it is filed with the SEC including, if applicable,
pursuant to Rule 424(b), and on the Closing Date (as defined in Section 3
hereof) and any Option Closing Date (as defined in Section 4(b) hereof),
conformed and will conform in all material respects to all the requirements
of the Act and the Regulations, and did not and will not, on any of such
dates, include any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading, except that this representation and
warranty does not apply to statements in or omissions from the Registration
Statement or the Prospectus made in reliance upon and in conformity with
information furnished to BCB in writing by or on behalf of the Underwriters
expressly for use therein.
(c) BCB is a corporation duly organized, validly existing and in
good standing under the laws of the Commonwealth of Pennsylvania, with all
necessary corporate power and authority, and all required licenses, permits,
certifications, registrations, approvals, consents and franchises to own or
lease and operate its properties and to conduct its current business as
described in the Prospectus, and to execute, deliver and perform this
Agreement. BCB is duly registered with the Board of Governors of the Federal
Reserve System (the "Federal Reserve Board") as a bank holding company under
the Bank Holding Company Act of 1956, as amended (the "BHCA").
(d) BCB's only direct or indirect subsidiaries are Berks County
Bank (the "Bank") and Berks Mortgage Company (the "Mortgage Company") and BCB
does not own or control, directly or indirectly, more than 5% of any class of
equity security of any corporation, association or other entity other than
the Bank and the Mortgage Company (collectively, the "Subsidiaries"). The
Bank is a Pennsylvania-chartered commercial bank and the Mortgage Company is
a Pennsylvania business trust and both Subsidiaries are duly organized,
validly existing and in good standing under the laws of the Commonwealth of
Pennsylvania, with all necessary corporate power and authority, and all
required licenses, permits, certifications, registrations, approvals,
consents and franchises to own or lease and operate their respective
properties and to conduct their respective businesses as described in the
Prospectus. The deposit accounts of the Bank are insured by the Bank
Insurance Fund administered by the Federal Deposit Insurance Corporation (the
"FDIC") up to the maximum amount provided by law; and no proceedings for the
modification, termination or revocation of any such insurance are pending or,
to the knowledge of BCB, threatened. BCB and each of its Subsidiaries are
duly qualified to do business as foreign corporations, and are in good
standing, in all jurisdictions in which such qualification is required,
except where the failure to so qualify would not have a material adverse
effect on the properties, condition (financial or otherwise), results of
operations
3
business (collectively, the "Business Conditions") of BCB and the
Subsidiaries taken as a whole.
(e) The outstanding shares of capital stock of each of the
Subsidiaries has been duly authorized and validly issued, are fully paid and
non-assessable and are owned, directly or indirectly, by BCB free and clear
of all liens, encumbrances and security interests; and no options, warrants
or other rights to purchase, agreements or other obligations to issue, or
other rights to convert any obligations into, shares of capital stock or
ownership interests in either of the Subsidiaries or securities convertible
into or exchangeable for capital stock of, or other ownership interests in,
either of the Subsidiaries are outstanding.
(f) This Agreement has been duly authorized, executed and
delivered by BCB and constitutes its legal, valid and binding obligation,
enforceable against BCB in accordance with its terms, except as enforcement
may be limited by bankruptcy, insolvency or other similar laws affecting the
enforcement of creditors' rights generally and subject to applicability of
general principles of equity and except, as to this Agreement, as rights to
indemnity and contribution may be limited by federal and state securities
laws or principles of public policy.
(g) The execution, delivery and performance of this Agreement and
the transactions contemplated herein, do not and will not, with or without
the giving of notice or the lapse of time, or both, (i) conflict with any
term or provision of BCB's or either of the Subsidiaries' Articles of
Incorporation or Bylaws; (ii) result in a breach of, constitute a default
under, result in the termination or modification of, result in the creation
or imposition of any lien, security interest, charge or encumbrance upon any
of the properties of BCB or either of the Subsidiaries or require any payment
by BCB or either of the Subsidiaries or impose any liability on BCB or either
of the Subsidiaries pursuant to, any contract, indenture, mortgage, deed of
trust, commitment or other agreement or instrument to which BCB or either of
the Subsidiaries is a party or by which any of their respective properties
are bound or affected other than this Agreement; (iii) assuming compliance
with all applicable state securities ("Blue Sky") laws and the rules of the
National Association of Securities Dealers, Inc. ("NASD") applicable to the
offer and sale of the Shares, violate any law, rule, regulation, judgment,
order or decree of any government or governmental agency, instrumentality or
court, domestic or foreign, having jurisdiction over BCB or either of the
Subsidiaries or any of their respective properties or businesses; or (iv)
result in a breach, termination or lapse of BCB's or either of the
Subsidiaries' corporate power and authority to own or lease and operate their
respective properties and conduct their respective businesses.
(h) At the date or dates indicated in the Prospectus, BCB had the
duly authorized and outstanding capitalization set forth in the Prospectus
under the caption "Capitalization" and will have, as of the issuance of the
Firm Shares on the Closing Date, the as adjusted capitalization set forth
therein as of the date indicated in the Prospectus. On the Effective Date,
the Closing Date and any Option Closing Date, there will be no
4
options or warrants or other outstanding rights to purchase, agreements or
obligations to issue, or agreements or other rights to convert or exchange any
obligation or security into, capital stock of BCB or securities convertible
into or exchangeable for capital stock of BCB, except as described in the
Prospectus or the grant of options after the date of the Prospectus under
option plans of the Company described in the Prospectus. The information in
the Prospectus insofar as it relates to all outstanding options and other
rights to acquire securities of BCB as of the Effective Date and immediately
prior to the Closing Date and any Option Closing Date is true and correct in
all material respects.
(i) The currently outstanding shares of BCB's capital stock have
been duly authorized and are validly issued, fully paid and non-assessable,
and none of such outstanding shares of BCB's capital stock has been issued in
violation of any preemptive rights of any security holder of BCB. The
holders of the outstanding shares of BCB's capital stock are not subject to
personal liability solely by reason of being such holders, except to the
extent, if any, such holder is subject to any state or local tax liability.
All prior offers and sales of BCB's capital stock were at all relevant times
registered under the Act or exempt from the registration requirements of the
Act and were duly registered with or the subject of an available exemption
from the registration requirements of the applicable state securities or Blue
Sky laws, except for such offers and sales which are described in the
Registration Statement. The failure to duly register or satisfy an
applicable exemption from registration pursuant to the Act and/or applicable
state securities or Blue Sky laws with respect to any prior offers and sales
of BCB's capital stock which are described in the Registration Statement,
will not, either individually or in the aggregate, have a material adverse
effect on the Business Conditions of BCB and the Subsidiaries taken as a
whole. The authorized capital stock of BCB including, without limitation,
the outstanding Common Stock, the Shares being issued, and the outstanding
options to purchase shares of Common Stock, conform in all material respects
with the descriptions thereof in the Prospectus, and such descriptions
conform in all material respects with the instruments defining the same.
(j) When the Shares have been duly delivered against payment
therefor as contemplated by this Agreement, the Shares will be validly
issued, fully paid and non-assessable, and the holders thereof will not be
subject to personal liability solely by reason of being such holders, except
to the extent, if any, such holder is subject to any state or local tax
liability. The certificates representing the Shares are in proper legal form
under, and conform in all respects to the requirements of, the Pennsylvania
Business Corporation Law, as amended (the "PBCL"). Neither the filing of the
Registration Statement nor the offering or sale of the Shares as contemplated
by this Agreement gives any security holder of BCB any rights for or relating
to the registration of any Common Stock or any other capital stock of BCB or
any rights to convert or have redeemed or otherwise receive anything of value
with respect to any other security of BCB.
(k) No consent, approval, authorization, order, registration,
license or permit of, or filing or registration with, any court, government,
governmental agency, instrumentality or other regulatory body or official is
required for the valid and legal execution, delivery and performance by BCB
of this Agreement and the consummation of the transactions contemplated
hereby or described in the Prospectus, except such as may be required for the
5
registration of the Shares under the Act, the Regulations and the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and for compliance
with the applicable state securities or Blue Sky laws or the Bylaws, rules
and other pronouncements of the NASD.
(l) The Common Stock (including the Shares) has been registered
pursuant to Section 12(g) of the Exchange Act. The issued and outstanding
shares of Common Stock (including the Shares) are included for quotation on
the Nasdaq National Market. Neither BCB nor, to BCB's knowledge, any other
person has taken any action designed to cause, or likely to result in, the
termination of the registration of the Common Stock under the Exchange Act.
BCB has not received any notification that the SEC or the NASD is
contemplating terminating such registration or inclusion.
(m) The statements in the Registration Statement and Prospectus,
insofar as they are descriptions of or references to contracts, agreements or
other documents, are accurate in all material respects and present or
summarize fairly, in all material respects, the information required to be
disclosed under the Act or the Regulations, and there are no contracts,
agreements or other documents, instruments or transactions of any character
required to be described or referred to in the Registration Statement or
Prospectus or to be filed as exhibits to the Registration Statement that have
not been so described, referred to or filed, as required.
(n) Each contract or other instrument (however characterized or
described) to which BCB or either of its Subsidiaries is a party or by which
any of their respective properties or businesses is bound or affected and
which is material to the conduct of BCB's or either of its Subsidiaries',
business has been duly and validly executed by BCB or either of its
Subsidiaries, as applicable, and, to the knowledge of BCB, by the other
parties thereto. Each such contract or other instrument is in full force and
effect and is enforceable in all material respects against the parties
thereto in accordance with its terms, except as enforcement may be limited by
bankruptcy, insolvency or other similar laws affecting the enforcement of
creditors' rights generally and subject to applicability of general
principles of equity, and neither BCB nor either of its Subsidiaries is, and
to the knowledge of BCB, no other party is, in default thereunder, and no
event has occurred that, with the lapse of time or the giving of notice, or
both, would constitute a default under any such contract or other instrument.
All necessary consents under such contracts or other instruments to the
disclosure in the Prospectus with respect thereto have been obtained.
(o) The consolidated financial statements of BCB (including the
notes thereto) filed as part of any Preliminary Prospectus, the Prospectus
and the Registration Statement present fairly, in all material respects, the
financial position of BCB as of the respective dates thereof, and the results
of operations and cash flows of BCB for the periods indicated therein, all in
conformity with generally accepted accounting principles. The supporting
notes included in the Registration Statement fairly state in all material
respects the information required to be stated therein in relation to the
financial statements taken as a whole. The financial information included in
the Prospectus under the captions "Prospectus
6
Summary - Summary Selected Consolidated Financial Data" and "Recent
Developments" pursuant to applicable accounting and securities law standards,
presents fairly the information shown therein and has been compiled on a
basis consistent with that of the audited consolidated financial statements
included in the Registration Statement. The unaudited pro forma adjustments
to financial information included in the Registration Statement have been
properly applied, pursuant to applicable accounting and securities law
standards, to the historical amounts in the compilation of that information
to reflect the sale by BCB of 1,200,000 shares of Common Stock offered
thereby at an assumed offering or actual price set forth in the Preliminary
Prospectus or the Prospectus, as the case may be, and the application of the
estimated net proceeds therefrom.
(p) Since the respective dates as of which information is given in
the Registration Statement and the Prospectus, except as otherwise stated
therein, there has not been (i) any material adverse change (including,
whether or not insured against, any material loss or damage to any material
assets), or development involving a prospective material adverse change, in
the Business Conditions of BCB and the Subsidiaries taken as a whole; (ii)
any material adverse change, loss, reduction, termination or non-renewal of
any material contract to which BCB or either of its Subsidiaries is a party;
(iii) any transaction entered into by BCB or either of its Subsidiaries not
in the ordinary course of its business that is material to BCB; (iv) any
dividend or distribution of any kind declared, paid or made by BCB on its
capital stock, except for and to the extent described in the Prospectus; (v)
any liabilities or obligations, direct or indirect, incurred by BCB or either
of its Subsidiaries that are material to BCB or either of its Subsidiaries;
(vi) any reduction in the capitalization of BCB or either of its Subsidiaries;
or (vii) any change in the indebtedness of BCB or either of its Subsidiaries
that is material to BCB or either of its Subsidiaries. Neither BCB nor
either of its Subsidiaries has any contingent liabilities or obligations that
are material and that are not expressly disclosed in the Prospectus.
(q) BCB has not distributed, and will not distribute, any offering
material in connection with the offering and sale of the Shares other than
the Registration Statement, a Preliminary Prospectus, the Prospectus and
other material, if any, permitted by the Act and the Regulations. Neither
BCB nor any of its officers, directors or affiliates has taken, nor shall BCB
or such persons take, any action designed to, or that might be reasonably
expected to, cause or result in stabilization or manipulation of the price of
the Common Stock.
(r) BCB and the Subsidiaries have filed with the appropriate
federal, state and local governmental agencies, and all foreign countries and
political subdivisions thereof, all tax returns that are required to be filed
or have duly obtained extensions of time for the filing thereof and have paid
all taxes shown on such returns or otherwise due and all material assessments
received by them to the extent that the same have become due. Neither BCB
nor either of its Subsidiaries has executed or filed with any taxing
authority, foreign or domestic, any agreement extending the period for
assessment or collection of any income or other tax and none of them is a
party to any pending action or proceeding by any
7
foreign or domestic governmental agency for the assessment or collection of
taxes, and no claims for assessment or collection of taxes have been asserted
against BCB or either of its Subsidiaries that might materially adversely
affect the Business Conditions of BCB and the Subsidiaries taken as a whole.
(s) To BCB's knowledge, Xxxxx & Company, Inc., who have certified
the consolidated financial statements of BCB included as part of the
Registration Statement, are independent certified public accountants with
respect to BCB as required by the Act and the Regulations.
(t) Neither BCB nor either of its Subsidiaries is in violation of,
or in default under, any of the terms or provisions of (i) its Articles of
Incorporation or Bylaws or similar governing instruments, (ii) any indenture,
mortgage, deed of trust, contract, commitment or other agreement or
instrument to which it is a party or by which it or any of its assets or
properties is bound or affected, (iii) any law, rule, regulation, judgment,
order or decree of any government or governmental agency, instrumentality or
court, domestic or foreign, having jurisdiction over it or any of its
properties or business, or (iv) any license, permit, certification,
registration, approval, consent or franchise, except with respect to clause
(ii), (iii) or (iv) above, where any such default would not have a material
adverse effect on the Business Conditions of BCB and the Subsidiaries taken
as a whole.
(u) Except as expressly disclosed in the Prospectus, there are no
claims, actions, suits, protests, proceedings, arbitrations, investigations
or inquiries pending before, or, to BCB's knowledge, threatened or
contemplated by, any governmental agency, instrumentality, court or tribunal,
domestic or foreign, or before any private arbitration tribunal to which BCB
or either of its Subsidiaries is or may be made a party that could reasonably
be expected to affect the validity of any of the outstanding shares of Common
Stock, or that, if determined adversely to BCB or either of its Subsidiaries
would, in any case or in the aggregate, result in any material adverse change
in the Business Conditions of BCB and the Subsidiaries taken as a whole, nor
to BCB's knowledge is there any reasonable basis for any such claim, action,
suit, protest, proceeding, arbitration, investigation or inquiry. There are
no outstanding orders, judgments or decrees of any court, governmental
agency, instrumentality or other tribunal enjoining BCB or either of its
Subsidiaries from, or requiring BCB or either of its Subsidiaries to take or
refrain from taking, any action, or to which BCB or either of its
Subsidiaries or their respective properties, assets or businesses are bound
or subject.
(v) Each of BCB and the Subsidiaries owns, or possesses adequate
rights to use, all trademarks, trademark registrations, applications for
trademark registration, trade names, service marks, licenses, copyrights, and
other proprietary information necessary for, used in, or proposed to be used
in, the conduct of the business of BCB as described in the Prospectus
(collectively, the "Intellectual Property"). To BCB's knowledge, BCB has not
infringed, is not infringing and BCB has not received any notice of conflict
with, the asserted rights of others with respect to the Intellectual Property
that, individually or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, could materially
8
adversely affect the Business Conditions of BCB and the Subsidiaries taken as
a whole, and BCB knows of no reasonable basis therefor. To the knowledge of
BCB, no other parties have infringed upon or are in conflict with any
Intellectual Property.
(w) Each of BCB and the Subsidiaries has good and marketable title
to all property described in the Prospectus as being owned by it, free and
clear of all liens, security interests, charges or encumbrances and the like,
except such as are expressly described or referred to in the Prospectus or
such as do not materially affect the Business Conditions or the conduct of
the business of BCB and the Subsidiaries as described in the Prospectus.
Each of BCB and the Subsidiaries has insured its property against loss or
damage by fire or other casualty, in amounts reasonably believed by BCB to be
adequate, and maintains insurance against such other risks as management of
BCB deems appropriate. All real and personal property leased by BCB and the
Subsidiaries as described or referred to in the Prospectus, is held by BCB
and the Subsidiaries, as applicable, under valid leases. All real property
owned by BCB and the Subsidiaries (including offices and real estate acquired
through foreclosure or deed-in-lieu thereof) and all real property securing
any loans originated and/or purchased by BCB and the Subsidiaries
(collectively, the "Real Property") are, to the knowledge of BCB, in
compliance with all federal, state and local statutes, ordinances,
regulations, rules, standards and requirements of common law concerning or
relating to industrial hygiene and the protection of health and the
environment (collectively, "the Environmental Laws"), except to the extent
that any failure in such compliance would not materially adversely affect the
Business Conditions of BCB and the Subsidiaries taken as a whole. To the
knowledge of BCB, there are no conditions on, about, beneath or arising from
the Real Property, that might give rise to liability, the imposition of a
statutory lien or require a "Response," "Removal" or "Remedial Action," as
defined herein, under any of the Environmental Laws, and, in each case, that
would materially adversely affect the Business Conditions of BCB and the
Subsidiaries taken as a whole except as described in the Prospectus. Except
as expressly disclosed in the Prospectus, or which will not materially
adversely affect the Business Conditions of BCB and the Subsidiaries taken as
a whole, (i) neither BCB nor either of its Subsidiaries has received notice
or has knowledge of any claim, demand, investigation, regulatory action, suit
or other action instituted or threatened against BCB or either of its
Subsidiaries or any portion of the Real Property relating to any of the
Environmental Laws and (ii) neither BCB nor either of its Subsidiaries has
received any notice of material violation, citation, complaint, order,
directive, request for information or response thereto, notice letter, demand
letter or compliance schedule to or from any governmental or regulatory
agency arising out of or in connection with "hazardous substances" (as
defined by applicable Environmental Laws) on, about, beneath, arising from or
generated at the Real Property. As used in this subsection, the terms
"Response, " Removal" and "Remedial Action" shall have the respective
meanings assigned to such terms under Sections 101(23) - 101(25) of the
Comprehensive Environmental Response, Compensation and Liability Act, as
amended by the Superfund Amendments and Reauthorization Act, 42 U.S.C.
9601(23) - 9601(25).
9
(x) Each of BCB and the Subsidiaries maintains a system of
internal accounting controls sufficient to provide reasonable assurances
that: (i) transactions are executed in accordance with management's general
or specific authorization; (ii) transactions are recorded as necessary in
order to permit preparation of financial statements in accordance with
generally accepted accounting principles and to maintain accountability for
assets; (iii) access to assets is permitted only in accordance with
management's general or specific authorization; and (iv) the recorded
accountability for assets is compared with existing assets at reasonable
intervals and appropriate action is taken with respect to any differences.
(y) Except for the plans that are expressly disclosed in the
Prospectus or are not required to be disclosed therein, neither BCB nor
either of its Subsidiaries has any employee benefit plan, profit sharing
plan, employee pension benefit plan or employee welfare benefit plan or
deferred compensation arrangements ("Plans") that are subject to the
provisions of the Employee Retirement Income Security Act of 1974, as
amended, or the rules and regulations thereunder ("ERISA"). All Plans that
are subject to ERISA are in compliance with ERISA, in all material respects,
and, to the extent required by the Internal Revenue Code of 1986, as amended
(the "Code"), in compliance with the Code in all material respects. Neither
BCB nor either of its Subsidiaries has any employee pension benefit plan that
is subject to Part 3 of Subtitle B of Title I or ERISA or any defined benefit
plan or multi-employer plan. Neither BCB nor either of its Subsidiaries has
maintained retiree life or retiree health insurance plans that are employee
welfare benefit plans providing for continuing benefit or coverage for any
employee or any beneficiary of any employee after such employee's termination
of employment, except as required by Section 4980B of the Code and except as
disclosed in the Prospectus. No fiduciary or other party in interest with
respect to any of the Plans has caused any of such Plans to engage in a
prohibited transaction as defined in Section 406 of ERISA. As used in this
subsection, the terms "defined benefit plan," "employee benefit plan,"
"employee pension benefit plan," "employee welfare benefit plan," "fiduciary"
and "multiemployer plan" shall have the respective meanings assigned to such
terms in Section 3 of ERISA.
(z) No labor dispute exists with BCB's or the Subsidiaries'
employees, and to BCB's knowledge, no such labor dispute is threatened. BCB
has no knowledge of any existing or threatened labor disturbance by the
employees of any of the principal suppliers, contractors or customers of BCB
or the Subsidiaries that would materially adversely affect the Business
Conditions of BCB and the Subsidiaries taken as a whole. None of BCB's or
the Subsidiaries' employees is covered by a collective bargaining agreement
and no union organizing activity exists with respect to any of such employees.
(aa) Neither BCB nor either of its Subsidiaries has incurred any
liability for any finder's fees or similar payments in connection with the
transactions contemplated herein other than as disclosed in the Prospectus.
10
(bb) BCB is familiar with the Investment Company Act of 1940, as
amended (the "1940 Act"), and the rules and regulations thereunder, and has
in the past conducted, and BCB intends to conduct, its affairs in such a
manner as to ensure that it will not be an "investment company" within the
meaning of the 1940 Act and the rules and regulations thereunder.
(cc) No statement, representation, warranty or covenant made by BCB
or either of its Subsidiaries in this Agreement or in any certificate or
document required by this Agreement to be delivered to the Underwriters
is, or as of the Closing Date or any Option Closing Date will be, inaccurate,
untrue or incorrect in any material respect. No transaction has occurred or
is proposed between or among BCB or either of its Subsidiaries and any of
their respective officers, directors or stockholders or any affiliate of the
foregoing, that is required to be described in and is not described in the
Registration Statement and the Prospectus.
(dd) Neither BCB or either of its Subsidiaries nor any officer,
director, employee, partner, agent or other person acting on behalf of BCB or
either of its Subsidiaries has, directly or indirectly, given or agreed to
give any money, property or similar benefit or consideration to any customer
or supplier (including any employee or agent of any customer or supplier) or
official or employee of any agency or instrumentality of any government
(foreign or domestic) or political party or candidate for office (foreign or
domestic) or any other person who was, is or in the future may be in a
position to affect the Business Conditions of BCB and the Subsidiaries taken
as a whole or any actual or proposed business transaction of BCB or either of
its Subsidiaries that (i) could subject BCB or either of its Subsidiaries to
any liability (including, but not limited to, the payment of monetary
damages) or penalty in any civil, criminal or governmental action or
proceeding that would have a material adverse effect on the Business
Conditions of BCB and the Subsidiaries taken as a whole or (ii) with respect
to BCB, either of its Subsidiaries, or any officer or director thereof,
violates any law, rule or regulation to which BCB or either of it
Subsidiaries is subject.
Any certificate signed by any officer of BCB or either of its
Subsidiaries in such capacity and delivered to the Underwriters or to
counsel for the Underwriters pursuant to this Agreement shall be deemed a
representation and warranty by BCB or either of its Subsidiaries, as the case
may be, to the several Underwriters as to the matters covered thereby.
2. Purchase and Sale of Firm Shares. On the basis of the
representations, warranties, covenants and agreements contained herein, but
subject to the terms and conditions set forth herein, BCB shall sell the Firm
Shares to the several Underwriters at the Offering Price less the
Underwriting Discounts and Commissions shown on the cover page of the
Prospectus, and the Underwriters, severally and not jointly, shall purchase
from BCB on a firm commitment basis, at the Offering Price less the
Underwriting Discounts and Commissions shown on the cover page of the
Prospectus, the respective amounts of the Firm
11
Shares set forth opposite their names on Schedule I hereto. In making this
Agreement, each Underwriter is contracting severally and not jointly, and
except as provided in Sections 4 and 11 hereof, the agreement of each
Underwriter is to purchase only that number of Shares specified with respect
to that Underwriter in Schedule I hereto. The Underwriters shall offer the
Shares to the public as set forth in the Prospectus.
3. Payment and Delivery. Payment for the Firm Shares shall be made by
certified or official bank check or checks payable to the order of BCB in New
York Clearing House (next day) funds, at the offices of Xxxxxx Xxxxxxxxxx
Xxxxx Inc., 0000 Xxxxxx Xxxxxx, Xxxxxxxxxxxx, Xxxxxxxxxxxx, or in immediately
available funds wired to such accounts as BCB may specify (with all costs and
expenses incurred by the Underwriters in connection with such settlement in
immediately available funds, including, but not limited to, interest or cost
of funds and expenses, to be borne by BCB), against delivery of the Firm
Shares to the Underwriters at the offices of Xxxxxx Xxxxxxxxxx Xxxxx Inc., 00
Xxxxxxxx, Xxx Xxxx, Xxx Xxxx for the respective accounts of the Underwriters.
Such payment and delivery will be made at 10:00 am., Philadelphia,
Pennsylvania time, on the third business day after the date of this
Agreement, or at such other time on the same or such other date, not later
than seven business days thereafter as shall be designated in writing by the
Underwriters. Such time and date are referred to herein as the "Closing
Date." The certificates representing the Firm Shares to be sold and
delivered will be in such denominations and registered in such names as the
Underwriters request not less than two full business days prior to the
Closing Date, and will be made available to the Underwriters for inspection,
checking and packaging not less than one full business day prior to the
Closing Date.
4. Option to Purchase Optional Shares.
(a) For the purposes of covering any over-allotments in connection
with the distribution and sale of the Firm Shares as contemplated by the
Prospectus, subject to the terms and conditions herein set forth, the several
Underwriters are hereby granted an option by BCB to purchase all or any part
of the Optional Shares (the "Over-allotment Option"). The purchase price to
be paid for the Optional Shares shall be the Offering Price less the
Underwriting Discounts and Commissions shown on the cover page of the
Prospectus. The Over-allotment Option granted hereby may be exercised once
by the Underwriters as to all or any part of the Optional Shares at any time
within 30 days after the date of the Prospectus. No Underwriter shall be
under any obligation to purchase any Optional Shares prior to an exercise of
the Over-allotment Option.
(b) The Over-allotment Option granted hereby may be exercised by
the Underwriters by giving notice to BCB by a letter sent by registered or
certified mail, postage prepaid, telex, telegraph, telegram or facsimile
(such notice to be effective when received), addressed as provided in Section
13 hereof, setting forth the number of Optional Shares to be purchased, the
date and time for delivery of and payment for the Optional Shares and stating
that the Optional Shares referred to
12
therein are to be used for the purpose of covering over-allotments in
connection with the distribution and sale of the Firm Shares. If such notice
is given at least two full business days prior to the Closing Date, the date
set forth therein for such delivery and payment shall be not earlier than the
Closing Date. If such notice is given after two full business days prior to
the Closing Date, the date set forth therein for such delivery and payment
shall be a date selected by the Underwriters not later than five full
business days after the exercise of the Over-allotment Option. The date and
time set forth in such a notice is referred to herein as an "Option Closing
Date," and a closing held pursuant to such a notice is referred to herein as
an "Option Closing." Upon exercise of the Over-allotment Option, and on the
basis of the representations, warranties, covenants and agreements herein
contained, and subject to the terms and conditions herein set forth, the
several Underwriters shall become severally, but not jointly, obligated to
purchase from BCB the number of Optional Shares specified in each notice of
exercise of the Over-allotment Option (allocated among them in accordance
with Section 4(c) hereof).
(c) The number of Optional Shares to be purchased by each
Underwriter pursuant to each exercise of the Over-allotment Option shall be
the number that bears the same ratio to the aggregate number of Optional
Shares being purchased through such Over-allotment Option exercise as the
number of Firm Shares opposite the name of such Underwriter in Schedule I
hereto bears to the total number of all Firm Shares. Notwithstanding the
foregoing, the number of Optional Shares purchased and sold pursuant to
exercise of the Over-allotment Option shall be subject to such adjustment as
the Underwriters may approve to eliminate fractional shares.
(d) Payment for the Optional Shares shall be made to BCB, by
certified or official bank check payable to the order of BCB, in New York
Clearing House (next day) funds, at the offices of Xxxxxx Xxxxxxxxxx Xxxxx
Inc., 00 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx, or such other place as shall be agreed
upon by BCB and the Underwriters, or in immediately available funds wired to
such accounts as BCB may specify (with all costs and expenses incurred by the
Underwriters in connection with such settlement in immediately available
funds, including, but not limited to, interest or cost of funds and expenses,
to be borne by BCB), against delivery of the Optional Shares to the
Underwriters at the offices of Xxxxxx Xxxxxxxxxx Xxxxx Inc., 0000 Xxxxxx
Xxxxxx, Xxxxxxxxxxxx, Xxxxxxxxxxxx, for the respective accounts of the
Underwriters. The certificates representing the Optional Shares to be issued
and delivered will be in such denominations and registered in such names as
the Underwriters request upon reasonable notice prior to such Option Closing
Date, and will be made available to the Underwriters for inspection, checking
and packaging at a reasonable time in advance of such Option Closing Date.
5. Certain Covenants and Agreements of BCB. BCB covenants and agrees
with the several Underwriters as follows:
13
(a) If Rule 430A of the Regulations is employed, BCB will timely
file the Prospectus pursuant to and in compliance with Rule 424(b) of the
Regulations and will advise the Underwriters of the time and manner of
such filing.
(b) BCB will not file or publish any amendment or supplement to
the Registration Statement, Preliminary Prospectus or Prospectus at any time
before the completion (in the opinion of the Underwriters' counsel) of the
distribution of the Shares by the Underwriters that is not (i) in compliance
with the Regulations and (ii) approved by the Underwriters (such approval not
to be unreasonably withheld or delayed).
(c) BCB will advise the Underwriters immediately, and confirm such
advice in writing, (i) when any post-effective amendment to the Registration
Statement is filed with the SEC under Rule 462(c) under the Act or otherwise,
(ii) when any Rule 462(b) Registration Statement is filed, (iii) of the
receipt of any comments from the SEC concerning the Registration Statement,
(iv) when any post-effective amendment to the Registration Statement becomes
effective, or when any supplement to the Prospectus or any amended Prospectus
has been filed, (v) of any request of the SEC for amendment or
supplementation of the Registration Statement or Prospectus or for additional
information, (vi) during the period when the Prospectus is required to be
delivered under the Act and Regulations, of the happening of any event as a
result of which the Registration Statement or the Prospectus would include an
untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein not misleading, (vii) during the
period noted in clause (vi) above, of the need to amend the Registration
Statement or supplement the Prospectus to comply with the Act, (viii) of the
issuance by the SEC 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, and (ix) of the suspension of
the qualification of any of the Shares for offering or sale in any
jurisdiction in which the Underwriters intend to make such offers or sales,
or the initiation or threatening of any proceedings for any of such purposes
known to BCB. BCB will use its best efforts to prevent the issuance of any
such stop order or of any order preventing or suspending such use, and if any
such order is issued, to obtain as soon as possible the lifting thereof.
(d) BCB has delivered to the Underwriters, without charge, as many
copies of each Preliminary Prospectus as the Underwriters have reasonably
requested. BCB will deliver to the Underwriters, without charge, from time
to time during the period when delivery of the Prospectus is required under
the Act, such number of copies of the Prospectus (as supplemented or amended)
as the Underwriters may reasonably request. BCB hereby consents to the use
of such copies of the Preliminary Prospectus and the Prospectus for purposes
permitted by the Act, the Regulations and the securities or Blue Sky laws of
the states or foreign jurisdictions in which the Shares are offered by the
several Underwriters and by all dealers to whom Shares may be sold, both in
connection with the offering and sale of the Shares and for such period of
time thereafter as the Prospectus is required by the Act to be delivered in
connection with sales by any Underwriter or dealer.
14
BCB has furnished or will furnish to the Underwriters at least three original
signed copies of the Registration Statement as originally filed and of all
amendments and supplements thereto, whether filed before or after the
Effective Date, at least three copies of all exhibits filed therewith and of
all consents and certificates of experts, and will deliver to the
Underwriters such number of conformed copies of the Registration Statement,
including financial statements and exhibits, and all amendments thereto, as
the Underwriters may reasonably request.
(e) BCB will comply with the Act, the Regulations, the Exchange
Act and the rules and regulations thereunder so as to permit the continuance
of sales of and dealings in the Shares for not less than ninety (90) dyas
from the date hereof in order that the Underwriters may complete the
distribution of the Shares as contemplated hereby.
(f) BCB will furnish such information and pay such filing fees and
other expenses as may be required, and otherwise cooperate in the
registration or qualification of the Shares, or exemption therefrom, for
offering and sale by the several Underwriters and by dealers under the
securities or Blue Sky laws of such jurisdictions in which the Underwriters
determine to offer the Shares, after consultation with BCB, and will file
such consents to service of process or other documents necessary or
appropriate in order to effect such registration or qualification; provided,
however, that no such qualification shall be required in any jurisdiction
where, solely as a result thereof, BCB would be subject to taxation or
qualification as a foreign corporation doing business in such jurisdiction
where it is not now so qualified or to take any action which would subject it
to service of process in suits, other than those arising out of the offering
or sale of the Shares, in any jurisdiction where it is not now so subject.
BCB will, from time to time, prepare and file such statements and reports as
are or may be required to continue such qualification in effect for so long a
period as is required under the laws of such jurisdictions for such offering
and sale.
(g) Subject to Section 5(b) hereof, in case of any event
(occurring at any time within the period during which, in the opinion of
counsel for the Underwriters, a prospectus is required to be delivered under
the Act or the Regulations), as a result of which any Preliminary Prospectus
or the Prospectus, as then amended or supplemented, would contain, in the
opinion of counsel for the Underwriters, an untrue statement of a material
fact, or omit to state any material fact necessary in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading, or, if it is necessary at any time to amend any Preliminary
Prospectus or the Prospectus to comply with the Act or the Regulations or any
applicable state securities or Blue Sky laws, BCB promptly will prepare and
file with the SEC, and any applicable state and foreign securities
commission, an amendment, supplement or document that will correct such
statement or omission or effect such compliance and will furnish to the
several Underwriters such number of copies of such amendments, supplements or
documents (in form and substance reasonably satisfactory to the Underwriters
and counsel for the Underwriters) as the Underwriters may reasonably request.
For purposes of this Section 5(g), BCB will provide such information to the
15
Underwriters, the Underwriters' counsel and counsel to BCB as shall be
necessary to enable such persons to consult with BCB with respect to the need
to amend or supplement the Registration Statement, Preliminary Prospectus or
Prospectus or file any document, and shall furnish to the Underwriters and
the Underwriters' counsel such further information as each may from time to
time reasonably request.
(h) BCB will make generally available to its security holders not
later than 45 days after the end of the period covered thereby, a
consolidated earnings statement of BCB (which need not be audited unless
required by the Act or the Regulations) that shall comply with Section 11(a)
of the Act and Rule 158 thereunder and cover a period of at least 12
consecutive months beginning not later than the first day of BCB's fiscal
quarter next following the Effective Date (or, if later, the effective date
of the Rule 462(b) Registration Statement).
(i) For a period of three years from the Effective Date, BCB will
deliver to the Underwriters: (i) a copy of each report or document,
including, without limitation, reports on Forms 8-K, 10-C, 10-K and 10-Q (or
such similar forms as may be designated by the SEC), registration statements
and any exhibits thereto, filed or furnished to the SEC or any securities
exchange or the NASD, on the date each such report or document is so filed or
furnished; (ii) as soon as practicable, copies of any reports or
communications (financial or other) of BCB mailed to its security holders;
and (iii) every material press release in respect of BCB or its affairs that
is released or prepared by BCB.
(j) During the course of the distribution of the Shares, BCB will
not take, directly or indirectly, any action designed to, or that could
reasonably be expected to, cause or result in stabilization or manipulation
of the price of the Common Stock.
(k) BCB has caused each person listed on Schedule II hereto to
execute an agreement (a "Lock-up Agreement") in form and substance
satisfactory to the Underwriters and the Underwriters' counsel which
provides that for a period of 180 days from the date of the final Prospectus,
as amended or supplemented, such persons will not, without the prior written
consent of the Underwriters, directly or indirectly, sell, offer or
contract to sell or grant any option to purchase or otherwise dispose of any
shares of Common Stock (or any securities convertible into or exercisable or
exchangeable for any shares of Common Stock). BCB has delivered such
agreements to the Underwriters prior to the date of this Agreement.
Appropriate stop transfer instructions will be issued by BCB to the transfer
agent for the Common Stock, and a copy of such instructions will be delivered
to the Underwriters.
(l) For a period of 180 days after the Effective Date, BCB will
not, without the prior written consent of the Underwriters, offer, sell,
contract to sell or otherwise dispose of any Common Stock or any securities
convertible into or exercisable for any Common Stock or grant options to
purchase any Common Stock, except (i) the issuance of
16
Common Stock upon the exercise of currently outstanding options and warrants
as described in the Prospectus and (ii) the grant of options to purchase
Common Stock under BCB's currently outstanding stock option plans as
described in the Prospectus and the issuance of Common Stock upon the
exercise thereof.
(m) For a period of five years from the Effective Date, BCB will
use all reasonable efforts to maintain the listing of the Common Stock
(including, without limitation, the Shares) on the Nasdaq National Market or
on a national securities exchange.
(n) BCB shall, at its sole cost and expense, supply and deliver to
the Underwriters and the Underwriters' counsel, within a reasonable period
from the Closing Date, transaction binders in such number and in such form
and content as the Underwriters reasonably request.
(o) BCB will use the net proceeds from the sale of the Shares to
be sold by it hereunder substantially in accordance with the description set
forth in the Prospectus.
6. Payment of Fees and Expenses.
(a) Whether or not the transactions contemplated by this Agreement
are consummated and regardless of the reason this Agreement is terminated,
BCB will pay or cause to be paid, and bear or cause to be borne, all costs
and expenses incident to the performance of the obligations of BCB under this
Agreement, including: (i) the fees and expenses of the accountants and
counsel for BCB incurred in the preparation of the Registration Statement and
any post-effective amendments thereto (including financial statements and
exhibits), Preliminary Prospectuses and the Prospectus and any amendments or
supplements thereto; (ii) printing and mailing expenses associated with the
Registration Statement and any post-effective amendments thereto, any
Preliminary Prospectus, the Prospectus, this Agreement, the Selected Dealers
Agreement and related documents and the Preliminary Blue Sky Memorandum (and
any supplement thereto); (iii) the costs and expenses incident to the
authentication, issuance, sale and delivery of the Shares to the
Underwriters; (iv) the fees, expenses and all other costs of qualifying the
Shares for sale under the securities or Blue Sky laws of those states or
foreign jurisdictions in which the Shares are to be offered or sold,
including the reasonable fees and expenses of Underwriters' counsel, except
such fees shall not exceed $5,000; (v) the fees, expenses and other costs of,
or incident to, securing any review or approvals by or from the NASD; (vi)
the filing fees of the SEC; (vii) the cost of furnishing to the Underwriters
copies of the Registration Statement, Preliminary Prospectuses and
Prospectuses as herein provided; (viii) BCB's travel expenses in connection
with meetings with the brokerage community and institutional investors; (ix)
the costs and expenses associated with settlement in same day funds
(including, but not limited to, interest or cost of funds expenses), if
desired by BCB; (x) any fees or costs payable to the Nasdaq National Market
as a result of the offering; (xi) the cost of printing certificates for the
Shares; (xii) the costs and charges of any transfer
17
agent; (xiii) all taxes, if any, on the issuance, delivery and transfer of
the Shares sold by BCB; and (xiv) all other costs and expenses reasonably
incident to the performance of BCB's obligations hereunder that are not
otherwise specifically provided for in this Section 6(a).
(b) BCB shall pay as due any state or foreign registration,
qualification and filing fees and any accountable out-of-pocket disbursements
in connection with such registration, qualification or filing in the states
and foreign jurisdictions in which the Underwriters determine to offer or
sell the Shares.
(c) On the Closing Date, BCB shall pay the Underwriters a
non-accountable expense allowance in the amount of $150,000.
(d) If (i) the Underwriters are willing to proceed with the
offering, and the transactions contemplated by this Agreement are not
consummated because BCB elects not to proceed with the offering for any
reason or (ii) the Underwriters terminate this Agreement pursuant to
Section 10(b) hereof, then BCB will reimburse the Underwriters for their
reasonable out-of-pocket expenses, including, without limitation, fees and
disbursements of counsel for the Underwriters, incurred in connection with
investigating, marketing and proposing to market the Shares or in
contemplation of performing their obligations hereunder, in an amount not to
exceed $50,000.
7. Conditions of Underwriters' Obligations. The obligation of each
Underwriter to purchase and pay for the Firm Shares that it has agreed to
purchase hereunder on the Closing Date, and to purchase and pay for any
Optional Shares as to which it exercises its right to purchase under Section
4 on an Option Closing Date, is subject at the date hereof, the Closing Date
and any Option Closing Date to the continuing accuracy and fulfillment of the
representations and warranties of BCB, to the performance by BCB of its
covenants and obligations hereunder, and to the following additional
conditions:
(a) If required by the Regulations, the Prospectus shall have been
filed with the SEC pursuant to Rule 424(b) of the Regulations within the
applicable time period prescribed for such filing by the Regulations. On or
prior to the Closing Date or any Option Closing Date, as the case may be, no
stop order or other order preventing or suspending the effectiveness of the
Registration Statement or the sale of any of the Shares shall have been
issued under the Act or any state or foreign securities law, and no
proceedings for that purpose shall have been initiated or shall be pending
or, to the Underwriters' knowledge or the knowledge of BCB, shall be
contemplated by the SEC or by any authority in any jurisdiction designated by
the Underwriters pursuant to Section 5(f) hereof. Any request on the part
of the SEC or any state or foreign securities authority for additional
information shall have been complied with to the reasonable satisfaction of
counsel for the Underwriters.
18
(b) All corporate proceedings and other matters incident to the
authorization, form and validity of this Agreement, the Shares and the form
of the Registration Statement and the Prospectus, and all other legal matters
relating to this Agreement and the transactions contemplated hereby shall be
satisfactory in all material respects to counsel for the Underwriters. BCB
shall have furnished to such counsel all documents and information that they
may have reasonably requested to enable them to pass upon such matters. The
Underwriters shall have received from their counsel, Xxxxx,
Xxxx, Xxxxxxx & Xxxxxxx L.L.P., an opinion, dated as of the Closing Date and
any Option Closing Date, as the case may be, and addressed to the several
Underwriters, which opinion shall be satisfactory in all respects to the
Underwriters.
(c) The Underwriters shall have received a copy of an executed
Lock-up Agreement from each person listed on Schedule II hereto.
(d) The Underwriters shall have received at or prior to the
Closing Date from the Underwriters' counsel a memorandum or summary, in form
and substance satisfactory to the Underwriters, with respect to the
qualification for offering and sale by the Underwriters of the Shares under
the securities or Blue Sky laws of such jurisdictions designated by the
Underwriters pursuant to Section 5(f) hereof.
(e) On the Closing Date and any Option Closing Date, there shall
have been delivered to the Underwriters signed opinions of Xxxxxxx & Xxx,
counsel for BCB, dated as of each such date and addressed to the
Underwriters to the effect set forth in Exhibit A hereto or to such effect as
is otherwise reasonably satisfactory to the Underwriters.
(f) At the Closing Date and any Option Closing Date: (i) the
Registration Statement and any post-effective amendment thereto and the
Prospectus and any amendments or supplements thereto shall contain all
statements that are required to be stated therein in accordance with the Act
and the Regulations and in all material respects shall conform to the
requirements of the Act and the Regulations, and neither the Registration
Statement nor any post-effective amendment thereto nor the Prospectus and any
amendments or supplements thereto shall contain any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading; (ii)
since the respective dates as of which information is given in the
Registration Statement and any post-effective amendment thereto and the
Prospectus and any amendments or supplements thereto, except as otherwise
stated therein, there shall have been no material adverse change in the
Business Conditions of BCB and the Subsidiaries taken as a whole from that
set forth therein, whether or not arising in the ordinary course of business;
(iii) since the respective dates as of which information is given in the
Registration Statement and the Prospectus or any amendment or supplement
thereto, there shall have been no event or transaction, contract or agreement
entered into by BCB or either of its Subsidiaries other than in the ordinary
course of business and as set forth in the
19
Registration Statement or Prospectus, that has not been, but would be
required to be, set forth in the Registration Statement or Prospectus; (iv)
since the respective dates as of which information is given in the
Registration Statement and any post-effective amendment thereto and the
Prospectus and any amendments or supplements thereto, there shall have been
no material adverse change, loss, reduction, termination or non-renewal of
any contract to which BCB or either of its Subsidiaries is a party, that has
not been, but would be required to be set forth in the Registration Statement
or Prospectus; and (v) no action, suit or proceeding at law or in equity
shall be pending or threatened against BCB or either of its Subsidiaries that
would be required to be set forth in the Prospectus, other than as set forth
therein, and no proceedings shall be pending or threatened against or
directly affecting BCB or either of its Subsidiaries before or by any
federal, state or other commission, board or administrative agency wherein an
unfavorable decision, ruling or finding would materially adversely affect the
Business Conditions of BCB and the Subsidiaries taken as a whole.
(g) The Underwriters shall have received at the Closing Date and
any Option Closing Date certificates executed without personal liability by
the Chief Executive Officer and the Chief Financial Officer of BCB dated as
of the date of the Closing Date or Option Closing Date, as the case may be,
and addressed to the several Underwriters to the effect that (i) the
representations and warranties of BCB in this Agreement are true and correct
in all material respects, as if made at and as of the Closing Date or the
Option Closing Date, as the case may be, and that BCB has complied with all
the agreements, fulfilled all the covenants and satisfied all the conditions
on its part to be performed, fulfilled or satisfied in all material respects
at or prior to the Closing Date or the Option Closing Date, as the case may
be, and (ii) the signers of the certificate have carefully examined the
Registration Statement and the Prospectus and any amendments or supplements
thereto, and the conditions set forth in Section 7(g) hereof have been
satisfied.
(h) At the time this Agreement is executed and at the Closing Date
and any Option Closing Date, the Underwriters shall have received a letter,
dated the date of delivery thereof, addressed to the several Underwriters, in
form and substance satisfactory to the Underwriters in all respects
(including, without limitation, the non-material nature of the changes or
decreases, if any, referred to in clause (iii) below) from Xxxxx & Company,
Inc.
(i) confirming they are independent certified public
accountants within the meaning of the Act and the Regulations, and stating
that the section of the Registration Statement under the caption "Experts" is
correct insofar as it relates to them;
(ii) stating that, in their opinion, the consolidated
financial statements, schedules and notes of BCB audited by them and included
in the Registration Statement comply as to form in all material respects with
the applicable accounting requirements of the Act and the Regulations;
20
(iii) stating that, on the basis of specified procedures,
which included the procedures as specified by the American Institute of
Certified Public Accountants for a review of interim financial information,
as described in SAS No. 71, Interim Financial Information (with respect to
the latest unaudited consolidated financial statements of BCB included in the
Registration Statement), a reading of the latest available unaudited interim
consolidated financial statements of BCB (with an indication of the date of
the latest available unaudited interim financial statements), a reading of
the minutes of the meetings of the stockholders and the Boards of Directors
of BCB and the Subsidiaries, and audit and compensation committees of such
Boards, if any, and inquiries to certain officers and other employees of BCB
and the Subsidiaries responsible for operational, financial and accounting
matters and other specified procedures and inquiries, nothing has come to
their attention that would cause them to believe that (A) the unaudited
consolidated financial statements of BCB and the Subsidiaries included in the
Registration Statement, (I) do not comply in form and all material respects
with the applicable accounting requirements of the Act and the Regulations,
or (II) any material modifications should be made to such unaudited financial
statements for them to be in conformity with generally accepted accounting
principles; (B) at a specified date not more than five business days prior to
the date of such letter, there was any change in the capital stock or debt of
BCB or any decrease in net current assets, total assets or stockholders'
equity of BCB as compared with the amounts shown in the March 31, 1997
unaudited balance sheet of BCB included in the Registration Statement, or
that for the periods from April 1, 1997 to the date of the latest available
unaudited financial statements of BCB and to a specified date not more than
five days prior to the date of the letter, there were any decreases, as
compared to the corresponding periods in the prior year, in operating income
or total or per share amounts of net income, except in all instances for
changes, decreases or increases that the Registration Statement discloses
have occurred or may occur and except for such other changes, decreases or
increases which the Underwriters shall in their sole discretion accept; or
(C) the unaudited pro forma financial statements included in the Registration
Statement do not comply as to form in all material respects with the
applicable accounting requirements of Rule 11-02 of Regulation S-X under the
Act and that the pro forma adjustments have not been properly applied to the
historical amounts in the compilation of those statements; and
(iv) stating that they have compared specific dollar amounts
(or percentages derived from such dollar amounts), numbers of shares and
other numerical data and financial information set forth in the Registration
Statement that have been specified by the Underwriters prior to the date
of this Agreement (in each case to the extent that such dollar amounts,
percentages and other information is derived from the general accounting
records subject to the internal controls of BCB's or either of its
Subsidiaries' accounting systems, or has been derived directly from such
accounting records by analysis or comparison or has been derived from other
records and analyses maintained or prepared by BCB or either of its
Subsidiaries) with the results obtained from the application of readings,
inquiries and other appropriate procedures set forth in the letter, and found
them to be in agreement.
21
All financial statements and schedules included in material
incorporated by reference into the Prospectus shall be deemed included in the
Registration Statement for purposes of this subsection.
(i) There shall have been duly tendered to the Underwriters for
the respective accounts of the Underwriters certificates representing all of
the Shares to be purchased by the Underwriters on the Closing Date or Option
Closing Date, as the case may be.
(j) At the Closing Date and any Option Closing Date, the
Underwriters shall have been furnished such additional documents,
information and certificates as they shall have reasonably requested.
All such opinions, certificates, letters and documents shall be in
compliance with the provisions hereof only if they are reasonably
satisfactory in form and substance to the Underwriters and the
Underwriters' counsel. BCB shall furnish the Underwriters with such
conformed copies of such opinions, certificates, letters and other documents
as they shall reasonably request. If any condition to the Underwriters'
obligations hereunder to be fulfilled prior to or at the Closing Date or any
Option Closing Date, as the case may be, is not fulfilled, the
Underwriters may terminate this
Agreement with respect to the Closing Date or such Option Closing Date, as
applicable, or, if they so elect, waive any such conditions which have not
been fulfilled or extend the time for their fulfillment. Any such
termination shall be without liability of the Underwriters to BCB.
8. Indemnification and Contribution.
(a) BCB shall indemnify and hold harmless each Underwriter, and
each person, if any, who controls each Underwriter within the meaning of the
Act, against any and all loss, liability, claim, damage and expense
whatsoever, including, but not limited to, any and all reasonable expenses
incurred in investigating, preparing or defending against any litigation,
commenced or threatened, or any claim whatsoever or in connection with any
investigation or inquiry of, or action or proceeding that may be brought
against, the respective indemnified parties, arising out of or based upon any
breach of BCB's representations and warranties made in this Agreement or any
untrue statements or alleged untrue statements of material fact contained in
any Preliminary Prospectus, the Registration
22
Statement or the Prospectus, any application or other document (in this
Section 8 collectively called "application") filed in any jurisdiction in
order to qualify all or any part of the Shares under the securities laws
thereof or filed with the SEC or the NASD, or the omission or alleged
omission from any of the foregoing of a material fact required to be stated
therein or necessary to make the statements therein not misleading; provided,
however, that the foregoing indemnity shall not apply in respect of any
statement or omission made in reliance upon and in conformity with written
information furnished to BCB by any Underwriter expressly for use in any
Preliminary Prospectus, the Registration Statement or Prospectus, or any
amendment or supplement thereto, or in any application or in any
communication to the SEC, as the case may be; and further provided, however,
that the indemnification contained in this Section 8(a) with respect to any
Preliminary Prospectus shall not inure to the benefit of any Underwriter (or
to the benefit of any person controlling such Underwriter) on account of any
such loss, claim, liability or expense arising from the sale of the Shares by
such Underwriter to any person if a copy of the Prospectus shall not have
been delivered or sent to such person within the time required by the Act and
the Regulations, and the untrue statement or alleged untrue statement or
omission or alleged omission of a material fact contained in such Preliminary
Prospectus was corrected in the Prospectus, provided that BCB has delivered
the Prospectus to the several Underwriters in requisite quantity on a timely
basis to permit such delivery or sending. The obligations of BCB under this
Section 8(a) will be in addition to any liability BCB may otherwise have.
(b) Each Underwriter, severally and not jointly, shall indemnify
and hold harmless BCB, each of the directors of BCB, each of the officers of
BCB who shall have signed the Registration Statement, and each other person,
if any, who controls BCB within the meaning of the Act to the same extent as
the foregoing indemnities from BCB to the several Underwriters, but only with
respect to any and all loss, liability, claim, damage or expense resulting
from statements or omissions, or alleged statements or omissions, if any,
made in any Preliminary Prospectus, Registration Statement or Prospectus or
any amendment or supplement thereof or any application in reliance upon, and
in conformity with written information furnished to BCB by any Underwriter
expressly for use in any Preliminary Prospectus, the Registration Statement
or Prospectus or any amendment or supplement thereof or any application, as
the case may be. The obligations of each Underwriter under this Section 8(b)
will be in addition to any liability which such Underwriter may otherwise
have.
(c) If any action, inquiry, investigation or proceeding is brought
against any person in respect of which indemnification may be sought pursuant
to Section 8(a) or (b) hereof, such person (hereinafter called the
"indemnified party") shall, promptly after notification of, or receipt of
service of process for, such action, inquiry, investigation or proceeding,
notify in writing the party or parties against whom indemnification is to be
sought (hereinafter called the "indemnifying party") of the institution of
such action, inquiry, investigation or proceeding. The indemnifying party,
upon the request of the indemnified party, shall assume the defense of such
action, inquiry, investigation or proceeding, including,
23
without limitation, the employment of counsel (reasonably satisfactory to
such indemnified party) and payment of expenses. No indemnification provided
for in this Section 8 shall be available to any indemnified party who shall
fail to give such notice if the indemnifying party does not have knowledge of
such action, inquiry, investigation or proceeding to the extent that such
indemnifying party has been materially prejudiced by the failure to give such
notice, but the omission to so notify the indemnifying party shall not
relieve the indemnifying party otherwise than under this Section 8. Such
indemnified party shall have the right to employ its or their own counsel in
any such case, but the fees and expenses of such counsel shall be at the
expense of such indemnified party unless the employment of such counsel shall
have been authorized in writing by the indemnifying party in connection with
the defense of such action or if the indemnifying party shall not have
employed counsel reasonably satisfactory to the indemnified party or if such
indemnified party or parties shall have been advised by counsel that there
may be a conflict between the positions of the indemnifying party or parties
and of the indemnified party or parties or that there may be legal defenses
available to such indemnified party or parties different from or in addition
to those available to the indemnifying party or parties, in any of which
events the indemnified party or parties shall be entitled to select counsel
to conduct the defense to the extent determined by such counsel to be
necessary to protect the interests of the indemnified party or parties, and
the reasonable fees and expenses of such counsel shall be borne by the
indemnifying party. The indemnifying party shall be responsible for the fees
and disbursements of only one such counsel so engaged by the indemnified
party or parties. Expenses covered by the indemnification in this Section 8
shall be paid by the indemnifying party as they are incurred by the
indemnified party. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending or
threatened action in respect of which any indemnified party is or could have
been a party and indemnity could have been sought hereunder by such
indemnified party unless such settlement includes an unconditional release of
such indemnified party from all liability on any claims that are the subject
matter of such action. Anything in this Section 8 to the contrary
notwithstanding, an indemnifying party shall not be liable for any settlement
of a claim effected without its written consent, which consent shall not be
unreasonably withheld.
(d) If the indemnification provided for in this Section 8 is
unavailable or insufficient to hold harmless an indemnified party under
Section 8(a) or (b) hereof in respect of any losses, liabilities, claims,
damages or expenses (or actions, inquiries, investigations or proceedings in
respect thereof) referred to therein, except by reason of the failure to give
notice as required in Section 8(c) hereof (provided that the indemnifying
party does not have knowledge of the action, inquiry, investigation or
proceeding and to the extent such party has been materially prejudiced by the
failure to give such notice), then each indemnifying
24
party shall contribute to the amount paid or payable by such indemnified
party as a result of such losses, liabilities, claims, damages or expenses
(or actions, inquiries, investigations or proceedings in respect thereof) in
such proportion as is appropriate to reflect the relative benefits received
by BCB on the one hand and the Underwriters on the other from the offering of
the Shares. If, however, the allocation provided by the immediately
preceding sentence is not permitted by applicable law, then each indemnifying
party shall contribute to such amount paid or payable by such indemnified
party in such proportion as is appropriate to reflect not only such relative
benefits but also the relative fault of BCB on the one hand and the
Underwriters on the other in connection with the statements or omissions
which resulted in such losses, liabilities, claims or expenses (or actions,
inquiries, investigations or proceedings in respect thereof), as well as any
other relevant equitable considerations. The relative benefits received by
BCB on the one hand and the Underwriters on the other shall be deemed to be
in the same proportion as the total net proceeds from the offering (before
deducting expenses) received by BCB bears to the total underwriting discount
and commissions received by the Underwriters, 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, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to
state a material fact relates to information supplied by BCB on the one hand
or the Underwriters on the other hand and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
BCB and the Underwriters agree that it would not be just and equitable
if contributions pursuant to this Section 8(d) were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation that does not take account of
the equitable considerations referred to above in this Section 8(d). The
amount paid or payable by an indemnified party as a result of the losses,
liabilities, claims, damages or expenses (or actions, inquiries,
investigations or proceedings in respect thereof) referred to above in this
Section 8(d) shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 8(d), (i) no Underwriter shall be required to
contribute any amount in excess of the underwriting discounts and commissions
applicable to the Shares purchased by such Underwriter, and (ii) no person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f)
of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters' obligations
in this Section 8(d) to contribute are several in proportion to their
individual underwriting obligations and not joint.
9. Representations and Agreements to Survive Delivery. Except as the
context otherwise requires, all representations, warranties and agreements
contained in this Agreement shall be deemed to be representations, warranties
and agreements at the Closing Date and any Option Closing Date. All such
representations, warranties and agreements of the Underwriters and BCB,
including, without limitation, the indemnity and contribution agreements
contained in Section 8 hereof and the agreements contained in Sections 6, 9,
10 and 13 hereof, shall remain operative and in full force and effect
regardless of any investigation made by or on behalf of any Underwriter or
any controlling person, and shall
25
survive delivery of the Shares and termination of this Agreement, whether
before or after the Closing Date or any Option Closing Date.
10. Effective Date of This Agreement and Termination Hereof.
(a) This Agreement shall become effective at 10:00 a.m.,
Philadelphia, Pennsylvania time, on the first business day following the
Effective Date or at the time of the public offering by the Underwriters of
the Shares, whichever is earlier, except that the provisions of Sections 6,
8, 9, 10 and 13 hereof shall be effective upon execution hereof. The time of
the public offering, for the purpose of this Section 10, shall mean the time
when any of the Shares are first released by the Underwriters for offering by
dealers. The Underwriters and BCB may prevent the provisions of this
Agreement (other than those contained in Sections 6, 8, 9, 10 and 13) hereof
from becoming effective without liability of any party to any other party,
except as noted below, by giving the notice indicated in Section 10(c) hereof
before the time the other provisions of this Agreement become effective.
(b) The Underwriters shall have the right to terminate this
Agreement at any time prior to the Closing Date or any Option Closing Date as
provided in Sections 7 and 11 hereof or if any of the following have
occurred: (i) since the respective dates as of which information is given in
the Registration Statement and the Prospectus, any material adverse change or
any development involving a prospective material adverse change in or
affecting the Business Conditions of BCB or the Subsidiaries, whether or not
arising in the ordinary course of business, that would, in the
Underwriters' opinion, make the offering or delivery of the Shares
impracticable; (ii) any outbreak of hostilities or other national or
international calamity or crisis or change in economic, political or
financial market conditions if the effect on the financial markets of the
United States of such outbreak, calamity, crisis or change would, in the
Underwriters' opinion, make the offering or delivery of the Shares
impracticable; (iii) any suspension or limitation of trading generally in
securities on the New York Stock Exchange, the American Stock Exchange, the
Nasdaq National Market or the over-the-counter market or any setting of
minimum prices for trading or the promulgation of any federal or state
statute, regulation, rule or order of any court or other governmental
authority that in the Underwriters' opinion materially and adversely
affects trading on such exchange or the over-the-counter market; (iv) the
enactment, publication, decree or other promulgation of any federal or state
statute, regulation, rule or order of any court or other governmental
authority which in the Underwriters' opinion materially and adversely
affects or will materially or adversely affect the business or operations of
BCB or the Subsidiaries; (v) declaration of a banking moratorium by either
United States, New York or Pennsylvania authorities; (vi) the taking of any
action by any federal, state or local government or agency in respect of its
monetary or fiscal affairs that in the Underwriters' opinion has a
material adverse effect on the securities markets in the United States; or
(vii) trading in any securities of BCB shall have been suspended or halted by
the NASD or the SEC.
26
(c) If the Underwriters elect to prevent this Agreement from
becoming effective or to terminate this Agreement as provided in this Section
10, the Underwriters shall notify BCB hereof promptly by telephone, telex,
telegraph, telegram or facsimile, confirmed by letter.
11. Default by an Underwriter.
(a) If any Underwriter or Underwriters shall default in its or
their obligation to purchase Firm Shares or Optional Shares hereunder, and if
the Firm Shares or Optional Shares with respect to which such default relates
do not exceed in the aggregate 10% of the number of Firm Shares or Optional
Shares, as the case may be, that all Underwriters have agreed to purchase on
the relevant Closing Date or Option Closing Date, then the Underwriters
may make arrangements satisfactory to BCB for the purchase of such Firm
Shares by other persons, including any of the Underwriters, but if no such
arrangements are made by the relevant Closing Date or Option Closing Date,
such Firm Shares or Optional Shares to which the default relates shall be
purchased severally by the non-defaulting Underwriters in proportion to their
respective commitments hereunder.
(b) If such default relates to more than 10% of the Firm Shares or
Optional Shares, as the case may be, the Underwriters may in their
discretion arrange for another party or parties (including a non-defaulting
Underwriter) to purchase such Firm Shares or Optional Shares to which such
default relates, on the terms contained herein. In the event that the
Underwriters do not arrange for the purchase of the Firm Shares or
Optional Shares to which a default relates as provided in this Section 11,
this Agreement may be terminated by the Underwriters or by BCB without
liability on the part of the non-defaulting several Underwriters (except as
provided in Section 8 hereof) or BCB (except as provided in Sections 6 and 8
hereof); provided that if such default occurs with respect to Optional Shares
after the Closing Date, this Agreement will not terminate as to the Firm
Shares or any Optional Shares purchased prior to such termination. Nothing
herein shall relieve a defaulting Underwriter of its liability, if any, to
the other several Underwriters and to BCB for damages occasioned by its
default hereunder.
(c) If the Firm Shares or Optional Shares to which the default
relates are to be purchased by the non-defaulting Underwriters, or are to be
purchased by another party or parties, the Underwriters or BCB shall have
the right to postpone the Closing Date or any Option Closing Date, as the
case may be, for a reasonable period but not in any event exceeding seven
days, in order to effect whatever changes may thereby be made necessary in
the Registration Statement or the Prospectus or in any other documents and
arrangements, and BCB agrees to file promptly any amendment to the
Registration Statement or supplement to the Prospectus that in the opinion of
counsel for the Underwriters may thereby be made necessary. The terms
"Underwriters" and "Underwriter" as used in this Agreement shall include any
party substituted under this Section 11 with like effect as if it had
originally been a party to this Agreement with respect to such Firm Shares
and/or Optional Shares.
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12. Information Furnished by Underwriters. The statement set forth on
the last paragraph at the bottom of the cover page of the Prospectus
regarding the terms of the Offering by the Underwriters, the legend on the
inside cover page regarding stabilization, the identity of the Underwriters
set forth in the first paragraph under the heading "Underwriting" and the
concession and reallowance figures appearing in the second paragraph under
the caption "Underwriting," constitute the only written information furnished
by reference or on behalf of any Underwriter referred to in Sections 1(b) and
8 hereof.
13. Notice. All communications hereunder, except as herein otherwise
specifically provided, shall be in writing and, if sent to any Underwriter,
shall be mailed, delivered, telexed, telegrammed, telegraphed or telecopied
and confirmed to such Underwriter, c/o Janney Xxxxxxxxxx Xxxxx Inc., 0000
Xxxxxx Xxxxxx, Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000, Attention: Xx. Xxxxxx X.
Xxxxx, with a copy to Xxxxx, Xxxx, Xxxxxxx & Xxxxxxx L.L.P., 000 00xx Xxxxxx,
Xxxxxxxxxx, X.X. 00000, Attention: Xxxxxx X. Xxxxxxx, Esquire and Xxxxxxx X.
Xxxx, Esquire; and if sent to BCB, shall be mailed, delivered, telexed,
telegrammed, telegraphed or telecopied and confirmed to BCB Financial
Services Corporation, 000 Xxxxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxxxx 00000;
Attention: Xxxxxx X. Xxxxxx, with a copy to Xxxxxxx & Xxx, One Glenhardie
Corporate Center, Suite 202, 0000 Xxxxxxxx Xxxx, Xxxxx, Xxxxxxxxxxxx 00000,
Attention: Xxxxxxx X. Xxxxxxx, Esquire.
14. Parties. This Agreement shall inure solely to the benefit of, and
shall be binding upon, the several Underwriters, BCB and the controlling
persons, directors and officers thereof, and their respective successors,
assigns, heirs and legal representatives, and no other person shall have or
be construed to have any legal or equitable right, remedy or claim under or
in respect of or by virtue of this Agreement or any provision herein
contained. The terms "successors" and "assigns" shall not include any
purchaser of the Shares merely because of such purchase.
15. Definition of Business Day. For purposes of this Agreement,
"business day" means any day on which the Nasdaq National Market is opened
for trading.
16. Counterparts. This Agreement may be executed in one or more
counterparts and all such counterparts will constitute one and the same
instrument.
17. Construction. This Agreement shall be governed by and construed in
accordance with the laws of the Commonwealth of Pennsylvania applicable to
agreements made and performed entirely within such Commonwealth.
28
If the foregoing correctly sets forth your understanding of our
agreement, please sign and return to BCB the enclosed duplicate hereof,
whereupon it will become a binding agreement in accordance with its terms.
Very truly yours,
BCB FINANCIAL SERVICES CORPORATION
By:
-----------------------------------
Xxxxxx X. Xxxxxx, Chairman and President
The foregoing Agreement is hereby confirmed and accepted as of the date first
above written.
XXXXXX XXXXXXXXXX XXXXX INC.
By:
--------------------------------------------
Xxxxxx X. Xxxxx
First Vice President
WHEAT FIRST BUTCHER SINGER
By:
--------------------------------------------
Xxxxx X. Xxxxxxxx
Managing Director
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SCHEDULE I
Schedule of Underwriters
Number of Firm Shares
Underwriter to be Purchased
----------------------------------------- ----------------------
Xxxxxx Xxxxxxxxxx Xxxxx Inc..................................
Wheat First Butcher Singer...................................
-----------------
Total........................................................ 1,200,000
-----------------
-----------------
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SCHEDULE II
Persons Who Are to Deliver Lock-Up Agreements
Lock-Up Agreements are to be delivered by the following persons and
entities immediately prior to the time the SEC declares the Registration
Statement effective:
Xxxxxx X. Xxxxxxx
Xxxxxx X. Xxxxxxx
Xxxxx X. Xxxxx, Xx.
Xxxx X. Xxxxxx
Xxxxxxx X. Xxxxx
Xxxxxx X. Xxxx
Xxxxxx X. Xxxxxx
Xxxxxx Xxxx
Xxxxx X. Xxxxx
Xxxxxxx X. Xxxxxx
Xxxxxx X. XxXxxx, Xx.
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