1
Exhibit 1
$100,000,000
PROVIDENT CAPITAL TRUST III
10 1/4% TRUST PREFERRED SECURITIES
AS FULLY AND UNCONDITIONALLY GUARANTEED BY
PROVIDENT FINANCIAL GROUP, INC.
UNDERWRITING AGREEMENT
November 6, 2000
XXXXXX BROTHERS INC.
X.X. XXXXXXX & SONS, INC.
PRUDENTIAL SECURITIES INCORPORATED
MCDONALD INVESTMENTS INC.
X.X. XXXXXX SECURITIES INC.
XXXXXXXX INC.
As Representatives of the several
Underwriters named in Schedule 1
c/x Xxxxxx Brothers Inc.
Three World Financial Center
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Provident Financial Group, Inc., an Ohio corporation (the
"Company"), proposes to sell an aggregate of $100 million liquidation amount of
10 1/4% Trust Preferred Securities, liquidation amount $25 per Trust Preferred
Security (the "Preferred Securities") of Provident Capital Trust III, a
statutory business trust formed under the Business Trust Act of the State of
Delaware (the "Trust"), guaranteed (the "Guarantee" and, together with the
Preferred Securities and the Junior Subordinated Debentures referred to below,
the "Securities") by the Company pursuant to the Guarantee Agreement (the
"Guarantee Agreement") to be entered into by and between the Company and The
Chase Manhattan Bank, as guarantee trustee (the "Guarantee Trustee"), the form
of which has been filed as an exhibit to the Registration Statement (as defined
below). The Company will be the owner of all of the undivided beneficial
ownership interests represented by the common securities (the "Common
Securities") of the Trust. The Trust will issue the Preferred Securities and the
Common Securities to the Company in exchange for 10 1/4% Junior Subordinated
Debentures due 2030 (the "Junior Subordinated Debentures") issued by the
Company. The Junior Subordinated Debentures are to be issued pursuant to an
Indenture (the "Indenture") to be entered into between the Company and The Chase
Manhattan Bank, as indenture trustee (the "Indenture Trustee"), the form of
which has been filed as an exhibit to the Registration Statement. This is to
confirm the agreement concerning the purchase of the Securities from the Trust
and the Company by the Underwriters named in Schedule 1 hereto (the
"Underwriters"). This is also an acknowledgment that this Agreement applies only
to the Securities and to no other securities that may be offered or sold by the
Company or any of its
2
2
statutory business trusts under the Registration Statement and by means of the
Basic Prospectus or the Final Prospectus.
1. Representations, Warranties and Agreements of the Company
and the Trust. The Company and the Trust, jointly and severally, represent,
warrant and agree that:
(a) The Company meets the requirements for the use of Form S-3
under the Securities Act of 1933, as amended (the "Securities Act"),
and the rules and regulations promulgated thereunder (the "Rules and
Regulations"), and has carefully prepared and filed with the Securities
and Exchange Commission (the "Commission") a registration statement on
Form S-3 (File No. 333-93603), which has become effective, for the
registration of the Securities under the Securities Act. The
registration statement, as amended at the date of this Agreement, meets
the requirements set forth in Rule 415(a)(1)(x) under the Securities
Act and complies in all other material respects with such rule. The
Company proposes to file with the Commission pursuant to Rule 424 under
the Securities Act ("Rule 424") a supplement to the form of prospectus
included in the registration statement relating to the initial offering
of the Securities and the plan of distribution thereof and has
previously advised you of all further information (financial and other)
with respect to the Company to be set forth therein. The term
"Registration Statement" means the registration statement, as amended
at the date of this Agreement, including the exhibits thereto,
financial statements, and all documents incorporated therein by
reference pursuant to Item 12 of Form S-3 under the Securities Act (the
"Incorporated Documents"), and such prospectus as then amended,
including the Incorporated Documents, is hereinafter referred to as the
"Basic Prospectus"; and such supplemented form of prospectus, in the
form in which it shall be filed with the Commission pursuant to Rule
424 (including the Basic Prospectus as so supplemented), is hereinafter
called the "Final Prospectus". Any preliminary form of the Basic
Prospectus or the Final Prospectus which has heretofore been filed
pursuant to Rule 424 is hereinafter called the "Interim Prospectus".
Any reference herein to the Registration Statement, the Basic
Prospectus, any Interim Prospectus or the Final Prospectus shall be
deemed to refer to and include the Incorporated Documents which were
filed under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), on or before the date of this Agreement or the issue
date of the Basic Prospectus, any Interim Prospectus or the Final
Prospectus, as the case may be; and any reference herein to the terms
"amend", "amendment" or "supplement" with respect to the Registration
Statement, the Basic Prospectus, any Interim Prospectus or the Final
Prospectus shall be deemed to refer to and include the filing of any
Incorporated Documents under the Exchange Act after the date of this
Agreement or the issue date of the Basic Prospectus, any Interim
Prospectus or the Final Prospectus, as the case may be, and deemed to
be incorporated therein by reference. Copies of the Registration
Statement and the amendment or amendments to such Registration
Statement have been delivered by the Company and the Trust to you as
the representative (the "Representatives") of the Underwriters. The
Commission has not issued any order preventing or suspending the use of
the Registration Statement and no proceeding for that purpose has been
initiated by the Commission.
(b) The Registration Statement conforms and the Final
Prospectus and any further amendments or supplements to the
Registration Statement or the Final Prospectus,
3
3
when they become effective or were filed with the Commission, as the
case may be, will conform in all material respects to the requirements
of the Securities Act and the Rules and Regulations and do not and will
not, as of the applicable effective date (as to the Registration
Statement and any amendment thereto) and as of the applicable filing
date (as to the Final Prospectus and any amendment or supplement
thereto) contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which
they were made, not misleading; provided that no representation or
warranty is made as to information contained in or omitted from the
Registration Statement or the Final Prospectus in reliance upon and in
conformity with written information furnished to the Company and the
Trust through the Representatives by or on behalf of any Underwriter
specifically for inclusion therein; the Indenture, the Declaration and
the Guarantee Agreement conform in all material respects to and have
been qualified under the requirements of the Trust Indenture Act of
1939, as amended (the "Trust Indenture Act") and the applicable rules
and regulations thereunder.
(c) The documents incorporated by reference in the Final
Prospectus, when they were filed with the Commission, conformed in all
material respects to the requirements of the Exchange Act and the rules
and regulations of the Commission thereunder, and none of such
documents contained an untrue statement of a material fact or omitted
to state a material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which
they were made, not misleading; and any further documents so filed and
incorporated by reference in the Final Prospectus, when such documents
are filed with the Commission, will conform in all material respects to
the requirements of the Exchange Act, and the rules and regulations of
the Commission thereunder, and will not contain an untrue statement of
a material fact or omit to state a material fact required to be stated
therein, in light of the circumstances under which they were made, or
necessary to make the statements therein not misleading.
(d) The Company and each of its subsidiaries (as defined in
Section 15 hereof) have been duly incorporated and are validly existing
as corporations or as banking associations in good standing under the
laws of their respective jurisdictions of incorporation, are duly
qualified to do business and are in good standing as foreign
corporations in each jurisdiction in which their respective ownership
or lease of property or the conduct of their respective businesses
requires such qualification other than where the failure to be so
qualified and in good standing could not reasonably be expected to have
a material adverse effect on the business, financial condition or
operating results of the Company and its subsidiaries taken as a whole,
and each has all power and authority necessary to own or hold their
respective properties and to conduct the businesses in which they are
engaged.
(e) The Company has an authorized capitalization as set forth
in the Final Prospectus and all of the issued shares of capital stock
of the Company have been duly and validly authorized and issued and are
fully paid and non-assessable and conform to the description thereof
contained in the Final Prospectus; and all of the issued shares of
capital stock of each subsidiary of the Company have been duly and
validly authorized and issued and are fully paid and non-assessable
(except as set forth in 12 U.S.C. Section 55)
4
4
and are owned directly or indirectly by the Company (except for
directors' qualifying shares, if any), free and clear of all liens,
encumbrances, equities or claims.
(f) The Trust has been duly created and is validly existing as
a statutory business trust in good standing under the Business Trust
Act of the State of Delaware (the "Delaware Business Trust Act") with
the trust power and authority to own property and conduct its business
as described in the Final Prospectus; the Trust has conducted and will
conduct no business other than the transactions contemplated by this
Agreement as described in the Final Prospectus; the Trust is not a
party to or bound by any agreement or instrument other than this
Agreement, the Declaration of Trust dated as of May 14, 1999 and, when
executed, the Amended and Restated Declaration of Trust (the
"Declaration") among the Company, The Chase Manhattan Bank, as property
trustee (the "Property Trustee"), Chase Manhattan Bank USA, National
Association, as Delaware trustee (the "Delaware Trustee") and the
individuals named therein as the regular trustees (the "Regular
Trustees," and together with the Property Trustee and the Delaware
Trustees, the "Trustees"), and the holders, from time to time, of
undivided beneficial ownership interests in the assets of the Trust,
and the agreements and instruments contemplated by the Declaration and
described in the Final Prospectus; the Trust has no liabilities or
obligations other than those arising out of the transactions
contemplated by this Agreement and the agreements and instruments
contemplated by the Declaration and described in the Final Prospectus;
and the Trust is not a party or subject to any action, suit or
proceeding of any nature.
(g) The Declaration has been duly authorized by the Company
and, when duly executed and delivered by the Company, as Sponsor, and
the Regular Trustees, assuming due authorization, execution and
delivery of the Declaration by the Property Trustee and the Delaware
Trustee, will be a valid and legally binding obligation of the Company
and the Trust, enforceable against the Company and the Trust in
accordance with its terms, subject to the effects of bankruptcy,
insolvency, fraudulent conveyance and transfer, reorganization,
moratorium and other similar laws relating to or affecting the rights
of creditors generally, general equitable principles (whether
considered in a proceeding in equity or at law) and an implied covenant
of good faith and fair dealing, and will conform in all material
respects to the description thereof contained in the Final Prospectus.
Each of the Regular Trustees is an employee of the Company and/or The
Provident Bank and has been duly authorized by the Company and/or The
Provident Bank to serve in such capacity and to execute and deliver the
Declaration.
(h) The Preferred Securities and the Common Securities have
been duly and validly authorized and, when issued and delivered in
exchange for the Junior Subordinated Debentures as described above,
will be duly and validly issued and fully paid and the Preferred
Securities will be non-assessable; and the Preferred Securities and the
Common Securities, when issued and delivered, will conform in all
material respects to the description thereof contained in the Final
Prospectus.
5
5
(i) The Indenture has been duly authorized and, when duly
executed and delivered by the proper officers of the Company, and
assuming due execution and delivery by the Indenture Trustee, will
constitute a valid and legally binding agreement of the Company
enforceable against the Company in accordance with its terms, subject
to the effects of bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or
affecting creditors' rights generally, general equitable principles
(whether considered in a proceeding in equity or at law) and an implied
covenant of good faith and fair dealing; and the Indenture, when
executed and delivered, will conform in all material respects to the
description thereof contained in the Final Prospectus; the Junior
Subordinated Debentures have been duly authorized and, when duly
executed, authenticated and delivered as provided in the Indenture,
will be duly and validly issued and outstanding and will constitute
valid and legally binding obligations of the Company entitled to the
benefits of the Indenture and enforceable against the Company in
accordance with their terms, subject to the effects of bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other
similar laws relating to or affecting creditors' rights generally,
general equitable principles (whether considered in a proceeding in
equity or at law) and an implied covenant of good faith and fair
dealing; and the Junior Subordinated Debentures, when issued and
delivered, will conform in all material respects to the description
thereof contained in the Final Prospectus.
(j) The Guarantee Agreement has been duly authorized and, when
duly executed and delivered by the proper officers of the Company,
assuming due execution and delivery by the Guarantee Trustee, will
constitute a valid and legally binding agreement of the Company,
enforceable against the Company in accordance with its terms, subject
to the effects of bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or
affecting creditors' rights generally, general equitable principles
(whether considered in a proceeding in equity or at law) and an implied
covenant of good faith and fair dealing; and the Guarantee Agreement,
when executed and delivered, will conform in all material respects to
the description thereof contained in the Final Prospectus.
(k) This Agreement (and the transactions contemplated hereby)
has been duly authorized, executed and delivered by each of the Company
and the Trust.
(l) (i) The execution, delivery and performance of this
Agreement, the Declaration, the Guarantee Agreement, the Indenture, the
Common Securities, the Preferred Securities and the Junior Subordinated
Debentures by the Company and the Trust, as applicable, the issuance of
the Common Securities and the Preferred Securities by the Trust in
exchange for the Junior Subordinated Debentures, the issuance of the
Junior Subordinated Debentures by the Company in exchange for the
Common Securities and the Preferred Securities, the sale of the
Preferred Securities by the Company and the consummation of the other
transactions contemplated herein and therein will not conflict with or
result in a breach or violation of any of the terms or provisions of,
or constitute a default under, any indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument to which the Company or
any of its subsidiaries is a party or by which the Company or any of
its subsidiaries is bound or to which any of the property or assets of
6
6
the Company or any of its subsidiaries is subject and will not violate
or conflict with any statute or any order, rule or regulation of any
court or governmental agency or body having jurisdiction over the
Company, any of its subsidiaries or the Trust or any of their
properties or assets, except for such conflict, breach, violations or
defaults as would not, either individually or in the aggregate, have a
material adverse effect on the business, financial condition or
operating results of the Company and its subsidiaries taken as a whole;
nor will such actions result in any violation of the provisions of the
charter or by-laws of the Company or any of its subsidiaries; and
except for such consents, authorizations, registrations or
qualifications as have already been obtained or as may be required
under the Exchange Act and applicable state securities laws in
connection with the purchase and distribution of the Preferred
Securities by the Underwriters, no consent, approval, authorization or
order of, or filing or registration with, any such court or
governmental agency or body is required for the execution, delivery and
performance of this Agreement, the Declaration, the Guarantee
Agreement, the Indenture or the Junior Subordinated Debentures, the
issuance of the Common Securities and the Preferred Securities by the
Trust in exchange for the Junior Subordinated Securities, the issuance
of the Junior Subordinated Debentures by the Company in exchange for
the Common Securities and the Preferred Securities, the sale of the
Preferred Securities by the Company or the consummation of the
transactions contemplated herein and therein.
(m) There are no contracts, agreements or understandings
between the Company or any of its subsidiaries or the Trust and any
person granting such person the right to require the Company or the
Trust to include any other securities in the securities registered
pursuant to the Registration Statement.
(n) Neither the Company nor any of its subsidiaries has
sustained, since the date of the latest audited financial statements
included or incorporated by reference in the Final Prospectus, any
material loss or interference with its business from fire, explosion,
flood or other calamity, whether or not covered by insurance, or from
any labor dispute or court or governmental action, order or decree,
otherwise than as set forth or contemplated in the Final Prospectus;
and, since such date, there has not been any material change in the
capital stock or long-term debt of the Company or any of its
subsidiaries, or any material adverse change, or any development
involving a prospective material adverse change, in or affecting the
general affairs, management, financial position or results of
operations of the Company and its subsidiaries taken as a whole,
otherwise than as set forth or contemplated in the Final Prospectus.
(o) The financial statements (including the related notes and
supporting schedules) filed as part of the Registration Statement or
included or incorporated by reference in the Final Prospectus present
fairly in all material respects the financial condition and results of
operations of the entities purported to be shown thereby, at the dates
and for the periods indicated, and have been prepared in conformity
with generally accepted accounting principles applied on a consistent
basis throughout the periods involved; the pro forma financial
information included in the Final Prospectus has been prepared in
accordance with the requirements of Regulation S-X promulgated by the
Commission and contains all adjustments necessary for a fair
presentation of the information set forth therein; and the information
contained in the Final Prospectus that
7
7
constitutes "forward-looking statements" within the meaning of Section
21E(i)(1) of the Exchange Act has been prepared on the basis of the
Company's best current judgments and estimations as to future operating
plans and results.
(p) Ernst & Young, LLP, who have certified certain financial
statements of the Company, whose report appears in the Final Prospectus
or is incorporated by reference therein and who have delivered the
initial letter referred to in Section 7(h) hereof, are independent
public accountants as required by the Securities Act and the Rules and
Regulations.
(q) There are no legal or governmental proceedings pending to
which the Company or any of its subsidiaries is a party or of which any
property or assets of the Company or any of its subsidiaries is the
subject which, if determined adversely to the Company or any of its
subsidiaries, might have a material adverse effect on the consolidated
financial position, stockholders' equity, results of operations or
business of the Company and its subsidiaries taken as a whole; and to
the best of the Company's knowledge, no such proceedings are threatened
or contemplated by governmental authorities or threatened by others.
(r) The conditions for use of Form S-3, as set forth in the
General Instructions thereto, have been satisfied.
(s) There are no contracts or other documents which are
required to be described in the Final Prospectus or filed as exhibits
to the Registration Statement by the Securities Act or by the Rules and
Regulations which have not been described in the Final Prospectus or
filed as exhibits to the Registration Statement or incorporated therein
by reference as permitted by the Rules and Regulations.
(t) Neither the Company nor any of its subsidiaries (i) is in
violation of its charter or by-laws, (ii) is in default in any material
respect, and no event has occurred which, with notice or lapse of time
or both, would constitute such a default, in the due performance or
observance of any term, covenant or condition contained in any material
indenture, mortgage, deed of trust, loan agreement or other agreement
or instrument to which it is a party or by which it is bound or to
which any of its property or assets is subject or (iii) is in violation
in any material respect of any law, ordinance, governmental rule,
regulation or court decree to which it or its property or assets may be
subject or has failed to obtain any material license, permit,
certificate, franchise or other governmental authorization or permit
necessary to the ownership of its properties or assets or to the
conduct of its business.
(u None of the Trust, the Company or any of the Company's
subsidiaries is an "investment company" within the meaning of such term
under the Investment Company Act of 1940, as amended (the "Investment
Company Act"), and the rules and regulations of the Commission
thereunder.
8
8
(v) Except as set forth or contemplated in the Final
Prospectus, since the date as of which information is given in the
Registration Statement through the date hereof, and except as may
otherwise be disclosed in the Registration Statement, as amended or
supplemented, neither the Company nor the Trust has (i) issued or
granted any securities, (ii) incurred any liability or obligation,
direct or contingent, other than liabilities and obligations which were
incurred in the ordinary course of business, (iii) entered into any
transaction not in the ordinary course of business or (iv) in the case
of the Company, declared or paid any dividend on its capital stock.
(w) To the best of the Company's knowledge, there has been no
storage, disposal, generation, manufacture, refinement, transportation,
handling or treatment of toxic wastes, medical wastes, hazardous wastes
or hazardous substances by the Company or any of its subsidiaries (or,
to the knowledge of the Company, any of their predecessors in interest)
at, upon or from any of the properties now or previously owned or
leased by the Company or its subsidiaries in violation of any
applicable law, ordinance, rule, regulation, order, judgment, decree or
permit or which would require remedial action under any applicable law,
ordinance, rule, regulation, order, judgment, decree or permit, except
for any violation or remedial action which would not have, or could not
be reasonably likely to have, singularly or in the aggregate with all
such violations and remedial actions, a material adverse effect on the
general affairs, management, financial position, stockholders' equity
or results of operations of the Company and its subsidiaries; there has
been no material spill, discharge, leak, emission, injection, escape,
dumping or release of any kind onto such property or into the
environment surrounding such property of any toxic wastes, medical
wastes, solid wastes, hazardous wastes or hazardous substances due to
or caused by the Company or any of its subsidiaries or with respect to
which the Company or any of its subsidiaries have knowledge, except for
any such spill, discharge, leak, emission, injection, escape, dumping
or release which would not have or would not be reasonably likely to
have, singularly or in the aggregate with all such spills, discharges,
leaks, emissions, injections, escapes, dumpings and releases, a
material adverse effect on the business, financial position or
operating results of the Company and its subsidiaries; and the terms
"hazardous wastes," "toxic wastes," "hazardous substances" and "medical
wastes" shall have the meanings specified in any applicable local,
state, federal and foreign laws or regulations with respect to
environmental protection.
(x) The Company is duly registered as a bank holding company
under the Bank Holding Company Act of 1956, as amended (the "BHC Act").
(y) The deposit accounts of each of the Company's bank
subsidiaries are insured by the Federal Deposit Insurance Corporation
(the "FDIC") to the fullest extent permitted by law and the rules and
regulations of the FDIC; and no proceedings for the termination of such
insurance are pending or threatened.
(z) The Company and each of its subsidiaries are in compliance
in all material respects, as required, with all laws administered by
and regulations of the Board of Governors of the Federal Reserve
System, the FDIC, the Ohio Division of Financial
9
9
Institutions and any other federal or state bank regulatory authority
with jurisdiction over the Company or any of its subsidiaries
(collectively, the "Bank Regulatory Authorities"), other than where
such failures to comply would not have a material adverse effect on the
Company and its subsidiaries, taken as a whole. Neither the Company nor
any of its subsidiaries is a party to any written agreement or
memorandum of understanding with, or a party to any commitment letter
or similar undertaking to, or is subject to any order or directive by,
or is a recipient of any extraordinary supervisory letter from, or has
adopted any board resolutions at the request of, any Bank Regulatory
Authority which materially restricts the conduct of its business, or in
any manner relates to its capital adequacy, its credit policies or its
management, nor have any of them been advised by any Bank Regulatory
Authority that it is contemplating issuing or requesting, or is
considering the appropriateness of issuing or requesting, any such
order, decree, agreement, memorandum of understanding, extraordinary
supervisory letter, commitment letter or similar submission or any such
board resolutions.
(aa) Immediately prior to the closing of the transactions
contemplated hereby on the Closing Date, the Company will have good and
valid title to the Preferred Securities to be sold by it hereunder,
free and clear of all liens, encumbrances, equities or claims; and upon
delivery of the Preferred Securities and payment therefor pursuant
hereto, good and valid title to the Preferred Securities, free and
clear of all liens, encumbrances, equities or claims, will pass to the
several Underwriters.
2. Purchase of the Preferred Securities by the Underwriters.
(a) The Company hereby agrees to sell to the several Underwriters, and each
Underwriter, upon the basis of the representations, warranties and agreements
herein contained, but subject to the conditions hereinafter stated, agrees,
severally and not jointly, to purchase from the Company, the respective
liquidation amount of Preferred Securities set forth in Schedule 1 hereto
opposite their names at a purchase price of 100% of the liquidation amount
thereof.
(b) As compensation to the Underwriters for their commitments
hereunder, the Company shall, on the Closing Date (as defined in Section 4
hereof) pay to the Representatives, for the accounts of the several
Underwriters, a commission equal to 3.15% of the liquidation amount of the
Preferred Securities to be delivered and purchased on the Closing Date.
(c) The Company and the Trust shall not be obligated to
deliver any of the Securities to be delivered on the Closing Date, except upon
payment for all the Securities to be purchased on such Delivery Date as provided
herein.
3. Offering of Preferred Securities by the Underwriters. Upon
authorization by the Representatives of the release of the Preferred Securities,
the several Underwriters propose to offer the Preferred Securities for sale upon
the terms and conditions set forth in the Final Prospectus.
4. Delivery of and Payment. (a Delivery by the Company of the
Preferred Securities to the Representatives for the respective accounts of the
several Underwriters and payment by the Underwriters therefor by wire transfer
in federal (same day) funds to such account as the Company shall specify, shall
take place at the offices of Xxxxxxx Xxxxxxx & Xxxxxxxx, 000 Xxxxxxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, at 9:30 a.m. on November 13, 2000
10
10
or such other date and time as agreed between the Representatives and the
Company or as provided in Section 9 hereof (such date and time of delivery and
payment for the Preferred Securities being herein called the "Closing Date").
(b) The Preferred Securities will be in the form of one or
more global Preferred Securities registered in the name of Cede & Co., as
nominee of The Depository Trust Company ("DTC").
(c) On the Closing Date, the Company shall pay, or cause to be
paid, the commissions payable on the Closing Date to the Representatives for the
accounts of the Underwriters under Section 2 by wire transfer in federal (same
day) funds to such account as the Representatives shall specify.
5. Further Agreements of the Company and the Trust. Each of
the Company and the Trust, jointly and severally, agrees:
(a) To prepare the Final Prospectus in a form
approved by the Representatives and to file such Prospectus
pursuant to Rule 424(b) under the Securities Act not later
than the Commission's close of business on the second business
day following the execution and delivery of this Agreement; to
advise the Representatives, promptly after it receives notice
thereof, of the time when any amendment to the Registration
Statement has been filed or becomes effective or any
supplement to the Final Prospectus or any amended Final
Prospectus has been filed and to furnish the Representatives
with copies thereof; to file promptly all reports and any
definitive proxy or information statements required to be
filed by the Company with the Commission pursuant to Section
13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to
the date of the Final Prospectus and for so long as the
delivery of a prospectus is required in connection with the
offering or sale of the Securities; to advise the
Representatives, promptly after it receives notice thereof, of
the issuance by the Commission of any stop order or of any
order preventing or suspending the use of any Interim
Prospectus or the Final Prospectus, of the suspension of the
qualification of the Securities for offering or sale in any
jurisdiction, of the initiation or threatening of any
proceeding for any such purpose, or of any request by the
Commission for the amending or supplementing of the
Registration Statement or the Final Prospectus or for
additional information; and, in the event of the issuance of
any stop order or of any order preventing or suspending the
use of any Interim Prospectus or the Final Prospectus or
suspending the use of any Interim Prospectus or the Final
Prospectus or suspending any such qualification, to use
promptly its best efforts to obtain its withdrawal;
(b) To furnish promptly to the Representatives and to
counsel for the Underwriters a signed copy of the Registration
Statement as originally filed with the Commission, and each
amendment thereto filed with the Commission,
11
11
including all consents and exhibits filed therewith;
(c) To deliver promptly to the Representatives such
number of the following documents as the Representatives shall
reasonably request: (i) conformed copies of the Registration
Statement as originally filed with the Commission and each
amendment thereto (in each case excluding exhibits other than
this Agreement, the Indenture, the Declaration, the Guarantee
Agreement and the computation of the ratio of earnings to
fixed charges), (ii) each Interim Prospectus, the Final
Prospectus (including the Prospectus Supplement) (not later
than 10:00 A.M., New York City time, on the day following the
execution and delivery of this Agreement) and any amended or
supplemented Final Prospectus (not later than 10:00 A.M., New
York City time, on the day following the date of such
amendment or supplement) and (iii) any document incorporated
by reference in any Interim Prospectus or the Final Prospectus
(excluding exhibits thereto); and, if the delivery of a
prospectus is required at any time after the effective time of
the Registration Statement in connection with the offering or
sale of the Securities (or any other securities relating
thereto) and if, at such time, any events shall have occurred
as a result of which the Final Prospectus as then amended or
supplemented would include an untrue statement of a material
fact or omit to state any material fact necessary in order to
make the statements therein, in the light of the circumstances
under which they were made when such Final Prospectus is
delivered, not misleading, or, if for any other reason it
shall be necessary during such same period to amend or
supplement the Final Prospectus or to file under the Exchange
Act any document incorporated by reference in the Final
Prospectus in order to comply with the Securities Act or the
Exchange Act, to notify the Representatives and, upon their
request, to file such document and to prepare and furnish
without charge to each Underwriter and to any dealer in
securities as many copies as the Representatives may from time
to time reasonably request of an amended or supplemented Final
Prospectus which will correct such statement or omission or
effect such compliance;
(d) To file promptly with the Commission any
amendment to the Registration Statement or the Final
Prospectus or any supplement to the Final Prospectus that may,
in the judgment of the Company or the Representatives, be
required by the Securities Act or requested by the Commission;
(e) Prior to filing with the Commission any amendment
to the Registration Statement or supplement to the Final
Prospectus, any document incorporated by reference in the
Final Prospectus or any Final Prospectus pursuant to Rule 424
of the Rules and Regulations, to furnish a copy thereof to the
Representatives and counsel for the Underwriters and obtain
the consent of the Representatives to the filing;
(f) To make generally available to the Company's
security holders and to deliver to the Representatives as soon
as practicable an earnings statement of the Company and its
subsidiaries (which need not be audited) complying with
Section 11(a) of the Securities Act and the Rules and
Regulations (including, at the option
12
12
of the Company, Rule 158);
(g) For a period of five years following the Closing
Date, to furnish to the Representatives copies of all
materials furnished by the Company to its shareholders and all
public reports and all reports and financial statements
furnished by the Company to the principal national securities
exchange upon which the Company's common stock may be listed
or quoted pursuant to requirements of, or agreements with,
such exchange or to the Commission pursuant to the Exchange
Act or any rule or regulation of the Commission thereunder;
(h) Promptly from time to time to take such action as
the Representatives may reasonably request to qualify the
Securities for offering and sale under the securities laws of
such jurisdictions in the United States as the Representatives
may request and to comply with such laws so as to permit the
continuance of sales and dealings therein in such
jurisdictions for as long as may be necessary to complete the
distribution of the Securities; provided that in connection
therewith, neither the Trust nor the Company shall be
obligated to qualify as a foreign corporation or to file a
general consent to service of process;
(i) For a period of 30 days from the date of the
Final Prospectus, not to, directly or indirectly, (1) offer
for sale, sell, pledge or otherwise dispose of (or enter into
any transaction or device which is designed to, or could be
expected to, result in the disposition by any person at any
time in the future of) any trust certificate or other
securities of the Trust other than the issuance of the
Preferred Securities and Common Securities to the Company in
exchange for the Junior Subordinated Debentures and the sale
of the Preferred Securities by the Company to the
Underwriters, as contemplated by this Agreement and the Final
Prospectus, any securities that are substantially similar to
the Securities, or any securities that are convertible into,
or exchangeable or exercisable for, any of the foregoing, or
(2) enter into any swap or other derivatives transaction that
transfers to another, in whole or in part, any of the economic
benefits or risks of ownership of the Securities, whether any
such transaction described in clauses (1) and (2) of this
paragraph is to be settled by delivery of the Securities or
other securities, in cash or otherwise, in each case without
the prior written consent of Xxxxxx Brothers Inc., on behalf
of the Representatives;
(j) Prior to the Closing Date, to apply for the
listing of the Preferred Securities on the New York Stock
Exchange, Inc. and to use its best efforts to complete that
listing, subject only to official notice of issuance and
evidence of satisfactory distribution, prior to the Closing
Date;
(k) To apply the net proceeds from the sale of the
Securities as set forth in the Final Prospectus; and
(l) To take such steps as shall be necessary to
ensure that none of the Company, any subsidiary of the Company
or the Trust shall become an
13
13
"investment company" within the meaning of such term under the
Investment Company Act and the rules and regulations of the
Commission thereunder.
6. Expenses. The Company and the Trust agree to pay (a) the
costs incident to the authorization, issuance, sale and delivery of the
Securities and any taxes payable in that connection; (b) the costs incident to
the preparation, printing and filing under the Securities Act of the
Registration Statement, the Basic Prospectus, any Interim Prospectus, the Final
Prospectus and any amendments and exhibits thereto; (c) the costs of
distributing the Registration Statement as originally filed and each amendment
thereto and any post-effective amendments thereof (including, in each case,
exhibits thereto), the Basic Prospectus, any Interim Prospectus, the Final
Prospectus and any amendment or supplement to any such prospectus or any
document incorporated by reference therein, all as provided in this Agreement;
(d) the costs of producing and distributing this Agreement and any other related
documents in connection with the offering, purchase, sale and delivery of the
Securities; (e) any applicable listing or other fees; (f) the fees and expenses
of qualifying the Securities under the securities laws of the several
jurisdictions as provided in Section 5(h) hereof and of preparing, printing and
distributing a Blue Sky Memorandum (including related fees and expenses of
counsel to the Underwriters); (g) any fees charged by securities rating services
for rating the Securities; (h) the fees and expenses of the Property Trustee,
the Guarantee Trustee and the Indenture Trustee; and (i) all other costs and
expenses incident to the performance of the obligations of the Company and the
Trust under this Agreement; provided that, except as provided in this Section 6
and in Section 11 hereof, the Underwriters shall pay their own costs and
expenses, including the costs and expenses of their counsel, any transfer taxes
on the Securities which they may sell and the expenses of advertising any
offering of the Preferred Securities made by the Underwriters.
7. Conditions of Underwriters' Obligations. The respective
obligations of the Underwriters hereunder are subject to the accuracy, when made
and on the Closing Date, of the representations and warranties of the Company
and the Trust contained herein, to the performance by the Company and the Trust
of their respective obligations hereunder, and to each of the following
additional terms and conditions:
(a) The Final Prospectus shall have been timely filed
with the Commission in accordance with Section 5(a) hereof; no
stop order suspending the effectiveness of the Registration
Statement or any part thereof shall have been issued and no
proceeding for that purpose shall have been initiated or
threatened by the Commission; and any request of the
Commission for inclusion of additional information in the
Registration Statement or the Final Prospectus or otherwise
shall have been complied with.
(b) No Underwriter shall have discovered and
disclosed to the Company on or prior to the Closing Date that
the Registration Statement or the Final Prospectus or any
amendment or supplement thereto contains an untrue statement
of a fact which, in the opinion of Xxxxxxx Xxxxxxx & Xxxxxxxx,
counsel for the Underwriters, is material or omits to state a
fact which, in the opinion of such
14
14
counsel, is material and is required to be stated therein or
is necessary to make the statements therein not misleading.
(c) All corporate proceedings and other legal matters
incident to the authorization, form and validity of this
Agreement, the Indenture, the Declaration, the Guarantee
Agreement, the Securities, the Junior Subordinated Debentures,
the Registration Statement, the Basic Prospectus, any Interim
Prospectus and the Final Prospectus, and all other legal
matters relating to this Agreement and the transactions
contemplated hereby, shall be reasonably satisfactory in all
material respects to counsel for the Underwriters; and the
Company and the Trust shall have furnished to such counsel all
documents and information that they may reasonably request to
enable them to pass upon such matters.
(d) Xxxxxxx, Muething & Xxxxxxx, P.L.L. shall have
furnished to the Representatives its written opinion, as
counsel to the Company, addressed to the Underwriters and
dated the Closing Date, in form and substance satisfactory to
the Representatives, to the effect that:
(1) The Company and each of its Significant
Subsidiaries (as such term is defined in Rule 12b-2
of the Commission under the Exchange Act) have been
duly incorporated and are validly existing as
corporations or banking associations in good standing
under the laws of their respective jurisdictions of
incorporation, are duly qualified to do business and
are in good standing as foreign corporations in each
jurisdiction in which their respective ownership or
lease of property or the conduct of their respective
businesses requires such qualification (other than
those jurisdictions in which the failure to so
qualify would not have a material adverse effect on
the Company or the Company and its subsidiaries taken
as a whole), and have all power and authority
necessary to own or hold their respective properties
and conduct the businesses in which they are engaged.
(2) The Underwriting Agreement has been duly
authorized, executed and delivered by the Company and
has been duly executed and delivered by the Trust.
(3) The Indenture has been duly authorized,
executed, and delivered by the Company, has been duly
qualified under the Trust Indenture Act and, assuming
due authorization, execution and delivery thereof by
the Indenture Trustee, constitutes a valid and
legally binding obligation of the Company,
enforceable against the Company in accordance with
its terms, subject to the effects of bankruptcy,
insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or
affecting creditors' rights generally, general
equitable principles (whether considered in a
proceeding in equity or at law) and an implied
covenant of good faith and fair dealing.
(4) The Junior Subordinated Debentures have
been duly
15
15
authorized, executed and delivered by the Company,
and, assuming due authentification thereof by the
Indenture Trustee and payment and delivery as
provided herein, constitute valid and legally binding
obligations of the Company enforceable against the
Company in accordance with their terms, subject to
the effects of bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other
similar laws relating to or affecting creditors'
rights generally, general equitable principles
(whether considered in a proceeding in equity or at
law) and an implied covenant of good faith and fair
dealing, and entitled to the benefits of the
Indenture.
(5) The Guarantee Agreement has been duly
authorized, executed and delivered by the Company,
has been duly qualified under the Trust Indenture Act
and, assuming due authorization, execution and
delivery by the Guarantee Trustee, constitutes a
valid and legally binding obligation of the Company,
enforceable against the Company in accordance with
its terms, subject to the effects of bankruptcy,
insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or
affecting creditors' rights generally, general
equitable principles (whether considered in a
proceeding in equity or at law) and an implied
covenant of good faith and fair dealing.
(6) The Declaration has been duly
authorized, executed and delivered by the Company in
its capacity as sponsor thereunder and has been duly
qualified under the Trust Indenture Act.
(7) The execution, delivery and performance
of this Agreement, the Declaration, the Indenture,
the Junior Subordinated Debentures, the Preferred
Securities, the Common Securities and the Guarantee
Agreement by the Company and the Trust, as
applicable, and the consummation of the transactions
contemplated hereby and thereby, will not constitute
a material breach of, or constitute a default under,
any material indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which
the Company or any of its Significant Subsidiaries is
a party or by which the Company or any of its
Significant Subsidiaries is bound or to which any of
the property or assets of the Company or any of its
Significant Subsidiaries is subject, nor will such
actions result in any violation of the provisions of
the charter or by-laws of the Company or any of its
Significant Subsidiaries or any statute or any order,
rule or regulation of any court or governmental
agency or body having jurisdiction over the Company
or any of its Significant Subsidiaries or any of
their respective properties or assets, the effects of
which breach, violation or default would be material
to the Company and its subsidiaries taken as a whole.
(8) All of the outstanding shares of capital
stock of each
16
16
Significant Subsidiary have been duly authorized and
validly issued and are fully paid and non-assessable;
except as disclosed in the Final Prospectus, all such
shares are owned by the Company (except for any
directors' qualifying shares) free and clear of any
pledge, lien, security interest, charge, claim,
equitable right or encumbrance of any kind.
(9) No consent, approval, authorization,
order, registration or qualification of or with any
Federal or Ohio governmental agency or body or, to
such counsel's knowledge, any Federal or Ohio court
is required for the issue by the Trust of the
Preferred Securities and the Common Securities in
exchange for the Junior Subordinated Debentures, the
issuance by the Company of the Junior Subordinated
Debentures in exchange for the Common Securities and
the Preferred Securities, the sale by the Company of
the Preferred Securities, the issuance and sale of
the Guarantee by the Company and the compliance by
the Company and the Trust with all of the provisions
of this Agreement and the consummation of the
transactions contemplated by this Agreement, except
for such consents, approvals, authorizations,
registrations or qualifications as may be required
under state securities or Blue Sky laws in connection
with the purchase and distribution of the Preferred
Securities by the Underwriters.
(10) To the best of such counsel's
knowledge, there are no contracts or other documents
which are required to be described in the Final
Prospectus or filed as exhibits to the Registration
Statement by the Securities Act or by the Rules and
Regulations which have not been described or filed as
exhibits to the Registration Statements or
incorporated therein by reference as permitted by the
Rules and Regulations.
(11) To the best of such counsel's
knowledge, no contracts, agreements or understandings
exist between the Company and any person granting
such person the right to require the Company to
include any securities of the Company owned or to be
owned by such person in the securities registered
pursuant to the Registration Statement.
(12) To the best of such counsel's
knowledge, there is no pending or threatened legal or
governmental proceeding which is required to be
described in the Final Prospectus which is not
described as required.
(13) To the best of such counsel's
knowledge, the Trust is not a party to or otherwise
bound by any agreement other than those described in
the Final Prospectus.
(14) Neither the Company nor the Trust is
required to be registered as an "investment company"
under the Investment Company Act.
17
17
(15) The Company is duly registered as a
bank holding company under the BHC Act; and the
deposit accounts of the Company's bank subsidiaries
are insured by the FDIC to the fullest extent
permitted by law and the rules and regulations of the
FDIC, and to the best knowledge of such, counsel no
proceedings for the termination of such insurance are
pending or threatened.
(16) The Company and each of its
subsidiaries are in compliance with all laws
administered by and regulations of the Bank
Regulatory Authorities, other than where such
failures to comply would not have a material adverse
effect on the Company and its subsidiaries, taken as
a whole. Neither the Company nor any of its
Significant Subsidiaries is a party to any written
agreement or memorandum of understanding with, or a
party to any commitment letter or similar undertaking
to, or is subject to any order or directive by, or is
a recipient of any extraordinary supervisory letter
from, or has adopted any board resolutions at the
request of, any Bank Regulatory Authority which
materially restricts the conduct of its business, or
in any manner relates to its capital adequacy, its
credit policies or its management, nor have any of
them been advised by any Bank Regulatory Authority
that it is contemplating issuing or requesting (or is
considering the appropriateness of issuing or
requesting) any such order, decree, agreement,
memorandum of understanding, extraordinary
supervisory letter, commitment letter or similar
submission, or any such board resolutions.
(17) The Registration Statement has become
effective under the Securities Act, and no stop order
suspending the effectiveness of the Registration
Statement has been issued and, to the best knowledge
of such counsel, no proceeding for that purpose is
pending or threatened by the Commission.
(18) The Registration Statement, the Final
Prospectus, the documents incorporated by reference
in the Final Prospectus and each and any amendment or
supplement to the Registration Statement, the Final
Prospectus or any such incorporated document made by
the Company or the Trust on or prior to the Closing
Date (other than the financial statements and related
schedules contained therein, as to which such counsel
need express no opinion), comply as to form in all
material respects with the requirements of the
Securities Act or the Exchange Act, as applicable,
the Trust Indenture Act and the rules and regulations
of the Commission thereunder, when they became
effective or were filed with the Commission, as the
case may be.
18
18
(19) The statements made in the Final
Prospectus under the captions "The Trusts,"
"Description of Debt Securities," "Description of the
Trust Preferred Securities," "Description of the
Guarantees," "Summary Information Q&A," "Certain
Terms of the Capital Securities," "Certain Terms of
the Junior Subordinated Debentures," "Provident
Capital Trust III," and "Relationship among the
Capital Securities, the Junior Subordinated
Debentures and the Guarantee," insofar as they
purport to constitute summaries of the terms of the
documents referred to therein, constitute accurate
summaries of the terms of such documents in all
material respects.
(20) Upon payment for, and delivery of, the
Preferred Securities to be sold by the Company under
this Agreement in accordance with the terms hereof,
the Underwriters will acquire all of the rights of
the Company in the Preferred Securities and will also
acquire the interest of the Company in the Preferred
Securities free of any adverse claim (within the
meaning of the Uniform Commercial Code).
In rendering such opinion, such counsel may state that its
opinion is limited to matters governed by the Federal laws of the
United States of America and the laws of the State of Ohio and that (i)
as to matters concerning the Trust given in such opinion, such counsel
relied on special Delaware counsel to the Company and the Trust, (ii)
as to matters governed by New York law, such counsel has relied upon
the opinion of Xxxxxxx Xxxxxxx & Xxxxxxxx, counsel to the Underwriters,
delivered pursuant to Section 7(g) and (iii) has relied on a
certificate of Xxxx Xxxxx, Esq., general counsel to the Company, as to
certain factual matters attached to such opinion. Such counsel shall
also have furnished to the Representatives a written statement,
addressed to the Underwriters and dated the Closing Date, in form and
substance satisfactory to the Representatives, to the effect that (x)
such counsel has acted as counsel to the Company in connection with the
preparation of the Registration Statement, the Final Prospectus and the
documents incorporated by reference therein, and in the course of
preparation of those documents such counsel has participated in
conferences with representatives of the Company and its subsidiaries
(at which conferences the business, affairs and properties of the
Company and its subsidiaries were discussed) and with representatives
of Ernst & Young LLP and (y) based upon such counsel's examination of
the Registration Statement, the Final Prospectus and the documents
incorporated by reference therein, such counsel's investigations made
in connection with the preparation of the Registration Statement, the
Final Prospectus and the documents incorporated by reference therein
and such counsel's participation in the conferences referred to above,
such counsel has no reason to believe that (I) the Registration
Statement, as of its effective date and as of the date of the Annual
Report on Form 10-K of the Company for the fiscal year ended December
31, 1999 (including such Annual Report), contained any untrue statement
of a material fact or omitted to state any material fact required to be
stated therein or necessary to make the statements therein not
misleading, or that the Final Prospectus contains any untrue statement
of a material fact or omits to state any material fact required to be
stated therein or necessary to make the statements therein, in the
light of the circumstances under which
19
19
they were made, not misleading, or (II) any documents incorporated by
reference in the Final Prospectus, when they were filed with the
Commission, contained an untrue statement of a material fact or omitted
to state a material fact required to be stated therein or necessary in
order to make the statements therein, in light of the circumstances
under which they were made, not misleading.
(e) Xxxxxxx, Xxxxxxxx & Xxxxxxx, P.L.L. shall have
furnished to the Company and the Representatives its written
opinion, as special United States federal income tax counsel
to the Company and the Trust, addressed to the Company and the
Underwriters and dated the Closing Date to the effect that:
(1) The Trust will be classified as a
grantor trust for United States federal income tax
purposes and not as an association taxable as a
corporation;
(2) The Junior Subordinated Debentures will
be classified as indebtedness for United States
federal income tax purposes; and
(3) Subject to the qualifications and
limitations set forth therein, the statements set
forth in the Final Prospectus under the caption
"United States Federal Income Tax Consequences,"
insofar as they purport to constitute summaries of
matters of United States federal tax law and
regulations or legal conclusions with respect
thereto, constitute accurate summaries of the matters
described therein in all material respects.
(f) Xxxxxxxx, Xxxxxx & Finger, P.A. shall have
furnished to the Representatives its written opinion, as
special Delaware counsel to the Company and the Trust,
addressed to the Underwriters and dated the Closing Date, in
form and substance satisfactory to the Representatives, to the
effect that:
(1) The Trust has been duly created and is
validly existing in good standing as a business trust
under the Delaware Business Trust Act; and all
filings required under the laws of the State of
Delaware with respect to the creation and valid
existence of the Trust as a business trust have been
made; and under the Declaration and the Delaware
Business Trust Act, the Trust has the trust power and
authority to own property and to conduct its business
as described in the Final Prospectus and to enter
into and perform its obligations under each of this
Agreement, the Preferred Securities and the Common
Securities.
(2) The Declaration constitutes a valid and
legally binding obligation of the Company and the
Trustees, and is enforceable against the Company and
the Trustees, in accordance with its terms, subject,
as to enforcement, to the effect upon the Declaration
of (i) bankruptcy,
20
20
insolvency, moratorium, receivership, reorganization,
liquidation, fraudulent transfer and other similar
laws relating to the rights and remedies of creditors
generally, (ii) principles of equity, including
applicable law relating to fiduciary duties
(regardless of whether considered and applied in a
proceeding in equity or at law), and (iii) the effect
of applicable public policy on the enforceability of
provisions relating to indemnification or
contribution.
(3) Under the Delaware Business Trust Act
and the Declaration, the Trust has the trust power
and authority (i) to execute and deliver and to
perform its obligations under, this Agreement and
(ii) to execute and deliver the Preferred Securities
and the Common Securities.
(4) The Common Securities have been duly
authorized by the Declaration and, when issued and
delivered by the Trust to the Company in exchange for
the Junior Subordinated Debentures as described in
the Final Prospectus, will be validly issued and
(subject to the qualifications set forth in this
paragraph) fully paid undivided beneficial ownership
interests in the assets of the Trust (such counsel
may note that the holders of Common Securities will
be subject to the withholding provisions of Section
10.4 of the Declaration, will be required to make
payment or provide indemnity or security as set forth
in the Declaration and will be liable for the debts
and obligations of the Trust to the extent provided
in Section 9.1 of the Declaration); under the
Delaware Business Trust Act and the Declaration, the
issuance and sale of the Common Securities is not
subject to preemptive or other similar rights.
(5) The Preferred Securities have been duly
authorized by the Declaration and, when issued and
delivered in exchange for the Junior Subordinated
Debentures as described in the Final Prospectus, the
Preferred Securities will be duly and validly issued
and (subject to the qualifications set forth in this
paragraph) fully paid and nonassessable undivided
beneficial ownership interests in the assets of the
Trust; the holders of the Preferred Securities will
be entitled to the benefits of the Declaration and,
as beneficial owners of the Trust, will be entitled
to the same limitation of personal liability extended
to stockholders of private corporations for profit
organized under the General Corporation Law of the
State of Delaware (such counsel may note that the
Holders of Preferred Securities will be subject to
the withholding provisions of Section 10.4 of the
Declaration and will be required to make payment or
provide indemnity or security in connection with
taxes or governmental charges arising from transfers
or exchanges of certificates for Preferred Securities
and the issuance of replacement certificates for
Preferred Securities, and to provide security or
indemnity in connection with requests of or
directions to the Property Trustee to exercise its
rights and powers under the Declaration, all as set
forth in the Declaration).
21
21
(6) Under the Delaware Business Trust Act
and the Declaration, all necessary trust action has
been taken to duly authorize the execution and
delivery by the Trust of this Agreement and the
performance by the Trust of its obligations
thereunder.
(7) Under the Delaware Business Trust Act
and the Declaration, the issuance of the Preferred
Securities is not subject to preemptive rights.
(8) The issuance by the Trust of the
Preferred Securities and the Common Securities in
exchange for the Junior Subordinated Debentures, the
sale by the Company of the Preferred Securities, the
execution, delivery and performance by the Trust of
this Agreement, the consummation by the Trust of the
transactions contemplated by this Agreement, the
compliance by the Trust with its obligations
thereunder and the performance by the Company, as
sponsor, of its obligations under the Declaration (A)
do not violate (i) any of the provisions of the
Certificate of Trust or the Declaration or (ii) any
applicable Delaware law or administrative regulation
and do not require any consent, approval, license,
authorization or validation of, or filing or
registration with, any Delaware legislative,
administrative or regulatory body under the laws or
administrative regulations of the State of Delaware
(other that as may be required under the securities
or blue sky laws of the state of Delaware, as to
which such counsel need express no opinion) and (B)
do not require any consent, approval, license,
authorization or validation of, or filing or
registration with, any Delaware legislative,
administrative or regulatory body under the laws or
administrative regulations of the State of Delaware
(except that such counsel need express no opinion
with respect to the securities laws of the State of
Delaware).
(9) Assuming that the Trust derives no
income from or connected with services provided
within the State of Delaware and has no assets,
activities (other than having a Delaware Trustee as
required by the Delaware Business Trust Act and the
filing of documents with the Secretary of State of
the State of Delaware) or employees in the State of
Delaware, the holders of the Preferred Securities
(other than those holders of Preferred Securities who
reside or are domiciled in the State of Delaware)
will have no liability for income taxes imposed by
the State of Delaware solely as a result of their
participation in the Trust, and the Trust will not be
liable for any income tax imposed by the State of
Delaware.
(g) The Representatives shall have received from
Xxxxxxx Xxxxxxx & Xxxxxxxx, counsel for the Underwriters, such
opinion or opinions, dated the Closing Date, with respect to
the issuance and sale of the Securities, the Registration
Statement, the Final Prospectus and other related matters as
the Representatives may reasonably require, and the Company
shall have furnished to such counsel such documents as they
reasonably request for the purpose of enabling them to pass
upon such matters.
22
22
(h) At the time of execution of this Agreement, the
Representatives shall have received from Ernst & Young, LLP a
letter, in form and substance satisfactory to the
Representatives, addressed to the Underwriters and dated the
date hereof (i) confirming that they are independent public
accountants within the meaning of the Securities Act and are
in compliance with the applicable requirements relating to the
qualification of accountants under Rule 2-01 of Regulation S-X
of the Commission, (ii) stating, as of the date hereof (or,
with respect to matters involving changes or developments
since the respective dates as of which specified financial
information is given in the Final Prospectus, as of a date not
more than five days prior to the date hereof), the conclusions
and findings of such firm with respect to the financial
information and other matters ordinarily covered by
accountants' "comfort letters" to underwriters in connection
with registered public offerings.
(i) With respect to the letter of Ernst & Young, LLP
referred to in the preceding paragraph and delivered to the
Representatives concurrently with the execution of this
Agreement (the "initial letter"), the Company shall have
furnished to the Representatives a letter (the "bring-down
letter") of such accountants, addressed to the Underwriters
and dated the Closing Date (i) confirming that they are
independent public accountants within the meaning of the
Securities Act and are in compliance with the applicable
requirements relating to the qualification of accountants
under Rule 2-01 of Regulation S-X of the Commission, (ii)
stating, as of the date of such bring-down letter (or, with
respect to matters involving changes or developments since the
respective dates as of which specified financial information
is given in the Final Prospectus, as of a date not more than
five days prior to the date of the bring-down letter), the
conclusions and findings of such firm with respect to the
financial information and other matters covered by the initial
letter and (iii) confirming in all material respects the
conclusions and findings set forth in the initial letter.
(j) The Company and the Trust shall each have
furnished to the Representatives a certificate, dated the
Closing Date, of its Chairman of the Board, its President or
an Executive Vice President and its chief financial officer
stating that:
(A) The representations, warranties and
agreements of the Company and the Trust in Section 1
hereof are true and correct as of the Closing Date;
the Company and the Trust have complied with all
their agreements contained herein and the conditions
set forth in paragraphs (a) and (k) of this Section 7
have been fulfilled, and;
(B) They have carefully examined the
Registration Statement and the Final Prospectus and,
in their opinion (i) the Xxxxxxxxxxxx Xxxxxxxxx,
00
00
as of its effective date, and the Final Prospectus,
as of its date and as of the Closing Date, did not
include any untrue statement of a material fact and
did not omit to state a material fact required to be
stated therein or necessary to make the statements
therein, in light of the circumstances in which they
were made, not misleading, and (ii) since such dates,
no event has occurred which should have been set
forth in a supplement or amendment to the
Registration Statement or the Final Prospectus.
(k)(i) Neither the Company nor any of its
subsidiaries shall have sustained, since the date of the
latest audited financial statements included or incorporated
by reference in the Final Prospectus, any loss or interference
with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any
labor dispute or court or governmental action, order or
decree, otherwise than as set forth or contemplated in the
Final Prospectus and (ii) since such date there shall not have
been any change in the capital stock or long-term debt of the
Company or The Provident Bank or any change, or any
development involving a prospective change, in or affecting
the general affairs, management, financial position,
stockholders' equity or results of operations of the Company
and its subsidiaries taken as a whole, otherwise than as set
forth or contemplated in the Final Prospectus, the effect of
which, in any such case described in clause (i) or (ii) of
this paragraph, is, in the reasonable judgment of the
Representatives, so material and adverse as to make it
impracticable or inadvisable to proceed with the public
offering or the delivery of the Securities on the terms and in
the manner contemplated in the Final Prospectus.
(l) Subsequent to the execution and delivery of this
Agreement (i) no downgrading shall have occurred in the rating
accorded the Company's debt securities or preferred stock by
any "nationally recognized statistical rating organization,"
as that term is defined by the Commission for purposes of Rule
436(g)(2) of the Rules and Regulations; and (ii) no such
organization shall have publicly announced that it has under
surveillance or review, with possible negative implications,
its rating of any of the Company's debt securities or
preferred stock.
(m) Subsequent to the execution and delivery of this
Agreement there shall not have occurred any of the following:
(i) trading in securities generally on the New York Stock
Exchange or in the over-the-counter market, or trading in any
securities of the Company on any exchange or in the
over-the-counter market, shall have been suspended or minimum
prices shall have been established on the New York Stock
Exchange or such market by the Commission, by such exchange or
by any other regulatory body or governmental authority having
jurisdiction, (ii) a banking moratorium shall have been
declared by Federal or state authorities, (iii) the United
States shall have become engaged in hostilities, there shall
have been an escalation in hostilities involving the United
States or there shall have been a declaration of a national
emergency or war by the United States or (iv) there shall have
occurred such a material adverse change in general economic,
political or financial conditions (or the effect of
international conditions on the
24
24
financial markets in the United States shall be such) as to
make it, in the judgment of a majority in interest of the
several Underwriters, impracticable or inadvisable to proceed
with the public offering or delivery of the Securities on the
terms and in the manner contemplated in the Final Prospectus.
(n) The New York Stock Exchange shall have approved
the Preferred Securities for listing, subject only to official
notice of issuance and evidence of satisfactory distribution.
All opinions, letters, evidence and certificates mentioned
above or elsewhere in this Agreement shall be deemed to be in compliance with
the provisions hereof only if they are in form and substance reasonably
satisfactory to counsel for the Underwriters.
8. Indemnification and Contribution.
(a) The Company and the Trust, jointly and severally,
shall indemnify and hold harmless each Underwriter, its
officers and employees and each person, if any, who controls
any Underwriter within the meaning of the Securities Act, from
and against any loss, claim, damage or liability, joint or
several, or any action in respect thereof (including, but not
limited to, any loss, claim, damage, liability or action
relating to purchases and sales of the Securities), to which
that Underwriter, officer, employee or controlling person may
become subject, under the Securities Act or otherwise, insofar
as such loss, claim, damage, liability or action arises out
of, or is based upon, (i) any untrue statement or alleged
untrue statement of a material fact contained (A) in the Basic
Prospectus, any Interim Prospectus, the Registration Statement
or the Final Prospectus, or in any amendment or supplement
thereto, or (B) in any blue sky application or other document
prepared or executed by the Company or the Trust (or based
upon any written information furnished by the Company or the
Trust) specifically for the purpose of qualifying any or all
of the Securities under the securities laws of any state or
other jurisdiction (any such application, document or
information being hereinafter called a "Blue Sky
Application"), or (ii) the omission or alleged omission to
state in the Basic Prospectus, any Interim Prospectus, the
Registration Statement or the Final Prospectus, or in any
amendment or supplement thereto, or in any Blue Sky
Application any material fact required to be stated therein or
necessary to make the statements therein not misleading or the
offering contemplated hereby, and which is included as part of
or referred to in any loss, claim, damage, liability or action
arising out of or based upon matters covered by clause (i) or
(ii) above and shall reimburse each Underwriter and each such
officer, employee or controlling person promptly upon demand
for any legal or other expenses reasonably incurred by that
Underwriter, officer, employee or controlling person in
connection with investigating or defending or preparing to
defend against any such loss, claim, damage, liability or
action as such expenses are incurred; provided, however, that
the Company and the Trust shall not be liable in any such case
to the extent that
25
25
any such loss, claim, damage, liability or action arises out
of, or is based upon, any untrue statement or alleged untrue
statement or omission or alleged omission made in the Basic
Prospectus, any Interim Prospectus, the Registration Statement
or the Final Prospectus, or in any such amendment or
supplement, or in any Blue Sky Application in reliance upon
and in conformity with written information concerning such
Underwriter furnished to the Company through the
Representatives by or on behalf of such Underwriter
specifically for inclusion therein which information consists
solely of the information specified in Section 8(e) hereof.
The foregoing indemnity agreement is in addition to any
liability which the Company or the Trust may otherwise have to
any Underwriter or to any officer, employee or controlling
person of that Underwriter.
(b) Each Underwriter, severally and not jointly,
shall indemnify and hold harmless the Company and the Trust,
their officers and employees, each of their directors and each
person, if any, who controls the Company within the meaning of
the Securities Act, from and against any loss, claim, damage
or liability, joint or several, or any action in respect
thereof, to which the Company or the Trust or any such
director, officer or controlling person may become subject,
under the Securities Act or otherwise, insofar as such loss,
claim, damage, liability or action arises out of, or is based
upon, (i) any untrue statement or alleged untrue statement of
a material fact contained (A) in the Basic Prospectus, any
Interim Prospectus, the Registration Statement or the Final
Prospectus, or in any amendment or supplement thereto, or (B)
in any Blue Sky Application or (ii) the omission or alleged
omission to state in the Basic Prospectus, any Interim
Prospectus, the Registration Statement or the Final
Prospectus, or in any amendment or supplement thereto, or in
any Blue Sky Application any material fact required to be
stated therein or necessary to make the statements therein not
misleading, but in each case only to the extent that the
untrue statement or alleged untrue statement or omission or
alleged omission was made in reliance upon and in conformity
with written information concerning such Underwriter furnished
to the Company and the Trust through the Representatives by or
on behalf of that Underwriter specifically for inclusion
therein, and shall reimburse the Company and the Trust and any
such director, officer or controlling person for any legal or
other expenses reasonably incurred by the Company or the Trust
or any such director, officer or controlling person in
connection with investigating or defending or preparing to
defend against any such loss, claim, damage, liability or
action as such expenses are incurred. The foregoing indemnity
agreement is in addition to any liability which any
Underwriter may otherwise have to the Company and the Trust or
any such director, officer, employee or controlling person.
(c) Promptly after receipt by an indemnified party
under this Section 8 of notice of any claim or the
commencement of any action, the indemnified party shall, if a
claim in respect thereof is to be made against the
indemnifying party under this Section 8, notify the
indemnifying party in writing of the claim or the commencement
of that action; provided, however, that the failure to notify
the indemnifying party shall not relieve it from any liability
which it may have under
26
26
this Section 8 except to the extent it has been materially
prejudiced by such failure and, provided further, that the
failure to notify the indemnifying party shall not relieve it
from any liability which it may have to an indemnified party
otherwise than under this Section 8. If any such claim or
action shall be brought against an indemnified party, and it
shall notify the indemnifying party thereof, the indemnifying
party shall be entitled to participate therein and, to the
extent that it wishes, jointly with any other similarly
notified indemnifying party, to assume the defense thereof
with counsel satisfactory to the indemnified party. After
notice from the indemnifying party to the indemnified party of
its election to assume the defense of such claim or action,
the indemnifying party shall not be liable to the indemnified
party under this Section 8 for any legal or other expenses
subsequently incurred by the indemnified party in connection
with the defense thereof other than reasonable costs of
investigation; provided, however, that the Representatives
shall have the right to employ counsel to represent jointly
the Representatives and those other Underwriters and their
respective officers, employees and controlling persons who may
be subject to liability arising out of any claim in respect of
which indemnity may be sought by the Underwriters against the
Company under this Section 8 if, in the reasonable judgement
of the Representatives, it is advisable for the
Representatives and those Underwriters, officers, employees
and controlling persons to be jointly represented by separate
counsel, and in that event the fees and expenses of such
separate counsel shall be paid by the Company. Each
indemnified party, as a condition of the indemnity agreements
contained in Sections 8(a) and 8(b), shall use its best
efforts to cooperate with the indemnifying party in the
defense of any such action or claim. No indemnifying party
shall (i) without the prior written consent of the indemnified
parties (which consent shall not be unreasonably withheld),
settle or compromise or consent to the entry of any judgment
with respect to any pending or threatened claim, action, suit
or proceeding in respect of which indemnification or
contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such
claim or action) unless such settlement, compromise or consent
includes an unconditional release of each indemnified party
from all liability arising out of such claim, action, suit or
proceeding, or (ii) be liable for any settlement of any such
action effected without its written consent (which consent
shall not be unreasonably withheld), but if settled with the
written consent of the indemnifying party or if there be a
final judgment of the plaintiff in any such action, the
indemnifying party agrees to indemnify and hold harmless any
indemnified party from and against any loss or liability by
reason of such settlement or judgment.
(d) If the indemnification provided for in this
Section 8 shall for any reason be unavailable to or
insufficient to hold harmless an indemnified party under
Section 8(a) or 8(b) in respect of any loss, claim, damage or
liability, or any action in respect thereof, referred to
therein, then each indemnifying party shall, in lieu of
indemnifying such indemnified party, contribute to the amount
paid or payable by such indemnified party as a result of such
loss, claim, damage or liability, or action in respect
thereof, (i) in such proportion as shall be appropriate to
reflect the relative benefits received by the Company and the
Trust on the one
27
27
hand and the Underwriters on the other from the offering of
the Securities or (ii) if the allocation provided by clause
(i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) above but also the relative
fault of the Company and the Trust on the one hand and the
Underwriters on the other with respect to the statements or
omissions which resulted in such loss, claim, damage or
liability, or action in respect thereof, as well as any other
relevant equitable considerations. The relative benefits
received by the Company and the Trust on the one hand and the
Underwriters on the other with respect to such offering shall
be deemed to be in the same proportion as the total net
proceeds from the offering of the Securities purchased under
this Agreement (before deducting expenses) received by the
Company and the Trust, on the one hand, and the total
underwriting discounts and commissions received by the
Underwriters with respect to the shares of the Securities
purchased under this Agreement, on the other hand, bear to the
total gross proceeds from the offering of the shares of the
Securities under this Agreement, in each case as set forth in
the table on the cover page of the Final Prospectus. The
relative fault shall be determined by reference to whether the
untrue or alleged untrue statement of a material fact or
omission or alleged omission to state a material fact relates
to information supplied by the Company and the Trust or the
Underwriters the intent of the parties and their relative
knowledge, access to information and opportunity to correct or
prevent such statement or omission. For purposes of the
preceding two sentences, the net proceeds deemed to be
received by the Company shall be deemed to be also for the
benefit of the Trust and information supplied by the Company
shall also be deemed to have been supplied by the Trust. The
Company, the Trust and the Underwriters agree that it would
not be just and equitable if contributions pursuant to this
Section 8(d) were to be determined by pro rata allocation
(even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not
take into account the equitable considerations referred to
herein. The amount paid or payable by an indemnified party as
a result of the loss, claim, damage or liability, or action in
respect thereof, referred to above in this Section 8(d) shall
be deemed to include, for purposes of this Section 8(d), any
legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or
defending any such action or claim. Notwithstanding the
provisions of this Section 8(d), no Underwriter shall be
required to contribute any amount in excess of the amount by
which the total price at which the Securities underwritten by
it and distributed to the public was offered to the public
exceeds the amount of any damages which such Underwriter has
otherwise paid or become liable to pay by reason of any untrue
or alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be
entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. The Underwriters'
obligations to contribute as provided in this Section 8(d) are
several in proportion to their respective underwriting
obligations and not joint.
28
28
(e) The Underwriters severally confirm and the
Company and the Trust acknowledge that the statements with
respect to the public offering of the Securities by the
Underwriters set forth on the cover page of and the concession
and reallowance figures and the information in the first
paragraph appearing under the caption
"Underwriting--Commission and Discounts," and the textual
paragraphs appearing under the caption "Underwriting --
Confirmation to Discretionary Accounts" and " -- Price
Stabilization and Short Positions" in the Final Prospectus
constitute the only information concerning such Underwriters
furnished in writing to the Company by or on behalf of the
Underwriters specifically for inclusion in the Registration
Statement and the Final Prospectus.
9. Defaulting Underwriters. If, on the Closing Date, any
Underwriter defaults in the performance of its obligations under this Agreement,
the remaining non-defaulting Underwriters shall be obligated to purchase the
Securities which the defaulting Underwriter agreed but failed to purchase on the
Closing Date in the respective proportions which the aggregate liquidation
amount of Preferred Securities set opposite the name of each remaining
non-defaulting Underwriter in Schedule 1 hereto bears to the total aggregate
liquidation amount of Preferred Securities set opposite the names of all the
remaining non-defaulting Underwriters in Schedule 1 hereto; provided, however,
that the remaining non-defaulting Underwriters shall not be obligated to
purchase any of the Securities on the Closing Date if the total Securities which
the defaulting Underwriter or Underwriters agreed but failed to purchase on such
date exceeds 9.09% of the total Securities to be purchased on the Closing Date,
and any remaining non-defaulting Underwriter shall not be obligated to purchase
more than 110% of the Securities which it agreed to purchase on the Closing Date
pursuant to the terms of Section 2. If the foregoing maximums are exceeded, the
remaining non-defaulting Underwriters, or those other underwriters satisfactory
to the Representatives who so agree, shall have the right, but shall not be
obligated, to purchase, in such proportion as may be agreed upon among them, all
the Securities to be purchased on the Closing Date. If the remaining
Underwriters or other underwriters satisfactory to the Representatives do not
elect to purchase the Securities which the defaulting Underwriter or
Underwriters agreed but failed to purchase on the Closing Date, this Agreement
shall terminate without liability on the part of any non-defaulting Underwriter
or the Company and the Trust, except that the Company and the Trust will
continue to be liable for the payment of expenses to the extent set forth in
Sections 6 and 11 hereof. As used in this Agreement, the term "Underwriter"
includes, for all purposes of this Agreement unless the context requires
otherwise, any party not listed in Schedule 1 hereto who, pursuant to this
Section 9, purchases the Securities which a defaulting Underwriter agreed but
failed to purchase.
Nothing contained herein shall relieve a defaulting
Underwriter of any liability it may have to the Company or the Trust for damages
caused by its default. If other underwriters are obligated or agree to purchase
the Securities of a defaulting or withdrawing Underwriter, either the
Representatives, the Company or the Trust may postpone the Closing Date for up
to seven full business days in order to effect any changes that in the opinion
of counsel for the
29
29
Company or counsel for the Underwriters may be necessary in the Registration
Statement, the Final Prospectus or in any other document or arrangement.
10. Termination. The obligations of the Underwriters hereunder
may be terminated by the Representatives by notice given to and received by the
Company and the Trust prior to delivery of and payment for the Preferred
Securities if, prior to that time, any of the events described in Sections 7(k),
7(l) or 7(m) shall have occurred or if the Underwriters shall decline to
purchase the Securities for any reason permitted under this Agreement.
11. Reimbursement of Underwriters' Expenses. If (a) the Trust
shall fail to tender the Securities for delivery to the Underwriters for any
reason or (b) the Underwriters shall decline to purchase the Securities for any
reason permitted by this Agreement, the Company and the Trust shall reimburse
the Underwriters for all out-of-pocket expenses (including fees and
disbursements of counsel) incurred by the Underwriters in connection with this
Agreement and the proposed purchase of the Securities, and upon demand the
Company and the Trust shall pay the full amount thereof to the Representatives.
If this Agreement is terminated pursuant to Section 9 by reason of the default
of one or more Underwriters, neither the Company nor the Trust shall be
obligated to reimburse any defaulting Underwriter on account of those expenses.
12. Notices, etc. All statements, requests, notices and
agreements hereunder shall be in writing, and:
(a) if to the Underwriters, shall be delivered or
sent by mail, telex or facsimile transmission to Xxxxxx
Brothers Inc., 0 Xxxxx Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Debt Capital Markets (FIG Group)
(Fax:000-000-0000);
(b) if to the Company or to the Trust, shall be
delivered or sent by mail, telex or facsimile transmission to
the address of the Company set forth in the Registration
Statement, Attention: General Counsel (Fax: 000-000-0000);
All notices to an Underwriter pursuant to Section 8(c) shall
be delivered or sent by mail, telex or facsimile transmission
to such Underwriter at its address set forth in its acceptance
telex to the Representatives, which address will be supplied
to any other party hereto by the Representatives upon request.
Any such statements, requests, notices or agreements shall
take effect at the time of receipt thereof. The Company and
the Trust shall be entitled to act and rely upon any request,
consent, notice or agreement given or made on behalf of the
Underwriters by Xxxxxx Brothers Inc.
13. Persons Entitled to Benefit of Agreement. This Agreement
shall inure to the benefit of and be binding upon the Underwriters, the Company
and the Trust and their respective successors. This Agreement and the terms and
provisions hereof are for the sole benefit of only those persons, except that
(a) the representations, warranties, indemnities and agreements of the Company
and the Trust contained in this Agreement shall also be deemed to be for the
benefit of the person or persons, if any, who control any Underwriter within the
meaning of Section 15 of the Securities Act and (b) the indemnity agreement of
the Underwriters contained in Section 8(b)
30
30
of this Agreement shall be deemed to be for the benefit of directors of the
Company, officers of the Company who have signed the Registration Statement and
any person controlling the Company within the meaning of Section 15 of the
Securities Act. Nothing in this Agreement is intended or shall be construed to
give any person, other than the persons referred to in this Section 13, any
legal or equitable right, remedy or claim under or in respect of this Agreement
or any provision contained herein.
14. Survival. The respective indemnities, representations,
warranties and agreements of the Company and the Trust and the Underwriters
contained in this Agreement or made by or on behalf of them, respectively,
pursuant to this Agreement, shall survive the delivery of and payment for the
Securities and shall remain in full force and effect, regardless of any
investigation made by or on behalf of any of them or any person controlling any
of them.
15. Definition of the Terms "Business Day" and "Subsidiary".
For purposes of this Agreement, (a) "business day" means each Monday, Tuesday,
Wednesday, Thursday or Friday which is not a day on which banking institutions
in New York are generally authorized or obligated by law or executive order to
close and (b) "subsidiary" has the meaning set forth in Rule 405 of the Rules
and Regulations.
16. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF NEW YORK.
17. Counterparts. This Agreement may be executed in one or
more counterparts and, if executed in more than one counterpart, the executed
counterparts shall each be deemed to be an original but all such counterparts
shall together constitute one and the same instrument.
18. Headings. The headings herein are inserted for convenience
of reference only and are not intended to be part of, or to affect the meaning
or interpretation of, this Agreement.
[The remainder of page intentionally left blank; the signature
page follows.]
31
31
If the foregoing correctly sets forth the agreement among the
Company and the Trust and the Underwriters, please indicate your acceptance in
the space provided for that purpose below.
Very truly yours,
PROVIDENT FINANCIAL GROUP, INC.
By:
--------------------------------------
Name:
Title:
PROVIDENT CAPITAL TRUST III
By: Provident Financial Group, Inc., as Sponsor
By:
--------------------------------------
Name:
Title:
Accepted:
XXXXXX BROTHERS INC.
X.X. XXXXXXX & SONS, INC.
PRUDENTIAL SECURITIES INCORPORATED
MCDONALD INVESTMENTS INC.
X.X. XXXXXX SECURITIES INC.
XXXXXXXX INC.
For themselves and as Representatives
of the several Underwriters named
in Schedule 1 hereto
By XXXXXX BROTHERS INC.
By:
----------------------------------------
Authorized Representative
32
SCHEDULE 1
PROVIDENT CAPITAL TRUST III
$100,000,000 10 1/4% TRUST
PREFERRED SECURITIES DUE 2030 LIQUIDATION AMOUNT
-------------------------------------------------------------------------------------------
Xxxxxx Brothers Inc..................................................... $ 20,625,000
X.X. Xxxxxxx & Sons, Inc................................................ 20,375,000
Prudential Securities Incorporated...................................... 20,375,000
McDonald Investments Inc................................................ 6,875,000
X.X. Xxxxxx Securities Inc.............................................. 6,875,000
Xxxxxxxx Inc............................................................ 6,875,000
ABN AMRO Incorporated................................................... 1,250,000
Bear, Xxxxxxx & Co. Inc. ............................................... 1,250,000
Xxxx Xxxxxxxx Incorporated.............................................. 1,250,000
Deutsche Bank Securities Inc.. ......................................... 1,250,000
First Union Securities, Inc.. .......................................... 1,250,000
Xxxx Xxxxx Xxxx Xxxxxx, Inc............................................. 1,250,000
U.S. Bancorp Xxxxx Xxxxxxx Inc. ........................................ 1,250,000
Wachovia Securities, Inc. .............................................. 1,250,000
Advest, Inc. ........................................................... 500,000
Xxxxxx X. Xxxxx & Co. Incorporated...................................... 500,000
BB&T Capital Markets, a Division of Xxxxx & Xxxxxxxxxxxx................ 500,000
Xxxxxxxxx & Co. LLC..................................................... 500,000
Xxxxxxxxxx & Co. Inc. .................................................. 500,000
Gibraltar Securities. .................................................. 500,000
Gruntal & Co., L.L.C.................................................... 500,000
J.J.B. Xxxxxxxx, X.X. Xxxxx, Inc........................................ 500,000
Xxxxxx Xxxxxxxxxx Xxxxx LLC............................................. 500,000
XX Xxxxxxx Securities, Inc.............................................. 500,000
Mesirow Financial, Inc.................................................. 500,000
Xxxxxx Xxxxxx & Company, Inc............................................ 500,000
Xxxxxx/Hunter Incorporated.............................................. 500,000
The Xxxxxxxx-Xxxxxxxx Company, LLC...................................... 500,000
TD Securities (USA) Inc................................................. 500,000
Xxxxxx Xxxxxxx Incorporated............................................. 500,000
-------------------------------------------------------------------------------------------
TOTAL..... $100,000,000
