EXHIBIT 1.1
[ ] SHARES
PREMIER BANCORP, INC.
SERIES A PREFERRED STOCK
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UNDERWRITING AGREEMENT
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[ ], 2002
BOENNING & SCATTERGOOD, INC.
4 Tower Bridge
000 Xxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxx Xxxxxxxxxxxx, XX 00000-0000
Ladies and Gentlemen:
Premier Bancorp, Inc., a Pennsylvania corporation (the "Company"),
proposes to sell to Boenning & Scattergood, Inc. (the "Underwriter") [ ]
shares (the "Firm Shares") of Series A __% Non-Cumulative Perpetual Preferred
Stock, no par value, of the Company (the "Preferred Stock"). 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
Underwriter has an option to purchase for its own account up to [ ]
additional shares (the "Optional Shares") of Preferred Stock from the Company.
The Firm Shares and the Optional Shares are referred to herein collectively as
the "Offered 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 Company, intending to be legally bound, hereby confirms its agreement
with the Underwriter as follows:
1. Representations and Warranties of the Company. The Company
represents and warrants to, and agrees with, the Underwriter that:
(a) The Company 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 S-2 (File No. 333-87420), and one or more
amendments thereto, for the purpose of registering the Offered Shares (or a
portion of the Offered Shares if a "Rule 462(b) Registration Statement," as
defined below, has been or is to be filed) under the Act. The Company similarly
may have prepared or may prepare an additional registration statement on Form
S-2 with respect to a portion of the Offered Shares
pursuant to Rule 462(b) of the Regulations and, if so prepared or if to be so
prepared, such additional registration statement has been or will be filed
pursuant to Rule 462(b) of the Regulations. The term "Rule 462(b) Registration
Statement" means such additional registration statement, if any, filed pursuant
to Rule 462(b) of the Regulations, including, without limitation, all exhibits
thereto, the contents of the earlier registration statement incorporated therein
by reference, and any price-related information included therein, but omitted
from the earlier registration statement in reliance on Rule 430A of the
Regulations. Copies of all such registration statements (or the form thereof in
the case of a Rule 462(b) Registration Statement that has not yet been filed),
and any amendments thereto, and all forms of the related prospectus contained
therein, will be delivered to the Underwriter. 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 6(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 the Company files a Rule 462(b) Registration Statement,
then any reference herein to the term "Registration Statement" shall be deemed
to include such Rule 462(b) 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 issue any such stop
order, nor is the SEC contemplating instituting proceedings with respect to such
an order. No stop order suspending the sale of the Offered Shares in any
jurisdiction designated by the Underwriter as provided for in Section 5(f)
hereof has been issued, no proceedings for that purpose have been instituted or
threatened, and no such governmental body is contemplating issuing any such stop
order. The Company has complied with all requests of the SEC, or requests of
which the Company has been advised of any state or foreign securities commission
in a state or foreign jurisdiction designated by the Underwriter 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 and the Preliminary Prospectus dated [ ], 2002 did
not as of its date contain any untrue statement of material fact or omit to
state any material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading, except the foregoing shall not apply to statements in any
Preliminary Prospectus made in reliance upon and in conformity with information
supplied to the Company in writing by or on behalf of any Underwriter expressly
for use therein. The Registration Statement, on the date on which it was
declared effective by the
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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 on any Option Closing Date (as defined in
Section 4(b) hereof), conformed and will conform 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 the Registration Statement or the Prospectus made in reliance upon
and in conformity with information furnished to the Company in writing by or on
behalf of any Underwriter expressly for use therein.
(c) There is no document or contract of a character required to be
described in the Prospectus or to be filed as an exhibit to the Registration
Statement which is not so described or filed as required. The documents
incorporated by reference into the Prospectus pursuant to Item 12 of Form S-2
under the Act, at the time they were filed with the SEC, complied in all
material respects with the requirements of the Act or the Securities Exchange
Act of 1934, as amended ("Exchange Act"), as the case may be, and the Rules and
Regulations of the Act and the Exchange Act, at the time such documents were
filed with the SEC. In addition, any documents filed with the SEC and
incorporated by reference subsequent to the Effective Date of the Registration
Statement shall, when so filed, conform with the requirements of the Act and the
Exchange Act, as applicable, and the rules and regulations thereof. No documents
incorporated by reference into the Prospectus, when filed (or if amendments to
such documents, when such amendment was filed), contained any untrue statement
of material fact or omitted to state any material fact required to be stated
therein, or necessary to make the statements therein, in light of the
circumstances under which they are made, not misleading.
(d) The Company is a corporation duly incorporated, validly
existing and in good standing under the laws of the Commonwealth of
Pennsylvania, with all necessary power and authority, corporate and otherwise,
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, except where the
failure to obtain such licenses, permits, certifications, registrations,
approvals, consents and franchises would not have a Material Adverse Effect, and
to execute, deliver and perform this Agreement. The Company is registered as a
bank holding company under the Bank Holding Company Act of 1956 (the "BHCA") and
is and, at the Closing Date and Option Closing Date will be in good standing
with the Board of Governors of the Federal Reserve System (the "Federal Reserve
Board"). The Company has made a valid election with the Federal Reserve Board to
be a "financial holding company" as defined pursuant to applicable regulations
of the Federal Reserve Board, such election remains in effect, and no event or
circumstance has occurred or exists which would result in the ineligibility of
the Company to be a financial holding company or to engage in new activities
pursuant to the authorities granted to financial holding companies and not
available to bank holding companies. Each of Premier Bank, a Pennsylvania bank,
PBI Capital Trust, a Delaware statutory business trust, Lenders Abstract, LLC, a
Pennsylvania limited liability company, and Premier Bank Insurance Services,
LLC, a Pennsylvania limited liability company, is a direct or indirect
wholly-owned subsidiary of the Company (each a "Subsidiary" and, collectively,
the "Subsidiaries"). The Company does not have any subsidiaries other than the
Subsidiaries. Each Subsidiary is duly organized, validly existing
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and in good standing under the laws of the jurisdiction in which it was
organized, with all necessary power and authority, corporate and otherwise, and
all required licenses, permits, certifications, registrations, approvals,
consent and franchises to own or lease and operate its properties and conduct
its current business. The Company and each Subsidiary is duly qualified to do
business as foreign entities, and are in good standing, in all jurisdictions in
which such qualification is required, except where any such failure to be so
qualified or in good standing could not reasonably be expected to have a
material adverse effect on the Business Condition (as defined in Section 1(p)
below) of the Company and the Subsidiaries taken as a whole (a "Material Adverse
Effect").
(e) The outstanding shares of capital stock and other equity
interests of each of the Subsidiaries have been duly authorized and validly
issued, are fully paid and non-assessable and are owned by the Company 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, equity
interests or ownership interests in the Subsidiaries, or securities convertible
into or exchangeable for capital stock or equity interests of, or other
ownership interests in, the Subsidiaries, are outstanding. Except as disclosed
in this Prospectus, and except for loans made or investment securities acquired
in the ordinary course of business, neither the Company nor any of the
Subsidiaries owns any stock or other interest whatsoever, whether equity or
debt, in any corporation, partnership or other entity other than the Company's
ownership of the Subsidiaries.
(f) This Agreement has been duly authorized, executed and
delivered by the Company and constitutes the legal, valid and binding obligation
of the Company, enforceable against the Company in accordance with its terms,
except as enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium, fraudulent conveyance or other similar laws relating
to or affecting creditors' rights generally or by general principles of equity
and rules of law governing specific performance, estoppel, waiver, injunctive
relief and other equitable remedies (regardless of whether enforcement is sought
in a proceeding at law or in equity) and except that, as to this Agreement, the
rights to indemnity and contribution set forth herein may be limited by federal
and state securities laws or principles of public policy.
(g) The execution, delivery and performance of this Agreement by
the Company and the consummation of the transactions contemplated herein, do not
and will not, with or without the giving of notice, the lapse of time, or both,
(i) conflict with any term or provision of the Company's and each of the
Subsidiaries' Articles or Certificate of Incorporation, Certificate of
Organization 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 the Company or the Subsidiaries, or require any payment by the
Company or the Subsidiaries or impose any liability on the Company or the
Subsidiaries pursuant to, any contract, indenture, mortgage, deed of trust,
commitment or other agreement or instrument to which the Company or the
Subsidiaries is a party or by which any of their properties are bound or
affected; (iii) assuming compliance with Blue Sky laws, the rules of the
National Association of Securities Dealers, Inc. (the "NASD"), and the rules and
regulations of the American Stock Exchange LLC (the "AMEX") applicable to the
offer and sale of the Offered 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 the
Company or the Subsidiaries or any of its respective properties or
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businesses or (iv) result in a breach, termination or lapse of the Company's or
the Subsidiaries' corporate power and authority to own or lease and operate its
respective properties and conduct their respective businesses.
(h) At the date or dates indicated in the Prospectus, the Company
had the duly authorized and outstanding capitalization set forth in the
Prospectus under the heading "Capitalization" and will have, upon 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 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 the Company or securities convertible into or
exchangeable for capital stock of the Company, except as described in or
contemplated by the Prospectus. The information in the Prospectus, insofar as it
relates to all outstanding options and other rights to acquire securities of the
Company as of the Effective Date, and immediately prior to the Closing Date and
any Option Closing Date, is true and correct, except to the extent that any such
options and/or other equity rights are exercised, are terminated or expire prior
to the Closing Date or any Option Closing Date.
(i) The currently outstanding shares of the Company's capital
stock, have been duly authorized and are validly issued, fully paid and
non-assessable, and none of such outstanding shares of the Company's capital
stock has been issued in violation of any right of first refusal or first offer
or any preemptive rights (in any case whether statutory, contractual or
otherwise). The holders of the outstanding shares of the Company's capital stock
are not subject to personal liability solely by reason of being such holders.
All previous offers and sales of the outstanding shares of the Company's capital
stock, whether described in the Registration Statement or otherwise, were made
in conformity with applicable federal, state and foreign securities laws. The
authorized capital stock of the Company, including, without limitation, the
outstanding common stock, the Offered 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, to the extent set forth therein, and
such descriptions conform in all material respects with the instruments defining
the same.
(j) When the Offered Shares have been duly delivered against
payment therefor as contemplated by this Agreement, the Offered 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 Offered Shares (to the extent certificates are
issued) when duly delivered against payment therefor as contemplated herein,
will be in proper legal form under, and conform in all respects to the
requirements of, the Pennsylvania Business Corporation law, as amended (the
"PBCL"). Other than as described in the Prospectus, all of which have been
waived in connection with the offering and sale of the Offered Shares pursuant
to the Registration Statement, neither the filing of the Registration Statement
nor the offering or sale of Offered Shares as contemplated by this Agreement
gives any security holder of the Company any rights for or relating to the
registration of any capital stock of the Company or any rights to convert or
have redeemed or otherwise receive from the Company anything of value with
respect to any other security of the Company owned by such holder.
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(k) No consent, approval, authorization, order, registration,
license or permit of, or filing or registration (other than those which have
been obtained) with, any court, government, governmental agency (including the
Comptroller of the Currency, the Federal Reserve Board and the Federal Deposit
Insurance Corporation) , instrumentality or other regulatory body or official
having jurisdiction over the Company and its Subsidiaries is required for the
valid and legal execution, delivery and performance by the Company of this
Agreement and the consummation by the Company of the transactions contemplated
hereby, except such as may be required for the registration of the Offered
Shares under the Act, 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 and AMEX.
(l) The Preferred Stock (including the Offered Shares) is
registered pursuant to Section 12(g) of the Exchange Act. The issued and
outstanding shares of Preferred Stock are listed for trading on the American
Stock Exchange, subject only to notice of issuance. Neither the Company, AMEX
nor, to the Company's knowledge, any other person has taken any action designed
to cause, or reasonably likely to result in, the termination of the registration
of the Preferred Stock under the Exchange Act. The Company has not received any
notification from the SEC or the AMEX that it is contemplating terminating such
registration or inclusion of the Preferred Stock. The Common Stock, par value
$0.33 per share, of the Company (the "Common Stock") is listed for trading on
the AMEX. Neither the Company, AMEX nor, to the Company's knowledge any other
person has taken any action designed to cause, or reasonably likely to result
in, the termination of the registration of the Common Stock under the Exchange
Act. The Company has not received any notification from the SEC or AMEX that it
is contemplating terminating such registration or inclusion of the Preferred
Stock. Neither the Company nor, to the Company's knowledge, any other person has
taken any action designed to cause, or reasonably likely to result in, the
termination of the registration of the Common Stock under the Exchange Act. The
Company has not received any notification from the SEC or AMEX that it is
contemplating terminating such registration or inclusion of the Common Stock.
(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 and present or summarize fairly 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 under the
Act or the Regulations that have not been so described, referred to or filed, as
required.
(n) Each contract or other instrument (however characterized or
described) to which the Company or the Subsidiaries is a party, or by which any
of their respective properties, assets or businesses is bound or affected, has
been duly and validly executed by the Company and, to the Company's knowledge,
by the other parties thereto. Each such contract or other instrument is in full
force and effect and is enforceable against the Company in accordance with its
terms, except as enforcement may be limited by bankruptcy, insolvency or other
similar laws relating to or affecting creditors' rights generally or by general
principles of equity and rules of law governing specific performance, estoppel,
waiver, injunctive relief and other equitable remedies (regardless of whether
enforcement is sought in a proceeding at law or in equity), and neither the
Company nor the Subsidiaries are, and to the knowledge of the Company, no other
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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 by the
Company under any such contract or other instrument. All necessary consents
required by the Company under such contracts or other instruments to the
disclosure in the Prospectus with respect thereto have been obtained.
(o) The consolidated financial statements of the Company
(including the notes thereto) filed as part of the Preliminary Prospectus dated
[ ], 2002, the Prospectus and the Registration Statement present fairly the
financial position of the Company as of the respective dates thereof, and the
results of operations and cash flows of the Company for the periods indicated
therein, all in conformity with generally accepted accounting principles
consistently applied ("GAAP"). The supporting notes and schedules included in
the Registration Statement fairly present, the information required to be stated
therein. The financial information included in the Prospectus under the captions
"Summary Financial Information" and "Selected Consolidated Financial
Information" presents fairly the information shown therein and has been compiled
on a basis consistent with that of the audited financial statements included in
the Registration Statement. The adjustments to financial information included in
the Prospectus under the caption "Capitalization" have been properly applied to
the historical amounts in the compilation of that information to reflect the
sale by the Company of [ ] shares of Preferred Stock offered thereby at
the actual price set forth in the Prospectus 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 loss or damage to any material assets), or
development involving a prospective material adverse change, in the properties,
condition (financial or otherwise), results of operations, stockholders' equity,
business or prospects (collectively, the "Business Condition") of the Company
and the Subsidiaries taken as a whole; (ii) any material adverse change, loss,
reduction, termination or non-renewal of any contract to which the Company or
any of the Subsidiaries is a party or by which any of their respective
properties, assets or businesses is bound or affected; (iii) any material
transaction entered into by the Company or any of the Subsidiaries not in the
ordinary course of its business; (iv) any dividend or distribution of any kind
declared, paid or made by the Company or the Subsidiaries on its capital stock;
(v) any liabilities or obligations, direct or indirect, incurred by the Company
or the Subsidiaries that are material to the Company and the Subsidiaries taken
as a whole; (vi) any change in the capitalization of the Company or the
Subsidiaries, except for the exercise, termination or expiration of options
and/or other rights to acquire securities of the Company; or (vii) any change in
the indebtedness of the Company or the Subsidiaries that is material to the
Company and the Subsidiaries taken as a whole. Neither the Company nor any of
the Subsidiaries has any contingent liabilities or obligations that are material
and that are not expressly disclosed in the Prospectus.
(q) The Company has not distributed, and will not distribute, any
offering material in connection with the offering and sale of the Offered Shares
other than the Registration Statement, a Preliminary Prospectus, the Prospectus
and other material, if any, permitted by the Act and the Regulations. Neither
the Company nor any of its officers, directors or affiliates has taken any
action designed to, or that might be reasonably expected to, cause or result in
stabilization or manipulation of the price of the Preferred Stock or the Common
Stock.
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(r) The Company and the Subsidiaries have filed with the
appropriate federal, state and local governmental agencies, and all appropriate
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 any of them to the extent that the same have
become due. Neither the Company nor any of the Subsidiaries have 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 neither
the Company nor any of the Subsidiaries is a party to any pending action or
proceeding by any 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 the Company or the Subsidiaries.
(s) KPMG, LLP, which has given its report(s) on certain financial
statements included as part of the Registration Statement, is a firm of
independent certified public accountants as required by the Act and the
Regulations with respect to the Company.
(t) Neither the Company nor any of the Subsidiaries are, in any
material respect, in violation of, or in default under, any of the terms or
provisions of (i) its Articles or Certificate of Incorporation, Certificate of
Organization or Bylaws, or similar governing instruments, (ii) any material
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 material license, permit, certification, registration,
approval, consent or franchise.
(u) There are no claims, actions, suits, proceedings,
arbitrations, investigations or inquiries pending before, or, to the knowledge
of the Company, threatened or contemplated by, any governmental agency,
instrumentality, court or tribunal, domestic or foreign, or before any private
arbitration tribunal to which the Company or any of the Subsidiaries are or may
be made a party that could reasonably be expected to affect the validity of any
of the outstanding Preferred Stock or the Subsidiaries, or that, if determined
adversely to the Company or the Subsidiaries would, in any case or in the
aggregate, have a Material Adverse Effect nor, to the Company's knowledge, is
there any reasonable basis for any such claim, action, suit, protest,
proceeding, arbitration, investigation or inquiry. To the knowledge of the
Company, there are no outstanding orders, judgments or decrees of any court,
governmental agency, instrumentality or other tribunal enjoining the Company or
the Subsidiaries from, or requiring the Company or the Subsidiaries to, take or
refrain from taking, any action, or to which the Company or the Subsidiaries or
their properties, assets or businesses are bound or subject.
(v) The Company and each Subsidiary owns, or possesses adequate
rights to use, all patents, patent applications, trademarks, trademark
registrations, applications for trademark registration, trade names, service
marks, licenses, inventions, copyrights, know-how (including any unpatented
and/or unpatentable proprietary or confidential technology, information,
systems, design methodologies and devices or procedures developed or derived
from or for the Company's business), trade secrets, confidential information,
processes and formulations and other proprietary information necessary for, used
in, or proposed to be used in,
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the conduct of the business of the Company and the Subsidiaries as described in
the Prospectus (collectively, the "Intellectual Property"). Neither the Company
nor any of the Subsidiaries has infringed, are infringing or has received any
notice of conflict with, the asserted rights of others with respect to the
Intellectual Property and the Company knows of no reasonable basis therefor. To
the knowledge of the Company, no other parties have infringed upon or are in
conflict with any Intellectual Property. Neither the Company nor any of the
Subsidiaries is a party to, or bound by, any agreement, material to the conduct
of the Company's and the Subsidiaries' business, pursuant to which royalties,
honorariums or fees are payable by the Company or the Subsidiaries to any person
by reason of the ownership or use of any Intellectual Property.
(w) The Company and each Subsidiary 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. The Company
and each Subsidiary, as applicable, has insured its property against loss or
damage by fire or other casualty, in amounts reasonably believed by the Company
to be adequate, and maintains insurance against such other risks as management
of the Company deems appropriate. All real and personal property leased by the
Company as described or referred to in the Prospectus, is held by the Company
under valid leases. The executive offices and other facilities of the Company or
the Subsidiaries (the "Premises"), and all operations conducted thereon by the
Company or the Subsidiaries in compliance with all foreign or domestic, 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"). To the Company's knowledge, there are no conditions on, about, beneath
or arising from the Premises, that might give rise to liability to the Company,
the imposition of a statutory lien or require a "Response," "Removal" or
"Remedial Action," each as defined herein, under any of the Environmental Laws,
except as described in the Prospectus. Except as disclosed in the Prospectus,
(i) neither the Company nor any of the Subsidiaries has received written notice
or has knowledge of any claim, demand, investigation, regulatory action, suit or
other action instituted or threatened against the Company or the Subsidiaries or
any portion of the Premises relating to any of the Environmental Laws, and (ii)
neither the Company nor any of the Subsidiaries has received any notice of
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 Premises. 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).
(x) The Company and each of 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 GAAP 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
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compared with existing assets at reasonable intervals and appropriate action is
taken with respect to any differences.
(y) Except for the plans that are disclosed in the Prospectus,
neither the Company nor any of the 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, and, to the extent required by the Internal
Revenue Code of 1986, as amended (the "Code"), in compliance with the Code.
Neither the Company nor any of the Subsidiaries has any employee pension benefit
plan that is subject to Part 3 of Subtitle B of Title I of ERISA or any defined
benefit plan or multi-employer plan. Neither the Company nor any of the
Subsidiaries has maintained retiree life or retiree health insurance plans that
are employee welfare benefit plans providing for continuing benefits 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. 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 any of the Company's or any of
the Subsidiaries' employees, and to the Company's knowledge, no such labor
dispute is threatened. Except as disclosed in the Prospectus, the Company has no
knowledge of any existing or threatened labor disturbance by the employees of
any of the principal suppliers, contractors or customers of the Company or the
Subsidiaries that could reasonably be expected to have a Material Adverse
Affect. Except as disclosed in the Prospectus, none of the Company's employees
is covered by a collective bargaining agreement and, to the knowledge of the
Company, no union organizing activity exists with respect to any of such
employees.
(aa) Except as disclosed in the Registration Statement, neither the
Company nor any of its officers or directors is a party to any arrangements or
understandings, whether oral or written, nor has the Company or any such person
made any payments for commissions, finder's fees or similar payments in
connection with the transactions contemplated by this Agreement.
(bb) The conditions for the Company's use of Form S-2, set forth in
the General Instructions thereto, in connection with the offer and sale by the
Company of the Offered Shares pursuant to this Agreement and the Registration
Statement have been satisfied.
(cc) The deposit accounts of Premier Bank, a Subsidiary of the
Company ("Premier"), are insured by the Bank Insurance Fund of the Federal
Deposit Insurance Corporation to the legal maximum, and no proceeding for the
termination of revocation of such insurance is pending or threatened. Premier is
a member in good standing of the Federal Home Loan Bank of Pittsburgh.
-10-
(dd) Neither the Company nor any of its subsidiaries is, or upon
consummation of the transactions contemplated hereby will be, subject to
registration as an "investment company" under the Investment Company Act of
1940, as amended (the "1940 Act"), and the rules and regulations thereunder, and
the Company will use commercially reasonable efforts to ensure that its affairs
and the affairs of its subsidiaries are conducted in the future so as not to
become subject to the 1940 Act and the rules and regulations thereunder.
(ee) No transaction has occurred or is proposed between or among
the Company and any of its respective officers, directors or shareholders or any
affiliate of the foregoing that is required to be described in and is not
described in the Registration Statement and the Prospectus.
(ff) Except as disclosed in the Prospectus, neither the Company nor
any of the Subsidiaries have engaged in any transactions required to be
disclosed in the Prospectus involving the purchase or disposition of property,
the payment or distribution of cash or other property, the lending or borrowing
of money, the guarantying of obligations, the provision of services or any
similar transaction with (i) any shareholder who is known to the Company to
beneficially own 5% or more of the common stock or any executive officer or
director of the Company or the Subsidiaries, (ii) any entity in or for which any
of the persons referred to in the preceding clause (i) is known to the Company
to be an executive officer or director or (iii) any family member of any of such
persons.
(gg) None of the Company, the Subsidiaries, any officer, or
director (when acting in his or her capacity as such officer or director) of the
Company or any Subsidiary, or, to the knowledge of the Company, any employee,
agent or other person acting on behalf of the Company or the 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 and financial conditions
or operations of the Company and the Subsidiaries or any actual or proposed
business transaction of the Company or the Subsidiaries that (i) could subject
the Company or any of the 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 or (ii) with respect to the Company or the
Subsidiaries or any of any officer or director thereof, violates any law, rule
or regulation known to the Company to which the Company or the Subsidiaries is
subject.
(hh) No unregistered securities of the Company have been sold by
the Company or on behalf of the Company by any person or persons controlling,
controlled by or under common control with the Company within the three years
prior to the date hereof, except as disclosed in the Registration Statement.
(ii) Any certificate signed by any officer of the Company in such
capacity and delivered to the Underwriter or to counsel for the Underwriter
pursuant to this Agreement shall be deemed a representation and warranty by the
Company to the Underwriter as to the matters covered thereby.
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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: (a) the Company shall sell
the Firm Shares to the Underwriter at the Offering Price, less the underwriting
discount shown on the cover page of the Prospectus, and the Underwriter shall
purchase from the Company on a firm commitment basis, at the Offering Price less
the underwriting discount shown on the cover page of the Prospectus, ________
Firm Shares. The Underwriter shall offer the Offered Shares to the public as set
forth in the Prospectus.
3. Payment and Delivery. Payment for the Firm Shares shall be made to
the Company by wire transfer of immediately available funds against delivery of
the Firm Shares to the Underwriter at the offices of Boenning & Scattergood,
Inc., 4 Tower Bridge, 000 Xxxx Xxxxxx Xxxxx, Xxxxx 000, Xxxx Xxxxxxxxxxxx,
Xxxxxxxxxxxx for the account of the Underwriter. Such payment and delivery will
be made at 10:00 a.m. EDT, 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
Underwriter. 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 Underwriter requests
not less than two full business days prior to the Closing Date, and, if
certificated, will be made available to the Underwriter for inspection, checking
and packaging at the office of the Company's transfer agent 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, on the basis of the representations, warranties, covenants and
agreements contained herein, but subject to the terms and conditions set forth
herein, the Underwriter is hereby granted an option by the Company 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 discount shown on the cover page of the Prospectus. The
Over-allotment Option granted hereby may be exercised by the Underwriter as to
all or any part of the Optional Shares at any time and from time to time within
30 days after the date of the Prospectus. The Underwriter shall not 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 shall be exercised by
the Underwriter giving notice to the Company by a letter sent by registered,
certified or overnight express United States mail, postage prepaid, or by
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 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 on or 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
Underwriter that is at least three full business days
-12-
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 each 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 Underwriter shall
become obligated to purchase from the Company the number of Optional Shares
specified in each notice of exercise of the Over-allotment Option.
(c) Payment for the Optional Shares shall be made to the Company
by wire transfer of immediately available funds against delivery of the Optional
Shares to the Underwriter at the offices of Boenning & Scattergood, Inc., 4
Tower Bridge, 000 Xxxx Xxxxxx Xxxxx, Xxxxx 000, Xxxx Xxxxxxxxxxxx, Xxxxxxxxxxxx,
for the account of the Underwriter. The certificates representing the Optional
Shares to be issued and delivered will be in such denominations and registered
in such names as the Underwriter requests upon reasonable notice prior to such
Option Closing Date, and, if certificated, will be made available to the
Underwriter for inspection, checking and packaging at the office of the
Company's transfer agent at a reasonable time in advance of such Option Closing
Date.
5. Certain Covenants and Agreements of the Company. The Company
covenants and agrees with the Underwriter as follows:
(a) If Rule 430A of the Regulations is employed, the Company will
timely file the Prospectus pursuant to and in compliance with Rule 424(b) of the
Regulations and will advise the Underwriter of the time and manner of such
filing.
(b) The Company 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 Underwriter's counsel)
of the distribution of the Offered Shares by the Underwriter that is not (i) in
compliance with the Regulations and (ii) approved by the Underwriter.
(c) The Company will advise the Underwriter 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) 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 Offered Shares for
offering or sale in
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any jurisdiction in which the Underwriter intends to make such offers or sales,
or the initiation or threatening of any proceedings for any of such purposes
known to the Company. The Company 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) The Company has delivered to the Underwriter, without charge,
as many copies of each Preliminary Prospectus as the Underwriter has requested.
The Company will deliver to the Underwriter, 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
Underwriter may request. The Company 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 Offered Shares are offered by the Underwriter
and by all dealers to whom Offered Shares may be sold, both in connection with
the offering and sale of the Offered Shares and for such period of time
thereafter as the Prospectus is required by the Act to be delivered in
connection with sales by the Underwriter or any dealer. The Company has
furnished or will furnish to the Underwriter at least one original signed copy
of the Registration Statement as originally filed and of all amendments and
supplements thereto, whether filed before or after the Effective Date, at least
one copy of all exhibits filed therewith and of all consents and certificates of
experts, and will deliver to the Underwriter such number of conformed copies of
the Registration Statement, including financial statements and exhibits, and all
amendments thereto, as the Underwriter may reasonably request.
(e) The Company 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 Offered Shares for as long as may be
necessary to complete the distribution of the Offered Shares as contemplated
hereby.
(f) The Company 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 Offered Shares, or exemption therefrom, for
offering and sale by the Underwriter and by dealers under the securities or Blue
Sky laws of such jurisdictions in which the Underwriter determines to offer the
Offered Shares, 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, the Company 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 Offered Shares, in any jurisdiction where it is not
now so subject. The Company 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 of the Offered Shares. The Company will
furnish such information and pay such filing fees and other expenses as may be
required, and otherwise cooperate in the listing of the Offered Shares on the
AMEX.
-14-
(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 Underwriter, a prospectus is required to be delivered under the Act or
the Regulations), as a result of which the Prospectus, as then amended or
supplemented, would contain, in the opinion of counsel for the Underwriter, 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 the Prospectus to comply with the Act or the Regulations or any
applicable securities or Blue Sky laws, the Company 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 Underwriter such
number of copies of such amendments, supplements or documents (in form and
substance satisfactory to the Underwriter and counsel for the Underwriter) as
the Underwriter may reasonably request. For purposes of this Section 5(g), the
Company will provide such information to the Underwriter, the Underwriter's
counsel and counsel to the Company as shall be necessary to enable such persons
to consult with the Company 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 Underwriter and the Underwriter's counsel
such further information as each may from time to time request.
(h) The Company will make generally available to its security
holders not later than 45 days after the end of the period covered thereby, an
earnings statement of the Company (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 the Company'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 twelve months from the Effective Date, the
Company will deliver to the Underwriter: (i) a copy of each report or document,
including, without limitation, reports on Forms 8-K, 10-K and 10-Q filed with
the SEC on the dates required and (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 the Company mailed to its
security holders; and (iii) every material press release in respect of the
Company or its affairs that is released or prepared by the Company.
(j) For a period of twelve months from the Effective Date, the
Company will deliver to the Underwriter such additional information concerning
the business and financial condition of the Company as the Underwriter may from
time to time reasonably request in writing, and which can be prepared or
obtained by the Company without unreasonable effort or expense.
(k) During the course of the distribution of the Offered Shares,
the Company 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 Preferred Stock or cause or result in
manipulation of the price of the Common Stock.
-15-
(l) For a period of 180 days after the Effective Date, the Company
will not, without the prior written consent of the Underwriter, offer, sell,
contract to sell or otherwise dispose of any Preferred Stock or any securities
convertible into or exercisable for any Preferred Stock or grant options to
purchase any Preferred Stock.
(m) For a period of three years from the Effective Date, the
Company will use all reasonable efforts to maintain the listing of the Preferred
Stock (including, without limitation, the Offered Shares) on the AMEX.
(n) The Company shall, at its sole cost and expense, supply and
deliver to the Underwriter and the Underwriter's counsel, within a reasonable
period from the Closing Date, transaction binders in such number and in such
form and content as the Underwriter reasonably requests.
(o) The Company will use the net proceeds from the sale of the
Offered Shares to be sold by it hereunder substantially in accordance with the
description set forth in the Prospectus.
6. Payment of Fees and Expenses. Whether or not the transactions
contemplated by this Agreement are consummated and regardless of the reason this
Agreement is terminated, the Company 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 the Company under this Agreement, including: (i) the fees and
expenses of the accountants and counsel for the Company 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 and related documents as may be required in connection with the
offering, purchase, sale, issuance or delivery of the Offered Shares and the
Blue Sky Memorandum (and any supplement thereto); (iii) the costs and expenses
incident to the authentication, issuance, sale and delivery of the Offered
Shares to the Underwriter; (iv) the fees, expenses and all other costs of
qualifying the Offered Shares for sale under the securities or the Blue Sky laws
of those states or foreign jurisdictions in which the Offered Shares are to be
offered or sold, (v) the documented fees and expenses of the Underwriter up to
and not to exceed $90,000 for the fees and expenses of Underwriter's counsel and
such local counsel as may have been reasonably required, the fees, expenses and
other costs of, or incident to, securing any review or approvals by or from the
NASD, and the costs and expenses incurred by the Underwriter in connection with
the preparation for and participation in any road shows or other meetings with
the brokerage community, institutional investors or other potential purchasers
of the Offered Shares; (vi) the filing fees of the SEC; (vii) the cost of
furnishing to the Underwriter copies of the Registration Statement, Preliminary
Prospectuses and Prospectuses as herein provided; (viii) the Company's travel
expenses in connection with meetings with the brokerage community and
institutional investors; (ix) any fees or costs payable to the AMEX as a result
of the offering; (x) the cost of printing certificates for the Offered Shares;
(xi) the costs and charges of any transfer agent; (xii) all taxes, if any, on
the issuance, delivery and transfer of the Offered Shares sold by the Company;
and (xiii) all other costs and expenses reasonably incident to the performance
of the Company's obligations hereunder that are not otherwise
-16-
specifically provided for in this Section 6(a); provided, however, except as set
forth above, the Underwriter shall be responsible for its own out-of-pocket
costs and expenses.
7. Conditions to Underwriter's Obligations. The obligation of the
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, on the Closing Date and on
any Option Closing Date to the continuing accuracy of the representations and
warranties of the Company, to the performance by the Company 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 (including any document incorporated by reference
therein) or the sale of any of the Offered 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 Company's
knowledge, shall be contemplated by the SEC or by any authority in any
jurisdiction designated by the Underwriter pursuant to Section 5(f) hereof.
(b) All corporate proceedings and other matters incident to the
authorization, form and validity of this Agreement, the Offered 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 Underwriter.
The Company 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 Underwriter shall have received from the Underwriter's counsel, an
opinion, dated as of the Closing Date and any Option Closing Date, as the case
may be, and addressed to the Underwriter, which opinion shall be satisfactory to
the Underwriter.
(c) The NASD shall have indicated it has no objection to the
underwriting arrangements pertaining to the sales of any of the Offered Shares.
(d) The Underwriter shall have received at or prior to the Closing
Date from Underwriter's counsel a memorandum or summary, in form and substance
satisfactory to the Underwriter, with respect to the qualification for offering
and sale by the Underwriter of the Offered Shares under the securities or Blue
Sky laws of such jurisdictions designated by the Underwriter pursuant to Section
5(f) hereof.
(e) On the Closing Date and any Option Closing Date, there shall
have been delivered to the Underwriter a signed opinion of Xxxxxxxx Xxxxxxxx,
P.C., counsel to the Company, dated as of each such date and addressed to the
Underwriter, to the effect set forth in Exhibit A hereto, or to such effect as
is otherwise reasonably satisfactory to the Underwriter.
(f) At the Closing Date and on any Option Closing Date: (i) the
Registration Statement and any post-effective amendment thereto and the
Prospectus and any amendments or
-17-
supplements thereto shall contain all statements that are required to be stated
therein in accordance with the Act and the Regulations and shall conform in all
material respects 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 the Company and the Subsidiaries 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 the Company or
the Subsidiaries other than in the ordinary course of business and as set forth
in the 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 the
Company or the 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
the Company or the 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 the Company or the Subsidiaries
before or by any federal, state or other commission, board or administrative
agency wherein an unfavorable decision, ruling or finding would have a Material
Adverse Effect.
(g) The Underwriter shall have received at the Closing Date and
any Option Closing Date certificates of the Chief Executive Officer and the
Chief Financial Officer of the Company, dated as of the date of the Closing Date
or Option Closing Date, as the case may be, and addressed to the Underwriter, to
the effect that (i) the representations and warranties of the Company 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 the Company 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 Underwriter shall have received a letter, dated
the date of delivery thereof, addressed to the Underwriter, in form and
substance satisfactory to the Underwriter (including, without limitation, the
non-material nature of the changes or decreases, if any, referred to in clause
(iii) below) from KPMG, LLP:
-18-
(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 the Company and the Subsidiaries
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;
(iii) stating that, on the basis of the specified procedures,
which included the procedures 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
available unaudited consolidated financial statements of the Company), a reading
of the latest available unaudited interim consolidated financial statements of
the Company (with an indication of the date of the latest available unaudited
interim financial statements), a reading of the minutes of the meetings of the
shareholders and the Board of Directors of the Company and the Audit and
Compensation Committees of such Boards and inquiries to certain officers and
other employees of the Company 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 the Company included in the Registration
Statement and related schedules, if any, (1) do not comply as to form in all
material respects with the applicable accounting requirements of the Act and the
Regulations, or (2) were not fairly presented in conformity with GAAP or
statutory accounting practices on a basis substantially consistent with that of
the audited Consolidated Financial Statements and related schedules included in
the Registration Statement; or (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 (other than the issuance of capital stock upon the exercise of
options granted under plans disclosed in the Prospectus or otherwise outstanding
and disclosed in the Prospectus), increase in long-term debt of the Company or
any decrease in consolidated net current assets or shareholders equity of the
Company as compared with the amounts shown in the December 31, 2001 audited
balance sheets of the Company included the Registration Statement or that for
the periods from December 31, 2001 to the date of the latest available unaudited
financial statements of the Company 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 Underwriter
shall in its sole discretion accept;
(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 Underwriter 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 the Company's 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 the Company)
with the results obtained from the
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application of readings, inquiries and other appropriate procedures set forth in
the letter, and found them to be in agreement.
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 (h).
(i) There shall have been duly tendered to the Underwriter,
certificates or uncertificated shares representing all of the Offered Shares to
be purchased by the Underwriter on the Closing Date or Option Closing Date, as
the case may be.
(j) The issuance and sale of the Offered Shares shall be legally
permitted under applicable Blue Sky or state securities laws so long as such
sales are made in accordance with the Blue Sky Memorandum.
(k) At the Closing Date and any Option Closing Date, the
Underwriter shall have been furnished such additional documents, information and
certificates relating to the Company and the Subsidiaries or the transactions
contemplated by this Agreement as it shall have reasonably requested.
All such opinions, certificates, letters and documents shall be in
compliance with the provisions hereof only if they are satisfactory in form and
substance to the Underwriter and the Underwriter's counsel. The Company shall
furnish the Underwriter with such conformed copies of such opinions,
certificates, letters and other documents as it shall reasonably request. If any
condition to the Underwriter's 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 Underwriter may terminate this Agreement with respect to the
Closing Date or such Option Closing Date, as applicable, or, if it so elects,
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
Underwriter to the Company.
8. Indemnification and Contribution.
(a) The Company shall indemnify and hold harmless the Underwriter,
and each person, if any, who controls the 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 (i) any breach of the
Company's representations and warranties made in this Agreement or (ii) any
untrue statements or alleged untrue statements of material fact contained in any
Preliminary Prospectus, the Registration Statement or the Prospectus, any other
document filed in any jurisdiction in order to qualify all or any part of the
Offered Shares under the securities laws thereof or filed with the SEC, the NASD
or AMEX (in this Section 8 collectively called "application"), 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
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respect of any statement or omission made in reliance upon and in conformity
with written information furnished to the Company 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, the NASD or AMEX, 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 the
Underwriter (or to the benefit of any person controlling the Underwriter) on
account of any such loss, claim, liability or expense arising from the sale of
the Offered Shares by the 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 thereunder, 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 the
Company has delivered the Prospectus to the Underwriter in requisite quantity on
a timely basis to permit such delivery or sending. The obligations of the
Company under this Section 8(a) will be in addition to any liability the Company
may otherwise have.
(b) The Underwriter shall indemnify and hold harmless the Company,
each of the directors of the Company, each of the officers of the Company who
shall have signed the Registration Statement, and each other person, if any, who
controls the Company within the meaning of the Act to the same extent as the
foregoing indemnities from the Company contained in subsection 8(a)(ii) above,
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 (or not furnished in the case of
an omission or an alleged omission of information relating to any Underwriter)
to the Company by the 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
the Underwriter under this Section 8(b) will be in addition to any liability
which the 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, 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 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
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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 and does not
include a statement as to or an admission of fault, culpability or a failure to
act by or on behalf of any indemnified party. 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, then each indemnifying 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 the Company on the one hand and the
Underwriter on the other from the offering of the Offered 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 the
Company on the one hand and the Underwriter 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 the Company on the one hand and the Underwriter 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 the Company bears to
the total underwriting discount and commissions received by the Underwriter, 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 the
Company, on the one hand, or the Underwriter, on the other hand, and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
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The Company and the Underwriter agree that it would not be just and
equitable if contributions pursuant to this Section 8(d) were determined by pro
rata allocation 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
Underwriter shall not be required to contribute any amount in excess of the
underwriting discount applicable to the Offered Shares purchased by the
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.
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 Underwriter and the Company,
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 the Underwriter or any controlling
person, and shall survive delivery of the Offered 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. EDT time,
on the first business day following the Effective Date or at the time of the
public offering by the Underwriter of the Offered Shares, whichever is earlier,
except that the provisions of Sections 6, 8, 9 and 10 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 Offered Shares are first
released by the Underwriter for offering by dealers. The Underwriter and the
Company may prevent the provisions of this Agreement (other than those contained
in Sections 6, 8, 9 and 10) hereof from becoming effective without liability of
any party to any other party, except as noted below, by giving the notice
indicated in Section 8(c) hereof before the time the other provisions of this
Agreement become effective.
(b) The Underwriter 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 the Company or the Subsidiaries, whether or
not arising in the ordinary course of business, that
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would, in the Underwriter's opinion, make the offering or delivery of the
Offered Shares impracticable;
(ii) any outbreak or significant escalation 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, significant escalation, calamity, crisis
(including, without limitation, acts of terrorism) or change would, in the
Underwriter's opinion, make the offering or delivery of the Offered Shares
impracticable;
(iii) any suspension or limitation of trading generally in
securities on the New York Stock Exchange, AMEX or the Nasdaq National 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 Underwriter's 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, including, without limitation, the Federal Reserve
Board, which in the Underwriter's opinion materially and adversely affects or
will materially or adversely affect the Business Condition of the Company or the
Subsidiaries;
(v) declaration of a banking moratorium by the 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
Underwriter's opinion has a material adverse effect on the securities markets in
the United States; or
(vii) trading in any securities of the Company shall have been
suspended by the AMEX or the SEC.
(c) If the Underwriter elects to prevent this Agreement from
becoming effective or to terminate this Agreement as provided in this Section
10, the Underwriter shall notify the Company promptly by telephone or facsimile,
confirmed by letter.
11. Information Furnished by the Underwriter. The identity of the
Underwriter set forth in the first paragraph under the heading "Underwriting,"
the reallowance figure appearing in the third paragraph under the heading
"Underwriting" and the representations with respect to the matters in the
seventh paragraph under the heading "Underwriting" constitute the only written
information furnished by reference or on behalf of the Underwriter referred to
in Sections 1(b) and 8 hereof.
12. Notice. All communications hereunder, except as herein otherwise
specifically provided, shall be in writing and, if sent to the Underwriter,
shall be mailed, (by overnight United States Express Mail) delivered by hand or
by overnight courier guaranteeing next business day delivery or telecopied and
confirmed to Boenning & Scattergood, Inc., 4 Tower Bridge, 000 Xxxx Xxxxxx
Xxxxx, Xxxxx 000, Xxxx Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000; Attention: Xx. Xxxxx X.
Xxxxx, facsimile number (000) 000-0000; with a copy to Xxxxxx Xxxxxxxx LLP,
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3000 Two Xxxxx Xxxxxx, Xxxxxxxxxx & Xxxx Xxxxxxx, Xxxxxxxxxxxx, Xxxxxxxxxxxx
00000; Attention: Xxxxx X. Xxxxxxx, Esquire; facsimile number (000) 000-0000;
and if sent to the Company, shall be mailed (by overnight United States Express
Mail), delivered by hand or by overnight courier guaranteeing next business day
delivery or telecopied and confirmed to Premier Bancorp, Inc., 000 Xxxxx Xxxx
Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxxxx, 00000 Attention: Xxxx X. Xxxxxxxxxx, facsimile
number (000) 000-0000; with a copy to Xxxxxxxx Xxxxxxxx, P.C., 0000 Xxxxxxx
Xxxxx Xxxx, Xxxx Xxxx, Xxxxxxxxxxxx, 00000; Attention: Xxxxxxxx Xxxxx, Xx.,
Esquire; facsimile number (000) 000-0000.
13. Parties. This Agreement shall inure solely to the benefit of, and
shall be binding upon, the Underwriter, the Company, 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 Offered
Shares merely because of such purchase.
14. Definition of Business Day. For purposes of this Agreement,
"business day" means any day on which the AMEX is opened for trading.
15. Counterparts; Facsimile or Electronic Signatures. This Agreement may
be executed in one or more counterparts, including by facsimile or electronic
signatures and all such counterparts will constitute one and the same
instrument.
16. 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. All references
herein to the knowledge of the Company shall be deemed to include the knowledge
of each of the Subsidiaries.
If the foregoing correctly sets forth your understanding of our agreement,
please sign and return to the Company the enclosed duplicate hereof, whereupon
it will become a binding agreement in accordance with its terms.
Very truly yours,
PREMIER BANCORP, INC.
By:________________________________
Name:
Title: President
The foregoing Agreement is hereby confirmed and accepted as of the date first
above written.
BOENNING & SCATTERGOOD, INC.
By:________________________________
Name:
Title:
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EXHIBIT A
Matters to be Covered in the Opinion of
Xxxxxxxx Xxxxxxxx, P.C.
Special Counsel for the Company
1. The Company has been duly incorporated and is validly subsisting as
a corporation in good standing under the laws of the Commonwealth with the
requisite power and authority to own its properties and conduct its businesses
as described in the Prospectus; each of the Subsidiaries has been duly organized
and is validly existing as a corporation in good standing under the laws of the
jurisdiction in which it was organized with the requisite power and authority to
own its properties and conduct its businesses as described in the Prospectus;
each of the Company and the Subsidiaries are qualified to transact business in
each jurisdiction in which the conduct of its business or in which its ownership
or leasing of property requires such qualification except where any such failure
to be so qualified could not reasonably be expected to have a Material Adverse
Effect.
2. The Company has all requisite power and authority to enter into this
Agreement, and this Agreement has been duly authorized, executed and delivered
by the Company and constitutes its legal, valid and binding obligation,
enforceable against the Company in accordance with its terms, except as
enforceability may be limited by (a) applicable bankruptcy, insolvency,
reorganization, fraudulent conveyance moratorium, or similar laws and court
decisions relating to or affecting creditors' rights generally; (b) general
principles of equity, regardless of whether applied in a proceeding at law or in
equity; (c) judicial imposition of an implied covenant of good faith and fair
dealing; and (d) Federal state laws or public policy relating to the
enforceability of the indemnification and contribution provisions contained in
this Agreement.
3. The execution, delivery and performance of this Agreement by the
Company does not and will not, with or without the giving of notice or the lapse
of time or both, (A) conflict with any terms or provisions of the Company's
Articles of Incorporation, as amended, or Bylaws, as amended or any of the
Subsidiaries' Articles or Certificates of Incorporation, as amended, Certificate
of Organization, Bylaws or similar governing document, as amended; (B) result in
a breach of, or constitute a default under, result in the termination or
modification of, or result in the creation of imposition of any lien, security
interest, charge or encumbrance upon any of the properties of the Company and/or
the Subsidiaries pursuant to, any indenture, mortgage, deed of trust, contract,
commitment or other agreement or instrument known to such counsel and to which
the Company or the Subsidiaries are a party or by which any of their properties
are bound or affected; (C) violate any Federal or Pennsylvania law, rule or
regulation or any judgment, order or decree known to such counsel of any
government or governmental agency, instrumentality or court having jurisdiction
over the Company or any of the Subsidiaries or any of their respective
properties or business.
4. The outstanding shares of capital stock and other equity interests
of each of the Subsidiaries have been duly authorized and validly issued, are
fully paid and non-assessable and, to such counsel's knowledge, are owned by the
Company, directly or indirectly, and to the
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knowledge of such counsel, no options, warrants or other rights to purchase any
shares of capital stock of the Subsidiaries are outstanding.
5. At the date or dates indicated in the Prospectus, the Company had
the duly authorized capital stock as set forth under the heading
"Capitalization" in the Prospectus and, to the knowledge of such counsel, the
outstanding capital stock as set forth under the heading "Capitalization" in the
Prospectus; the outstanding shares of common stock have been duly authorized and
validly issued and are fully paid and non-assessable; the common stock issuable
upon exercise of outstanding options, when issued in accordance with the
respective terms thereof, will be duly authorized and validly issued and will be
fully paid and non-assessable; certificates for the Offered Shares (if any) are
in proper form and conform in all respects to the requirements of the
Pennsylvania Business Corporation Law; the Offered Shares to be sold by the
Company pursuant to the Agreement have been duly authorized and will be validly
issued, fully paid and non-assessable when issued and paid for as contemplated
by this Agreement; and no preemptive rights of shareholders under the
Pennsylvania Business Corporation Law or by any contract to which the Company is
a party and which is known to such counsel exists with respect to any of the
Offered Shares to be sold by the Company or the issue and sale thereof and, to
such counsel's knowledge, neither the filing of the Registration Statement nor
the offering or sale of the Offered Shares to be sold by the Company as
contemplated by this Agreement gives any security holder of the Company any
rights, other than those which have been satisfied or waived, for or relating to
the registration of any capital stock of the Company.
6. To the knowledge of such counsel, the Company is not an "investment
company" as such term is defined in the Investment Company Act of 1940, as
amended.
7. The Registration Statement has become effective under the Act and,
to the knowledge of such counsel, no stop order proceedings with respect thereto
have been instituted or are pending or threatened under the Act. Any and all
filings required to be made by Rule 424 and Rule 430A under the Act have been
made.
8. The statements under the heading "Description of Securities" in the
Prospectus, insofar as such statements constitute a summary of documents
referred to therein or matters of law, fairly present in all material respects
the information contained in such documents or such matters of law.
9. The Preferred Stock (including the Offered Shares) has been duly
listed for trading on the American Stock Exchange, subject only to notice of
issuance.
10. The Registration Statement, the Prospectus and each amendment or
supplement thereto, and each document filed by the Company with the SEC and
incorporated by reference therein, comply as to form with the requirements of
the Act and the Exchange Act, as applicable, and the applicable rules and
regulations thereunder.
11. Such counsel does not know of any contracts or documents required to
be filed as exhibits to, or incorporated by reference in, the Registration
Statement or described in the Registration Statement or the Prospectus which are
not so filed, incorporated by reference or
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described as required, and such contracts and documents as are summarized in the
Registration Statement or the Prospectus are fairly summarized in all material
respects.
12. To such counsel's knowledge, there are no claims, actions, suits
proceedings, arbitrations, investigations or inquiries pending before, or
threatened by, any governmental agency, instrumentality, court or tribunal,
domestic or foreign, or before any private arbitration tribunal, to which the
Company or any of the Subsidiaries is a party or is threatened to be made a
party that, if determined adversely to the Company or any of the Subsidiaries,
would have a Material Adverse Effect or would materially adversely affect the
sale of the Offered Shares.
13. Other than from the SEC and AMEX, no approval, consent, order or
authorization by any regulatory, administrative or other governmental body is
necessary in connection with the execution and delivery by the Company of this
Agreement and the consummation of the transactions therein contemplated (other
as may be required by the NASD or by state securities and Blue Sky laws, as to
which such counsel need express no opinion).
14. In addition to the matters set forth above, such opinion shall also
include a statement to the effect that while such counsel is not passing upon
and does not assume any responsibility for the accuracy, adequacy, completeness
or fairness of the statements contained in the Registration Statement or the
Prospectus (other than as to the matters set forth in paragraphs 8 and 11
above), and has not conducted any independent investigation to determine the
existence or absence of any factual conditions or circumstances, based upon such
counsel's participation in discussions with representatives of the Company, and
the Underwriter, counsel for the Underwriter , and KPMG in connection with the
preparation of the Registration Statement and Prospectus, nothing has come to
the attention of such counsel which leads such counsel to believe that the
Registration Statement, at the time it became effective and as of the date
hereof, contained or contains any untrue statement of a material fact or omitted
or omit to state any material fact required to be stated therein or necessary in
order to make the statements therein, in light of the circumstances in which
they were made, not misleading, or that the Prospectus on the Effective Date and
as of the date of the Prospectus, as the case may be, contains any untrue
statement of material fact or omits to state any material fact required to be
stated therein or necessary in order to make the statements therein, in light of
the circumstances in which they were made, not misleading; except that such
counsel need express no opinion with respect to the financial statements,
schedules and the notes thereto, or other financial information derived
therefrom and other financial and statistical information contained in or
omitted therefrom.
The foregoing opinion may be limited to the laws of the United States and
Pennsylvania. Such counsel may rely as to questions of fact upon the
representations of the Company set forth in this Agreement and upon certificates
of officers of the Company and of government officials.
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