EXHIBIT 10.14
[Letterhead of First Leesport Bancorp, Inc.]
____________, 2001
[Standby Purchaser]
[Address]
Dear [Standby Purchaser]:
This letter confirms our agreement with respect to the intention of First
Leesport Bancorp, Inc., a Pennsylvania corporation (the "Company"), to raise
additional capital through a rights offering, with oversubscription privileges,
of up to __________ shares (the "Underlying Shares") of the Company's common
stock, par value $5.00 per share (the "Common Stock"), to its shareholders of
record as of date to be determined ("Rights Offering") with the participation of
standby purchasers for any unsubscribed shares in the Rights Offering. (The
Rights Offering and the offering to standby purchasers are hereinafter referred
to as the "Offering.") Capitalized terms used herein and not defined herein
shall have the meanings set forth in the Prospectus (as hereinafter defined.)
A REGISTRATION STATEMENT ON FORM S-1 (THE "REGISTRATION STATEMENT")
RELATING TO THE COMPANY'S COMMON STOCK WAS FILED WITH THE SECURITIES AND
EXCHANGE COMMISSION ("SEC") ON AUGUST 24, 2001. NO OFFER TO BUY SECURITIES CAN
BE ACCEPTED AND NO PART OF THE PURCHASE PRICE CAN BE RECEIVED UNTIL THE
REGISTRATION STATEMENT HAS BECOME EFFECTIVE, AND ANY SUCH OFFER MAY BE WITHDRAWN
OR REVOKED, WITHOUT OBLIGATION OR COMMITMENT OF ANY KIND, AT ANY TIME PRIOR TO
NOTICE OF ITS ACCEPTANCE GIVEN AFTER THE EFFECTIVE DATE.
1. Purchase and Sale of Unsubscribed Shares.
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(a) Subject to the terms and conditions and in reliance upon the
representations and warranties herein set forth, the Company agrees to issue and
sell to you as a standby purchaser (the "Standby Purchaser") and the Standby
Purchaser agrees to purchase from the Company at the subscription price set
forth in
the Prospectus (the "Subscription Price") up to ___________ shares of Common
Stock (the "Standby Shares") which remain available for issuance in accordance
with the Rights Offering after the issuance of all shares of Common Stock
validly subscribed for through the exercise of rights (the "Rights"), including
the exercise of all oversubscription privileges, in the Rights Offering (such
remaining shares being hereinafter referred to as the "Unsubscribed Shares").
(b) The Standby Purchaser and the Company acknowledge and agree that the
Company has entered into, or contemplates entering into, one or more other
Standby Purchase Agreements with certain other parties (collectively, the
"Standby Purchasers") on terms substantially similar to this Agreement, except
that they may provide for the purchase of a different maximum number of Standby
Shares in Section 1(a) and a different number of Minimum Shares (as defined in
Section 1(c)). The Unsubscribed Shares available for issuance to Standby
Purchasers and any additional shares which the Company shall have elected to
issue shall be allocated (to the extent any allocation thereof is necessary) as
nearly as possible on a pro rata basis among the Standby Purchasers based upon
the number of Standby Shares subscribed for by each such Standby Purchaser,
after giving effect to the limitation set forth in Section 2(a).
(c) Subject to the terms, conditions and limitations herein set forth, in
the event there is not a sufficient number of Unsubscribed Shares remaining upon
completion of the Rights Offering (including the exercise of all
oversubscription privileges) to allow you to purchase at least ___________
shares pursuant to Section 1(a) (the "Minimum Shares") subject to the maximum
number of shares of Common Stock being offered for sale in the Offering, as set
forth in the Registration Statement, the Company agrees to issue and sell to the
Standby Purchaser, and the Standby Purchaser agrees to purchase from the
Company, at the Subscription Price and otherwise in accordance with this
Agreement, sufficient additional shares so that the Standby Purchaser shall have
purchased the Minimum Shares provided that the Company may need to replace the
Minimum Shares committed to by the Standby Purchaser (on a pro rata basis with
all other Standby Purchasers) in order to ensure that the Company does not issue
any shares which exceed the minimum number of shares of Common Stock being
offered for sale in the Offering. The shares to be issued and sold to the
Standby Purchaser (other than the Unsubscribed Shares) in order that the Standby
Purchaser may purchase the Minimum Shares are hereinafter referred to as the
"Additional Shares."
2. Limitations on Issuance of Standby Shares.
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(a) Maximum Holding. The Standby Purchaser acknowledges and agrees that,
notwithstanding anything to the contrary herein contained or implied, the
Company will not issue to the Standby
Purchaser shares of Common Stock in an amount which, when aggregated with other
shares of Common Stock owned or controlled by the Standby Purchaser, would
exceed 9.9% of the total issued and outstanding shares of Common Stock upon
completion of the Offering, including shares issued pursuant to any Standby
Purchase Agreements.
(b) Failure to Obtain Regulatory Approval. The Standby Purchaser hereby
acknowledges and agrees that the Company may decline to issue shares of Common
Stock to the Standby Purchaser hereunder if, in the opinion of the Company, the
Standby Purchaser is required to obtain prior clearance or approval of such
purchase from any state or federal bank regulatory authority and if such
approval or clearance has not been obtained or if satisfactory evidence thereof
has not been presented to the Company prior to the expiration of the Offering.
3. The Closing.
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As soon as practicable following its determination of the number of
Unsubscribed Shares, the Company shall notify the Standby Purchaser of the
number of Standby Shares, if any, to be purchased by the Standby Purchaser
pursuant to Section 1(a) and the number of Additional Shares, if any, to be
purchased by the Standby Purchaser pursuant to Section 1(c). The delivery of and
payment for the Standby Shares and the Additional Shares shall take place at the
offices of Xxxxxx Xxxx & Xxxxxx LLP, Vienna, Virginia at 10:00 a.m., Eastern
time, immediately after the closing of the sale of shares of Common Stock
pursuant to the Rights Offering, such time and date to be not more than five (5)
business days after the foregoing notification and to be specified therein (such
time and date being referred to as the "Closing Time," the date of the Closing
Time being referred to as the "Closing Date" and the consummation of the
transaction being referred to as the "Closing").
4. Delivery of Standby Shares and Additional Shares.
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At the Closing, the Standby Shares and Additional Shares to be purchased by
the Standby Purchaser hereunder, registered in the name of the Standby Purchaser
or its nominee(s), as the Standby Purchaser may specify in writing at least
three (3) days prior to the Closing Date, shall be delivered by or on behalf of
the Company to the Standby Purchaser, for the Standby Purchaser's account,
against delivery by the Standby Purchaser of the Subscription Price therefor in
immediately available funds in the form of one or more federal funds checks or a
wire transfer to an account designated by the Company.
5. Representations and Warranties.
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The Company and the Standby Purchaser hereby confirm their agreement as
follows:
(a) The Company represents and warrants to, and covenants with, the Standby
Purchaser as follows:
(i) The Company has filed a Registration Statement on Form S-2 with
the SEC and all amendments thereto. Such Registration Statement as amended at
the time it becomes effective (the "Effective Date"), including all exhibits and
all documents incorporated therein by reference, is herein called the
"Registration Statement." The prospectus filed with the SEC pursuant to the
Securities Act of 1933, as amended (the "Securities Act"), and the regulations
promulgated thereunder ("Regulations") and which constitutes a part of the
Registration Statement is herein called the "Prospectus."
(ii) The Underlying Shares, the Standby Shares and the Additional
Shares have been duly authorized by the Company, and when issued and delivered
by the Company against payment therefor, will be duly and validly issued, fully
paid and non-assessable. The Rights have been duly authorized by the Company,
and when issued and delivered by the Company, will constitute valid and legally
binding obligations of the Company, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to general equity
principles.
(iii) The Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the Commonwealth of
Pennsylvania, with corporate power and authority to perform its obligations
under this Agreement.
(iv) The execution, delivery and performance of this Agreement by the
Company and the consummation by the Company of the transactions contemplated
hereby have been duly authorized by all necessary corporate action of the
Company and this Agreement, when duly executed and delivered by the Standby
Purchaser, will constitute a valid and legally binding agreement of the Company
enforceable in accordance with its terms, except as may be limited by
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting creditors' rights
and to general equity principles.
(v) On the Effective Date and at the time when the Registration
Statement was first filed with the SEC pursuant to the Securities Act and the
Regulations, the Registration Statement and the Prospectus complied and will
comply in all material respects with the requirements of the Securities Act and
the Regulations and on the Effective Date neither the Registration Statement nor
the Prospectus will 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 the light of the circumstances under which they were
made, not misleading; except that the foregoing does not apply to statements or
omissions in the Registration Statement or the Prospectus made in reliance upon
and in conformity with information furnished by the Standby Purchaser to the
Company expressly for use therein.
(vi) Neither the Company nor any of its direct or indirect
subsidiaries ("Subsidiaries") is in violation of its charter, certificate of
trust or by-laws or in default under any agreement, indenture or instrument to
which the Company or any of its Subsidiaries is a party, the effect of which
violation or default would be material to the business, properties, financial
condition or results of operations of the Company and its Subsidiaries, taken as
a whole, and the execution, delivery and performance of this Agreement by the
Company and the consummation of the transactions contemplated hereby will not
conflict with, or constitute a breach of, or default under, or result in the
creation or imposition of any lien, charge or encumbrance upon any of the assets
of the Company or its Subsidiaries pursuant to the terms of any agreement,
indenture or instrument to which the Company or any of its Subsidiaries is a
party, or result in a violation of the charter, certificate of trust or by-laws
of the Company or any of its Subsidiaries or any order, rule or regulation of
any court or governmental agency having jurisdiction over the Company, any of
its Subsidiaries or any of their property; and, except as required by the
Regulations, the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and applicable state securities law, no consent, authorization or order
of, or filing or registration with, any court or governmental agency is required
for the execution, delivery and performance of this Agreement.
(vii) The Company has applied to have the shares of Common Stock
approved for quotation on the Nasdaq National Market and will use its best
efforts to obtain such approval.
(b) The Standby Purchaser represents and warrants to, and covenants with,
the Company as follows:
(i) (A) If the Standby Purchaser is an individual, he or she has full
power and authority to perform his or her obligations under this Agreement.
(B) If the Standby Purchaser is a corporation, the Standby
Purchaser is a corporation duly incorporated, validly existing and in good
standing under the laws of its jurisdiction of incorporation, with corporate
power and authority to perform its obligations under this Agreement.
(C) If the Standby Purchaser is a trust, the Trustee has been
duly appointed as trustee of the Standby Purchaser with full power and authority
to act on behalf of the Standby Purchaser and to perform the obligations of the
Standby Purchaser under this Agreement.
(D) If the Standby Purchaser is a partnership or limited
liability company, the Standby Purchaser is a partnership or limited liability
company duly organized, validly existing and in good standing under the laws of
its jurisdiction of incorporation or organization, with full power and authority
to perform its obligations under this Agreement.
(ii) The Standby Purchaser has received from the Company and has
reviewed carefully a copy of the Prospectus as well as the public documents
filed in connection therewith through the date hereof, and except as set forth
in this Agreement and in the Prospectus, the Standby Purchaser is not relying on
any information other than information contained in this Agreement or the
Prospectus.
(iii) The Standby Purchaser is acquiring the shares of Common Stock
pursuant to this Agreement for its own account for investment only and not with
a view to any resale, distribution or other disposition thereof.
(iv) The execution, delivery and performance of this Agreement by the
Standby Purchaser and the consummation by the Standby Purchaser of the
transactions contemplated hereby have been duly authorized by all necessary
action of the Standby Purchaser; and this Agreement, when duly executed and
delivered by the Standby Purchaser, will constitute a valid and legally binding
instrument, enforceable in accordance with its terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors' rights and to general
equity principles.
(v) The Standby Purchaser is not insolvent and has sufficient cash
funds on hand to purchase the Standby Shares and Additional Shares on the terms
and conditions contained in this Agreement and will have such funds on the
Closing Date. The Standby Purchaser has simultaneously with the execution and
delivery of this Agreement or prior thereto provided the Company with evidence
or substantiated that such Standby Purchaser has the financial means to satisfy
its financial obligations under this Agreement and the foregoing evidence and
substantiation is a true and accurate representation of such means.
(vi) No state, federal or foreign regulatory approvals, permits,
licenses or consents or other contractual or legal obligations are required with
respect to the Standby Purchaser in order for the Standby Purchaser to enter
into this Agreement or purchase the Standby Shares and the Additional Shares.
(vii) The execution and delivery of this Agreement, the consummation
by the Standby Purchaser of the transactions herein contemplated and the
compliance by the Standby Purchaser with the terms hereof do not and 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 Standby
Purchaser is a party or by which any of the Standby Purchaser's properties or
assets are bound, or any applicable law, rule, regulation, judgment, order or
decree of any government, governmental instrumentality or court, domestic or
foreign, having jurisdiction over the Standby Purchaser or any of the Standby
Purchaser's properties or assets; and no consent, approval, authorization,
order, registration or qualification of or with any such government,
governmental instrumentality or court, domestic or foreign, is required for the
valid authorization, execution, delivery and performance by the Standby
Purchaser of this Agreement or the consummation by the Standby Purchaser of the
transactions contemplated by this Agreement that will not have been obtained
prior to the Closing.
(viii) The Standby Purchaser has not entered into any contracts,
arrangements, understandings or relationships (legal or otherwise) with any
other person or persons with respect to the transactions contemplated by this
Agreement or any securities of the Company, including but not limited to
transfer or voting of any of the securities, finder's fees, joint ventures, loan
or option arrangements, puts or calls, guarantees of profits, division of
profits or loss, or the giving or withholding of proxies; and the Standby
Purchaser does not own
any securities of the Company which are pledged or otherwise subject to a
contingency the occurrence of which would give another person voting power or
investment power of such securities.
6. Conditions.
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The respective obligations of the Company and the Standby Purchaser to
purchase shares of Common Stock as set forth in this Agreement are subject to
the following conditions:
(a) No order suspending the effectiveness of the Registration Statement or
any amendment or supplement thereto shall have been issued and no proceedings
for such purpose shall be pending before or threatened by the SEC and any
requests for additional information by the SEC (to be included in the
Registration Statement, in the Prospectus or otherwise) shall have been complied
with in all material respects.
(b) The representations and warranties of the Company and the Standby
Purchaser contained herein shall be true and correct in all material respects as
of the Closing Date and the Company and the Standby Purchaser shall have
performed all covenants and agreements herein required to be performed on its
part at or prior to the Closing Date.
(c) The Company shall have conducted the Rights Offering substantially in
the manner described in the Prospectus.
7. Termination.
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(a) The Standby Purchaser may terminate this Agreement (i) upon the
occurrence of a suspension of trading in the Common Stock, the establishment of
limited or minimum prices for the Common Stock or a general suspension of
trading in or the establishment of limited or minimum prices on the New York
Stock Exchange or the Nasdaq National Market, any banking moratorium, any
suspension of payments with respect to banks in the United States or a
declaration of war or national emergency in the United States, (ii) under any
circumstances which would result in the Standby Purchaser, individually or
together with any other person or entity, being required to register as a
depository institution holding company under federal or state laws or
regulations, or to submit an application, or notice, to acquire or retain
control of a depository institution or depository institution holding company,
to a federal bank regulatory authority, or (iii) prior to the expiration of the
Offering, if the Company experiences a material adverse change
in its financial condition from its financial condition on June 30, 2001.
(b) In the event (x) the Company, in its reasonable judgment, determines
that it is not in the best interests of the Company and its shareholders to go
forward with the Rights Offering or (y) consummation of the Rights Offering is
prohibited by law, rule or regulation and the Company terminates the Rights
Offering, in each case, the Company may terminate this Agreement without
liability.
(c) Either of the parties hereto may terminate this Agreement (i) if the
transactions contemplated hereby are not consummated by February 1, 2002,
through no fault of the Standby Purchaser or (ii) in the event that the Company
is unable to obtain any required federal or state approvals for the transactions
contemplated hereby on conditions reasonably satisfactory to it despite its
reasonable efforts to obtain such approvals. In addition, this Agreement shall
terminate upon mutual consent of the parties hereto.
(d) The Company and the Standby Purchaser hereby agree that any termination
of this Agreement pursuant to Section 7(a) (b) or (c), (other than termination
by one party in the event of a breach of this Agreement by the other party or
misrepresentation of any of the statements made hereby by the other party) shall
be without liability of the Company or the Standby Purchaser.
8. Continuing Provisions.
----------------------
The representations and warranties of the Company and the Standby Purchaser
set forth in this Agreement shall be true and correct in all material respects
only as of the date of this Agreement and as of the Closing Date. All of the
covenants, agreements and obligations of each of the Company and the Standby
Purchaser required to be performed by the Closing Date shall have been duly
performed and complied with by the Closing Date unless such performance shall
have been waived in writing by the Company or the Standby Purchaser, as the case
may be. The respective representations, warranties, covenants, agreements and
obligations of the parties to this Agreement shall survive the Closing Date.
9. Recapitalization, etc.
----------------------
Other than as disclosed in the Prospectus, prior to Closing, the Company
shall not split, combine, reclassify or
repurchase any of its capital stock or declare or pay any extraordinary
dividends on any of its capital stock.
10. Miscellaneous.
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This Agreement is made solely for the benefit of the Standby Purchaser and
the Company, and their respective personal representatives and successors, and
no other person, partnership, association or corporation shall acquire or have
any right under or by virtue of this Agreement.
11. Assignment.
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Neither the Company nor the Standby Purchaser may assign any of its rights
under this Agreement without the prior written consent of the other party
hereto.
12. Entire Agreement.
-----------------
This Agreement constitutes the entire agreement and understanding between
the Standby Purchaser and the Company, and supersedes all prior agreements and
understandings relating to the subject matter hereof. In case any one or more of
the provisions contained in this Agreement, or the application thereof in any
circumstance, is held invalid, illegal or unenforceable in any respect under the
laws of any jurisdiction, the validity, legality and enforceability of any such
provision in every other respect and of the remaining provisions contained
herein shall not be in any way affected or impaired thereby or under the laws of
any other jurisdiction.
13. Counterparts.
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This Agreement may be executed in any number of counterparts, each of which
when so executed and delivered shall be an original, and all such counterparts
together constitute but one and the same instrument.
14. Amendments.
-----------
This Agreement may not be amended, modified or changed, in whole or in
part, except by an instrument in writing signed by the Company and the Standby
Purchaser.
15. Notices.
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Except as otherwise provided in this Agreement, and unless otherwise
notified by the respective addressee, all notices and communications hereunder
shall be in writing and mailed or
delivered or by facsimile or telephone if subsequently confirmed in writing, to:
If to the Company:
First Leesport Bancorp, Inc.
0000 Xxxxx Xxxx Xxxx
Xxxxxxxxxx Xxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxx, Xx.
Chairman, President and Chief Executive Officer
Telephone: 610-478-9922 x. 220
Facsimile: 000-000-0000
With a copy to:
Xxxxxxx & Xxx, P.C.
000 Xxxxx Xxx Xxxxxx
Xxxxxxx, Xxxxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxx, Esq.
Xxxxx X. Xxxxxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to the Standby Purchaser:
__________________________________
__________________________________
__________________________________
Attention:________________________
Telephone:________________________
Facsimile:________________________
16. Applicable Law.
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This Agreement shall be governed by and construed in accordance with the
laws of the Commonwealth of Pennsylvania, without regard to the conflict of laws
rules thereof.
17. Business Day.
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The term "business day" shall mean a day on which banking institutions are
open generally in New York.
IN WITNESS WHEREOF, and intending to be legally bound hereby, each of the
Standby Purchaser and the Company has signed or caused to be signed its name as
of the day and year first above written.
FIRST LEESPORT BANCORP, INC.
By:____________________________
Name:
Title:
Agreed and Accepted as of the
_____ day of _______, 2001:
[STANDBY PURCHASER]
By:_____________________________
