Exhibit 1.1
_____________ SHARES
PEOPLES BANCORP INC.
COMMON STOCK
NO PAR VALUE
UNDERWRITING AGREEMENT
______________, 2002
Sandler X'Xxxxx & Partners, L.P., As representative of the several
000 Xxxxx Xxxxxx Underwriters named in Schedule I hereto,
0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Peoples Bancorp Inc., an Ohio corporation (the "Company"), proposes,
subject to the terms and conditions stated herein, to issue and sell to the
Underwriters named in Schedule I hereto (the "Underwriters") an aggregate of
__________ shares (the "Firm Shares") and, at the election of the Underwriters,
up to __________ additional shares (the "Optional Shares") of the common stock,
no par value ("Stock") of the Company (the Firm Shares and the Optional Shares
that the Underwriters elect to purchase pursuant to Section 2 hereof being
collectively called the "Shares").
1. (a) The Company represents and warrants to, and agrees with, each of
the Underwriters that:
(i) A registration statement on Form S-3 (File No. 333-_____) (the
"Initial Registration Statement") in respect of the Shares has been filed with
the Securities and Exchange Commission (the "Commission"); the Initial
Registration Statement and any post-effective amendment thereto, each in the
form heretofore delivered to you, and, excluding exhibits thereto but including
all documents incorporated by reference in the prospectus contained therein,
delivered to you for each of the other Underwriters, have been declared
effective by the Commission in such form; other than a registration statement,
if any, increasing the size of the offering (a "Rule 462(b) Registration
Statement"), filed pursuant to Rule 462(b) under the
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Securities Act of 1933, as amended (the "Act"), which became effective upon
filing, no other document with respect to the Initial Registration Statement or
document incorporated by reference therein has heretofore been filed with the
Commission; and no stop order suspending the effectiveness of the Initial
Registration Statement, any post-effective amendment thereto or the Rule 462(b)
Registration Statement, if any, has been issued and no proceeding for that
purpose has been initiated or threatened by the Commission (any preliminary
prospectus included in the Initial Registration Statement or filed with the
Commission pursuant to Rule 424(a) of the rules and regulations of the
Commission under the Act, is hereinafter called a "Preliminary Prospectus"); the
various parts of the Initial Registration Statement and the Rule 462(b)
Registration Statement, if any, including all exhibits thereto and including the
information contained in the form of final prospectus filed with the Commission
pursuant to Rule 424(b) under the Act in accordance with Section 5(a) hereof and
deemed by virtue of Rule 430A under the Act to be part of the Initial
Registration Statement at the time it was declared effective, each as amended at
the time such part of the Initial Registration Statement became effective or
such part of the Rule 462(b) Registration Statement, if any, became or hereafter
becomes effective, are hereinafter collectively called the "Registration
Statement"; and such final prospectus, in the form first filed pursuant to Rule
424(b) under the Act, is hereinafter called the "Prospectus";
(ii) No order preventing or suspending the use of any Preliminary
Prospectus has been issued by the Commission, and each Preliminary Prospectus,
at the time of filing thereof, conformed in all material respects to the
requirements of the Act and the rules and regulations of the Commission
thereunder, and did not contain an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; provided, however, that this representation and warranty
shall not apply to any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Company by an
Underwriter through Sandler X'Xxxxx & Partners, L.P. expressly for use therein;
(iii) The Registration Statement conforms, and the Prospectus and
any further amendments or supplements to the Registration Statement or the
Prospectus will conform, in all material respects to the requirements of the Act
and the rules and regulations of the Commission thereunder 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 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 not misleading; provided, however, that
this representation and warranty shall not apply to any statements or omissions
made in reliance upon and in conformity with information furnished in writing to
the Company by an Underwriter through Sandler X'Xxxxx & Partners, L.P. expressly
for use therein;
(iv) The documents which are incorporated by reference in the
Registration Statement or any Preliminary Prospectus or the Prospectus or from
which information is so incorporated by reference, when they became effective or
were filed with the Commission, as the
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case may be (or, if an amendment with respect to any such documents was filed or
became effective, when such amendment was filed or became effective), complied
in all material respects to the requirements of the Securities Exchange Act of
1934, as amended (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 to the statements therein not misleading;
(v) 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 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 Prospectus;
and, since the respective dates as of which information is given in the
Registration Statement and the Prospectus, 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 that may cause a
prospective material adverse change, in or affecting the general affairs,
management, financial position, business prospects, stockholders' equity or
results of operations of the Company and its subsidiaries, otherwise than as set
forth or contemplated in the Prospectus;
(vi) The Company and its subsidiaries have good and marketable title
in fee simple to all real property and good and marketable title to all personal
property owned by them, in each case free and clear of all liens, encumbrances
and defects except such as are described in the Prospectus or such as do not
materially affect the value of such property and do not interfere with the use
made and proposed to be made of such property by the Company and its
subsidiaries; and any real property and buildings held under lease by the
Company and its subsidiaries are held by them under valid, subsisting and
enforceable leases with such exceptions as are not material and do not interfere
with the use made and proposed to be made of such property and buildings by the
Company and its subsidiaries;
(vii) The Company is a registered financial holding company under
the Bank Holding Company Act of 1956, as amended ("BHCA") with respect to
Peoples Bank, National Association (the "Bank") and has been duly incorporated
and is validly existing as a corporation in good standing under the laws of the
State of Ohio, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Prospectus, and has been
duly qualified as a foreign corporation for the transaction of business and is
in good standing under the laws of each other jurisdiction in which it owns or
leases properties or conducts any business so as to require such qualification,
or is subject to any liability or disability by reason of the failure to be so
qualified in any jurisdiction;
(viii) Each subsidiary of the Company either has been duly
incorporated and is validly existing as a corporation or a statutory business
trust or has been duly chartered and is validly existing as a national banking
association, in each case in good standing under the laws of the jurisdiction of
its organization, with power and authority (corporate and other) to own its
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properties and conduct its business as described in the Prospectus, and has been
duly qualified as a foreign corporation for the transaction of business and is
in good standing under the laws of each other jurisdiction in which it owns or
leases properties or conducts any business so as to require such qualification,
or is subject to any liability or disability by reason of the failure to be so
qualified in any jurisdiction, except where the failure to be so qualified would
not have a Material Adverse Effect; the activities of the subsidiaries of the
Bank are permitted to subsidiaries of a national banking association and the
deposit accounts of the Bank are insured up to the applicable limits by the
Federal Deposit Insurance Corporation (the "FDIC");
(ix) The Company has an authorized capitalization as set forth in
the Prospectus under the heading "Capitalization", and all of the issued shares
of capital stock of the Company have been duly and validly authorized and
issued, are fully paid and nonassessable and conform to the description of the
Stock contained in the Prospectus; all of the issued and outstanding capital
stock of each subsidiary of the Company has been duly authorized and validly
issued and is fully paid and nonassessable and is owned, directly or through
other subsidiaries of the Company, by the Company free and clear of any pledge,
lien, encumbrance, claim or equity;
(x) The unissued Shares to be issued and sold by the Company to the
Underwriters hereunder have been duly and validly authorized and, when issued
and delivered against payment therefor as provided herein, will be duly and
validly issued and fully paid and non-assessable and will conform to the
description of the Stock contained in the Prospectus;
(xi) Except as described in the Prospectus, (A) there are no
outstanding rights (contractual or otherwise), warrants or options to acquire,
or instruments convertible into or exchangeable for, or agreements or
understandings with respect to the sale or issuance of, any shares of capital
stock of or other equity interest in the Company; and (B) there are no
contracts, agreements or understandings between the Company and any person
granting such person the right to require the Company to file a Registration
Statement under the Act or otherwise register any securities the Company owned
or to be owned by such person;
(xii) The issue and sale of the Shares by the Company and the
compliance by the Company with all of the provisions of this Agreement and the
consummation of the transactions herein contemplated 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 the Company or any of its
subsidiaries is subject, nor will such action result in any violation of the
provisions of the Amended Articles of Incorporation or Code of Regulations of
the Company or any statute or any order, rule or regulation of any federal,
state, local or foreign court or governmental agency (each a "Governmental
Entity") or body having jurisdiction over the Company or any of its subsidiaries
or any of their properties; and no consent, approval, authorization, order,
registration or qualification of or with any such court or governmental agency
or body is required for the issue and sale of the Shares or the
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consummation by the Company of the transactions contemplated by this Agreement,
except the registration under the Act of the Shares and except as may be
required under the rules and regulations of the National Association of
Securities Dealers, Inc. ("NASD") and 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 Shares by
the Underwriters;
(xiii) Neither the Company nor any of its subsidiaries is in
violation of its certificate of incorporation or charter (as applicable), code
of regulations or bylaws or in default in the performance or observance of any
material obligation, agreement, covenant or condition contained in any
indenture, mortgage, deed of trust, loan agreement, note, lease or other
agreement or instrument to which it is a party or by which it or any of its
properties may be bound;
(xiv) The statements set forth in the Prospectus under the caption
"Description of our Common Shares", insofar as they purport to constitute a
summary of the terms of the capital stock of the Company and to describe the
provisions of the laws and documents described thereunder, and under the caption
"Supervision and Regulation" in the most recent annual report on Form 10-K,
insofar it purports to describe the provisions of the laws and documents
referred to therein, are accurate and complete;
(xv) Except as disclosed in the Prospectus, the Company and its
subsidiaries conducting their respective businesses in compliance in all
material respects with all federal, state, local and foreign statutes, laws,
rules, regulations, decisions, directives and orders applicable to them
(including, without limitation, the Act, the Exchange Act, the Sarbanes Oxley
Act of 2002 and all rules and regulations promulgated thereunder, as well as all
regulations and orders of, or agreements with, the Board of Governors of the
Federal Reserve System (the "Federal Reserve"), Office of the Comptroller of the
Currency (the "OCC") and the FDIC, the Equal Credit Opportunity Act, the Fair
Housing Act, the Community Reinvestment Act, the Home Mortgage Disclosure Act,
all other applicable fair lending laws or other laws relating to discrimination
and the Bank Secrecy Act and Title III of the USA Patriot Act), and neither the
Company nor any of its subsidiaries has received any communication from any
Governmental Entity asserting that the Company or any of its subsidiaries is not
in compliance with any statute, law, rule, regulation, decision, directive or
order;
(xvi) Except as disclosed in the Prospectus, there are no legal or
governmental actions or suits, investigations proceedings before or by any
Government Entity, now pending or, to the knowledge of the Company, threatened
or contemplated by Government Entities or threatened by others, to which the
Company or any of its subsidiaries is a party or of which any property of the
Company or any of its subsidiaries is the subject (A) that is required to be
disclosed in the Registration Statement by the Act or by the rules and
regulations of the Commission thereunder and not disclosed therein or (B) which,
if determined adversely to the Company or any of its subsidiaries, would,
individually or in the aggregate, have a material adverse effect on the
business, properties, assets, current or future consolidated financial
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position, business prospects, stockholders' equity or results of operations of
the Company and its subsidiaries taken as a whole or on the ability of the
Company to consummate the transactions contemplated herein (a "Material Adverse
Effect"); all pending legal or governmental proceedings to which the Company or
any of its subsidiaries is a party or of which any of their property is the
subject, either individually or in the aggregate, which are not described in the
Registration Statement, including ordinary routine litigation incidental to
their respective businesses, would not have a Material Adverse Effect; and there
are no contracts or documents of the Company or any of its subsidiaries which
would be required to be described in the Registration Statement or to be filed
as exhibits thereto by the Act or by the rules and regulations of the Commission
thereunder which have not been so described and filed;
(xvii) Each of the Company and its subsidiaries possess all permits,
licenses, approvals, consents and other authorizations of (collectively,
"Governmental Licenses"), and has made all filings, applications and
registrations with all Governmental Entities to permit the Company or such
subsidiary to conduct the business now operated by the Company or its
subsidiaries; the Company and its subsidiaries are in compliance with the terms
and conditions of all such Governmental Licenses, except where the failure so to
comply would not, individually or in the aggregate, have a Material Adverse
Effect; all of the Governmental Licenses are valid and in full force and effect,
except where the invalidity of such Governmental Licenses or the failure of such
Governmental Licenses to be in full force and effect would not, individually or
in the aggregate, have a Material Adverse Effect; and neither the Company nor
any of its subsidiaries has received any notice of proceedings relating to the
revocation or modification of any such Governmental Licenses which, singly or in
the aggregate, if the subject of an unfavorable decision, ruling or finding,
would result in a Material Adverse Effect;
(xviii) Neither the Company nor any of its subsidiaries is a party
to or subject to any order, decree, agreement, memorandum or understanding or
similar agreement with, or a commitment letter, supervisory letter or similar
submission to, any Governmental Entity charged with the supervision or
regulation of depository institutions or engaged in the insurance of deposits
(including the FDIC) or the supervision or regulation of it or any of its
subsidiaries and neither the Company nor any of its subsidiaries has been
advised by any such Governmental Entity that such Governmental Entity is
contemplating issuing or requesting (or is considering the appropriateness of
issuing or requesting) any such order, decree, agreement, memorandum or
understanding, commitment letter, supervisory letter or similar submission;
(xix) Each of the Company and its subsidiaries is in compliance in
all material respects with all applicable federal, state and local environmental
laws and regulations, including, without limitation, those applicable to
emissions to the environment, waste management, and waste disposal
(collectively, the "Environmental Laws"), except where such noncompliance would
not be reasonably likely to have a Material Adverse Effect, or except as
disclosed in the Prospectus, and to the knowledge of the Company, there are no
circumstances that would prevent, interfere with or materially increase the cost
of such compliance in the future;
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(xx) Except as disclosed in the Prospectus, there is no claim under
any Environmental Law, including common law, pending or, to the best knowledge
of the Company, threatened against the Company or its subsidiaries (an
"Environmental Claim"), which would be reasonably likely to have a Material
Adverse Effect, and, to the knowledge of the Company, under applicable law,
there are no past or present actions, activities, circumstances, events or
incidents, including, without limitation, releases of any material into the
environment, that are reasonably likely to form the basis of any Environmental
Claim against the Company or its subsidiaries which would be reasonably likely
to have a Material Adverse Effect;
(xxi) The Company and each of its subsidiaries own or possess
adequate rights to use all material patents, patent applications, trademarks,
service marks, trade names, trademark registrations, service xxxx registrations,
copyrights and licenses necessary for the conduct of their respective businesses
and have no reason to believe that the conduct of their respective businesses
will conflict with, and have not received any notice of any claim of conflict
with, any such rights of others;
(xxii) No relationship, direct or indirect, exists between or among
the Company on the one hand, and the directors, officers, customers or suppliers
of the Company on the other hand, which is required to be described in the
Registration Statement by the Act or by the rules and regulations of the
Commission thereunder which has not been so described;
(xxiii) The statistical and market related data contained in the
Prospectus and Registration Statement are based on or derived from sources which
the Company believes are reliable and accurate;
(xxiv) The Company and each of its subsidiaries have taken all
actions necessary to comply in all material respects with the Xxxxxxxx-Xxxxx Act
of 2002 and the rules and regulations promulgated thereunder as well as the
corporate governance rules that are in effect and that have been adopted by
Nasdaq for entities with securities quoted on the Nasdaq National Market System
("Nasdaq");
(xxv) Other than as set forth in the Prospectus, 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 of the Company or any of its
subsidiaries is the subject which, if determined adversely to the Company or any
of its subsidiaries, would individually or in the aggregate have a Material
Adverse Effect; and, to the best of the Company's knowledge, no such proceedings
are threatened or contemplated by governmental authorities or threatened by
others;
(xxvi) The Company is not and, after giving effect to the offering
and sale of the Shares, will not be an "investment company" or an entity
"controlled" by an "investment company", as such terms are defined in the
Investment Company Act of 1940, as amended (the "Investment Company Act");
(xxvii) The Company and its subsidiaries, taken as a whole, are
insured by insurers of recognized financial responsibility against such losses
and risks and in such amounts
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as are prudent and customary in the business in which they are engaged; and
neither the Company nor any of its subsidiaries has any reason to believe that
it will not be able to renew its existing insurance coverage from similar
insurers as may be necessary to continue its business at a cost that would not
have a Material Adverse Effect; and
(xxviii) Ernst & Young LLP, who have certified certain financial
statements of the Company and its subsidiaries, are independent public
accountants as required by the Act and the rules and regulations of the
Commission thereunder and all non-auditing services, if any, provided by Ernst &
Young LLP to the Company have been pre-approved by the Company's audit committee
and otherwise comply with the Exchange Act and the rules and regulations
promulgated thereunder.
(b) The Bank represents and warrants to, and agrees with, each of
the Underwriters that:
(i) The Bank has been duly chartered and is validly existing as a
national banking association in good standing under the laws of the United
States, with power and authority (corporate and other) to own its properties and
conduct its business as described in the Prospectus, and has been duly qualified
as a foreign corporation for the transaction of business and is in good standing
under the laws of each other jurisdiction in which it owns or leases properties
or conducts any business so as to require such qualification, or is subject to
no material liability or disability by reason of the failure to be so qualified
in any such jurisdiction;
(ii) Neither the Bank nor any of its subsidiaries is in violation of
its stock charter, bylaws or other charter documents or in default in the
performance or observance of any material obligation, agreement, covenant or
condition contained in any contract, indenture, mortgage, deed of trust, loan
agreement, note, lease or other agreement or instrument to which the Bank or any
of its subsidiaries is a party or by which it or any of them may be bound, or to
which any of the property of the Bank or any of its subsidiaries is subject; and
(iii) The execution, delivery and performance of this Agreement by
the Bank and the compliance by the Bank with all of the provisions of this
Agreement and the consummation of the transactions herein contemplated 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 Bank or any
of its subsidiaries is a party or by which the Bank or any of its subsidiaries
is bound or to which any of the property or assets of the Bank or any of its
subsidiaries is subject, nor will such action result in any violation of the
provisions of the charter or bylaws of the Bank or any statute or any order,
rule or regulation of any court or governmental agency or body having
jurisdiction over the Bank or any of its subsidiaries or any of their
properties.
2. Subject to the terms and conditions herein set forth, (a) the
Company agrees to issue and sell to each of the Underwriters, and each of the
Underwriters agrees, severally and not jointly, to purchase from the Company, at
a purchase price per share of $_____ the number of
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Firm Shares set forth opposite the name of such Underwriter in Schedule I hereto
and (b) in the event and to the extent that the Underwriters shall exercise the
election to purchase Optional Shares as provided below, the Company agrees to
issue and sell to each of the Underwriters, and each of the Underwriters agrees,
severally and not jointly, to purchase from the Company, at the purchase price
per share set forth in clause (a) of this Section 2, that portion of the number
of Optional Shares as to which such election shall have been exercised (to be
adjusted by you so as to eliminate fractional shares) determined by multiplying
such number of Optional Shares by a fraction, the numerator of which is the
maximum number of Optional Shares which such Underwriter is entitled to purchase
as set forth opposite the name of such Underwriter in Schedule I hereto and the
denominator of which is the maximum number of Optional Shares that all of the
Underwriters are entitled to purchase hereunder.
The Company hereby grants to the Underwriters the right to purchase at
their election up to _________ Optional Shares, at the purchase price per share
set forth in clause (a) of the paragraph above, for the sole purpose of covering
sales of shares in excess of the number of Firm Shares. Any such election to
purchase Optional Shares may be exercised only by written notice from you to the
Company, given within a period of 30 calendar days after the date of this
Agreement, setting forth the aggregate number of Optional Shares to be purchased
and the date on which such Optional Shares are to be delivered, as determined by
you but in no event earlier than the First Time of Delivery (as defined in
Section 4 hereof) or, unless you and the Company otherwise agree in writing, no
earlier than two or later than ten business days after the date of such notice.
3. Upon the authorization by you of the release of the Firm Shares, the
several Underwriters propose to offer the Firm Shares for sale upon the terms
and conditions set forth in the Prospectus.
4. (a) The Shares to be purchased by each Underwriter hereunder, in
definitive form, and in such authorized denominations and registered in such
names as Sandler X'Xxxxx & Partners, L.P. may request upon at least forty-eight
hours' prior notice to the Company shall be delivered by or on behalf of the
Company to Sandler X'Xxxxx & Partners, L.P., through the facilities of the
Depository Trust Company ("DTC"), for the account of such Underwriter, against
payment by or on behalf of such Underwriter of the purchase price therefor by
wire transfer of Federal (same day) funds to the account specified by the
Company to Sandler X'Xxxxx & Partners, L.P. at least 48 hours in advance. The
Company will cause the certificates representing the Shares to be made available
for checking and packaging at least twenty-four hours prior to the Time of
Delivery (as defined below) with respect thereto at the office of DTC or its
designated custodian (the "Designated Office"). The time and date of such
delivery and payment shall be, with respect to the Firm Shares, ____ a.m.,
Eastern time, on ________, 2002 or such other time and date as Sandler X'Xxxxx &
Partners, L.P. and the Company may agree upon in writing, and, with respect to
the Optional Shares, ____ a.m., New York time, on the date specified by Sandler
X'Xxxxx & Partners, L.P. in the written notice given by Sandler X'Xxxxx &
Partners, L.P. of the Underwriters' election to purchase such Optional Shares,
or such other time and date as Sandler X'Xxxxx & Partners, L.P. and the Company
may agree upon in writing. Such
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time and date for delivery of the Firm Shares is herein called the "First Time
of Delivery", such time and date for delivery of the Optional Shares, if not the
First Time of Delivery, is herein called the "Second Time of Delivery", and each
such time and date for delivery is herein called a "Time of Delivery".
(b) The documents to be delivered at each Time of Delivery by or on
behalf of the parties hereto pursuant to Section 7 hereof, including the cross
receipt for the Shares and any additional documents requested by the
Underwriters pursuant to Section 7(k) hereof, will be delivered at the offices
of Barack Xxxxxxxxxx Xxxxxxxxxx Xxxxxxx & Xxxxxxxxx LLC, 000 Xxxx Xxxxxx Xxxxx,
Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000 (the "Closing Location"), and the Shares
will be delivered at the Designated Office, all at such Time of Delivery. A
meeting will be held at the Closing Location at _____ a.m., Eastern Time, on the
New York Business Day next preceding such Time of Delivery, at which meeting the
final drafts of the documents to be delivered pursuant to the preceding sentence
will be available for review by the parties hereto. For the purposes of this
Section 4, "New York Business Day" shall mean each Monday, Tuesday, Wednesday,
Thursday and 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.
5. The Company agrees with each of the Underwriters:
(a) To prepare the Prospectus in a form approved by you and to file
such Prospectus pursuant to Rule 424(b) under the Act not later than the
Commission's close of business on the second business day following the
execution and delivery of this Agreement, or, if applicable, such earlier time
as may be required by Rule 430A(a)(3) under the Act; to make no further
amendment or any supplement to the Registration Statement or Prospectus which
shall be disapproved by you promptly after reasonable notice thereof; to advise
you, 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 Prospectus or any amended Prospectus has been filed and to
furnish you with copies thereof; to advise you, 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 Preliminary Prospectus or
Prospectus, of the suspension of the qualification of the Shares 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 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 Preliminary Prospectus or prospectus or
suspending any such qualification, promptly to use its best efforts to obtain
the withdrawal of such order;
(b) Promptly from time to time to take such action as you may
reasonably request to qualify the Shares for offering and sale under the
securities laws of such jurisdictions as you 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 Shares, provided that in connection therewith the Company shall not be
required to qualify as a foreign corporation or to file a general consent to
service of process in any jurisdiction;
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(c) Prior to 10:00 a.m., Eastern Time, on the New York Business Day
next succeeding the date of this Agreement and from time to time, to furnish the
Underwriters with copies of the Prospectus in New York City in such quantities
as you may from time to time reasonably request, and, if the delivery of a
prospectus is required at any time prior to the expiration of nine months after
the time of issue of the Prospectus in connection with the offering or sale of
the Shares and if at such time any event shall have occurred as a result of
which the 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 Prospectus is delivered, not misleading, or, if
for any other reason it shall be necessary during such period to amend or
supplement the Prospectus in order to comply with the Act, to notify you and
upon your request to prepare and furnish without charge to each Underwriter and
to any dealer in securities as many copies as you may from time to time
reasonably request of an amended Prospectus or a supplement to the Prospectus
which will correct such statement or omission or effect such compliance, and in
case any Underwriter is required to deliver a prospectus in connection with
sales of any of the Shares at any time nine months or more after the time of
issue of the Prospectus, upon your request but at the expense of such
Underwriter, to prepare and deliver to such Underwriter as many copies as you
may request of an amended or supplemented Prospectus complying with Section
10(a)(3) of the Act;
(d) To make generally available to its securityholders as soon as
practicable, but in any event not later than eighteen months after the effective
date of the Registration Statement (as defined in Rule 158(c) under the Act), an
earnings statement of the Company and its subsidiaries (which need not be
audited) complying with Section 11(a) of the Act and the rules and regulations
thereunder (including, at the option of the Company, Rule 158);
(e) During the period beginning from the date hereof and continuing
to and including the date 180 days after the date of the Prospectus, not to, and
not to allow its directors, and executive officers to, offer, sell, contract to
sell or otherwise dispose of, except as provided hereunder, any securities of
the Company that are substantially similar to the Shares, including but not
limited to any securities that are convertible into or exchangeable for, or that
represent the right to receive, Stock or any such substantially similar
securities (other than pursuant to employee stock option plans existing on, or
upon the conversion or exchange of convertible or exchangeable securities
outstanding as of, the date of this Agreement), without your prior written
consent;
(f) To furnish to its stockholders as soon as practicable after the
end of each fiscal year an annual report (including a balance sheet and
statements of income, stockholders' equity and cash flows of the Company and its
consolidated subsidiaries certified by independent public accountants) and, as
soon as practicable after the end of each of the first three quarters of each
fiscal year (beginning with the fiscal quarter ending after the effective date
of the Registration Statement), to make available to its stockholders
consolidated summary financial information of the Company and its subsidiaries
for such quarter in reasonable detail;
12
(g) During a period of five years from the effective date of the
Registration Statement, to furnish to you copies of all reports or other
communications (financial or other) furnished to stockholders, and to deliver to
you (i) as soon as they are available, copies of any reports and financial
statements furnished to or filed with the Commission or any national securities
exchange on which any class of securities of the Company is listed; and (ii)
such additional information concerning the business and financial condition of
the Company as you may from time to time reasonably request (such financial
statements to be on a consolidated basis to the extent the accounts of the
Company and its subsidiaries are consolidated in reports furnished to its
stockholders generally or to the Commission);
(h) To use the net proceeds received by it from the sale of the
Shares pursuant to this Agreement in the manner specified in the Prospectus
under the caption "Use of Proceeds";
(i) If the Company elects to rely on Rule 462(b), the Company shall
file a Rule 462(b) Registration Statement with the Commission in compliance with
Rule 462(b) by 10:00 p.m., Eastern time on the date of this Agreement, and the
Company shall at the time of filing either pay to the Commission the filing fee
for the Rule 462(b) Registration Statement or give irrevocable instructions for
the payment of such fee pursuant to Rule 111(b) under the Act;
(j) To use its best efforts to list for quotation the Shares on
Nasdaq;
(k) To file with the Commission such information on Form 10-Q or
Form 10-K as may be required by Rule 463 of the Act; and
(l) During the period beginning on the date hereof and ending on the
later of the fifth anniversary of the First Time of Delivery or the date on
which the Underwriters receive full payment in satisfaction of any claim for
indemnification or contribution to which they may be entitled pursuant to
Section 9 of this Agreement, neither the Company nor the Bank shall, without the
prior written consent of Sandler X'Xxxxx & Partners, L.P., take or permit to be
taken any action that could result in the Bank's common stock becoming subject
to any security interest, mortgage, pledge, lien or encumbrance; provided,
however, that this covenant shall by null and void if the Federal Reserve, OCC,
the FDIC, or any other federal agency having jurisdiction over the Bank, by
regulation, policy statement or interpretive release or by written order or
written advice addressed to the Bank and specifically addressing the provisions
of Section 8 hereof, permits indemnification of the Underwriters by the Bank as
contemplated by such provisions.
6. The Company covenants and agrees with the several Underwriters that
the Company will pay or cause to be paid the following, whether or not the
transactions contemplated herein are completed: (i) the reasonable out-of-pocket
expenses incurred by the Underwriters in connection with the transactions
contemplated hereby, including, without limitation, disbursements, fees and
expenses of Underwriters' counsel and marketing, syndication and travel
expenses; (ii) the fees, disbursements and expenses of the Company's counsel and
accountants in connection with the registration of the Shares under the Act and
all other expenses in connection with the preparation, printing and filing of
amendments and
13
supplements thereto and the mailing and delivering of copies thereof to the
Underwriters and dealers; (iii) the cost of printing or producing any agreement
among Underwriters, this Agreement, the Blue Sky Memorandum, closing documents
(including any compilations thereof) and any other documents in connection with
the offering, purchase, sale and delivery of the Shares; (iv) all expenses in
connection with the qualification of the Shares for offering and sale under
state securities laws as provided in Section 5(b) hereof, including the fees and
disbursements of counsel for the Underwriters in connection with such
qualification and in connection with the Blue Sky survey; (v) all fees and
expenses in connection with listing the Shares on the Nasdaq National Market;
(vi) the filing fees incident to, and the fees and disbursements of counsel for
the Underwriters in connection with, securing any required review by the
National Association of Securities Dealers, Inc. of the terms of the sale of the
Shares; (vii) the cost of preparing stock certificates; (viii) the cost and
charges of any transfer agent or registrar; and (ix) all other costs and
expenses incident to the performance of its obligations hereunder which are not
otherwise specifically provided for in this Section.
7. The obligations of the Underwriters hereunder, as to the Shares to
be delivered at each Time of Delivery, shall be subject, in their discretion, to
the condition that all representations and warranties and other statements of
the Company herein are, at and as of such Time of Delivery, true and correct,
the condition that the Company shall have performed all of its obligations
hereunder theretofore to be performed, and the following additional conditions:
(a) The Prospectus shall have been filed with the Commission
pursuant to Rule 424(b) within the applicable time period prescribed for such
filing by the rules and regulations under the Act and in accordance with Section
5(a) hereof; if the Company has elected to rely upon Rule 462(b), the Rule
462(b) Registration Statement shall have become effective by 10:00 P.M., Eastern
Time, on the date of this Agreement; 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 all requests for additional information on the part of the
Commission shall have been complied with to your reasonable satisfaction;
(b) Barack Xxxxxxxxxx Xxxxxxxxxx Xxxxxxx & Xxxxxxxxx LLC, counsel
for the Underwriters, shall have furnished to you such written opinion or
opinions, dated such Time of Delivery, with respect to such matters as you may
reasonably request, and such counsel shall have received such papers and
information as they may reasonably request to enable them to pass upon such
matters;
(c) Vorys, Xxxxx, Xxxxxxx and Xxxxx LLP, counsel for the Company,
shall have furnished to you their written opinion (a draft of such opinion is
attached as Annex I hereto), dated such Time of Delivery, in form and substance
satisfactory to you, to the effect that:
(i) The Company is a registered financial holding company under the
BHCA; has been duly incorporated and is validly existing as a corporation in
good standing under the
14
laws of the State of Ohio, with power and authority (corporate and other) to own
its properties and conduct its business as described in the Prospectus;
(ii) The Company has an authorized capitalization as set forth in
the Prospectus under the heading "Capitalization", and all of the issued shares
of capital stock of the Company (including the Shares being delivered at such
Time of Delivery) have been duly and validly authorized and issued and are fully
paid and nonassessable; and the Shares conform to the description of the Stock
contained in the Prospectus;
(iii) Except as described in the Prospectus, (A) there are no
outstanding rights (contractual or otherwise), warrants or options to acquire,
or instruments convertible into or exchangeable for, or agreements or
understandings with respect to the sale or issuance of, any shares of capital
stock of or other equity interest in the Company; and (B) there are no
contracts, agreements or understandings between the Company and any person
granting such person the right to require the Company to file a registration
statement under the Act or otherwise register any securities of the Company
owned or to be owned by such person;
(iv) The Company has been duly qualified as a foreign corporation
for the transaction of business and is in good standing under the laws of each
other jurisdiction in which it owns or leases properties or conducts any
business so as to require such qualification, or is subject to any liability or
disability by reason of failure to be so qualified in any jurisdiction, except
where such failure to be so qualified would not have a Material Adverse Effect;
(v) Each subsidiary of the Company either has been duly incorporated
and is validly existing as a corporation or a statutory business trust or has
been duly chartered and is validly existing as a national banking association,
in each case in good standing under the laws of the jurisdiction of its
organization, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Prospectus, and has been
duly qualified as a foreign corporation for the transaction of business and is
in good standing under the laws of each other jurisdiction in which it owns or
leases properties or conducts any business so as to require such qualification,
or is subject to no material liability or disability by reason of the failure to
be so qualified in any such jurisdiction; the activities of the subsidiaries of
the Bank are activities permitted to subsidiaries of a national banking
association under applicable law and the rules and regulations of the OCC and
the deposit accounts of the Bank are insured up to the applicable limits by the
FDIC; all of the issued and outstanding capital stock of each subsidiary of the
Company has been duly authorized and validly issued and is fully paid and
nonassessable and is owned, directly or through other subsidiaries of the
Company, by the Company free and clear of any pledge, lien, encumbrance, claim
or equity;
(vi) To the best of our knowledge, the Company and its subsidiaries
have good and marketable title to all real property owned by them, in each case
free and clear of all liens, encumbrances and defects except such as are
described in the Prospectus or such as do not materially affect the value of
such property and do not interfere with the use made and proposed to be made of
such property by the Company and its subsidiaries; and any real property and
15
buildings held under lease by the Company and its subsidiaries are held by them
under valid, subsisting and enforceable leases with such exceptions as are not
material and do not interfere with the use made and proposed to be made of such
property and buildings by the Company and its subsidiaries;
(vii) Except as disclosed in the Prospectus, the Company and its
subsidiaries are conducting their respective businesses in compliance in all
material respects with all laws, rules, regulations, decisions, directives and
orders (including, without limitation, all regulations and orders of, or
agreements with, the Federal Reserve, OCC, the FDIC, the Equal Credit
Opportunity Act, the Fair Housing Act, the Community Reinvestment Act, the Home
Mortgage Disclosure Act and all other applicable fair lending laws or other laws
relating to discrimination and the Bank Secrecy Act and Title III of the USA
Patriot Act) and neither the Company nor any of its subsidiaries has received
any communication from any Governmental Entity asserting that the Company or any
of its subsidiaries is not in compliance with any statute, law, rule,
regulation, decision, directive or order; there is no action, suit,
investigation or proceeding before or by any government, governmental
instrumentality or court, domestic or foreign, now pending or, to the knowledge
of such counsel, threatened or contemplated against or affecting the Company or
any of its subsidiaries (A) that is required to be disclosed in the Registration
Statement and not disclosed therein, (B) that could result, individually or in
the aggregate, in any Material Adverse Effect, (C) that could materially and
adversely affect the properties, assets or leasehold interests of the Company
and its subsidiaries, considered as one enterprise, or (D) that could adversely
affect the consummation of the transactions contemplated in this Agreement; all
pending legal or governmental proceedings to which the Company or any of its
subsidiaries is a party or of which any of their property is the subject, which
are not described in the Registration Statement, including ordinary routine
litigation incidental to their respective businesses, either individually or in
the aggregate, would not have a Material Adverse Effect;
(viii) This Agreement has been duly authorized, executed and
delivered by the Company and the Bank;
(ix) The issue and sale of the Shares being delivered at such Time
of Delivery by the Company and the compliance by the Company with all of the
provisions of this Agreement and the consummation of the transactions herein
contemplated 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 known
to such counsel 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 the Company or any of its subsidiaries is subject, nor
will such action result in any violation of the provisions of the Amended
Articles of Incorporation, Code of Regulations or Bylaws of the Company or any
statute or any order, rule or regulation known to such counsel of any court or
Governmental Entity;
(x) No consent, approval, authorization, order, registration or
qualification of or with any court or Governmental Entity is required for the
issue and sale of the Shares or the
16
consummation by the Company of the transactions contemplated by this Agreement,
except the registration under the Act of the Shares, and except as may be
required under the rules and regulations of the NASD and 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 Shares by the Underwriters;
(xi) Neither the Company nor any of its subsidiaries is in violation
of its certificate of incorporation or charter (as applicable), code of
regulations or bylaws or, to our knowledge, in default in the performance or
observance of any material obligation, agreement, covenant or condition
contained in any indenture, mortgage, deed of trust, loan agreement, lease or
other agreement or instrument to which it is a party or by which it or any of
its properties may be bound;
(xii) The statements set forth in the Prospectus under the caption
"Description of our Common Shares", insofar as they purport to constitute a
summary of the terms of the Stock and to describe the provisions of the laws and
documents referred to therein and under the caption "Supervision and Regulation"
in the most recent annual report on Form 10-K, insofar as they purport to
describe the provisions of the laws and documents referred to therein, are
accurate and complete;
(xiii) To the best of our knowledge, each of the Company and its
subsidiaries possess all Governmental Licenses and have made all filings,
applications and registrations with all Governmental Entities that are required
in order to permit the Company or such subsidiary to conduct its business as
presently conducted, except where the failure to possess such Governmental
License or to have made such filing, application or registration would not,
individually or in the aggregate, have a Material Adverse Effect; all of the
Governmental Licenses are valid and in full force and effect, except where the
invalidity of such Governmental Licenses to be in full force and effect,
individually or in the aggregate, would not have a Material Adverse Effect; and
neither the Company nor any of its subsidiaries has received any notice of
proceedings relating to the revocation or modification of any such Governmental
Licenses which, individually or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would result in a Material Adverse
Effect;
(xiv) To the best of our knowledge, neither the Company nor any of
its subsidiaries is a party to or subject to any order, decree, agreement,
memorandum of understanding or similar arrangement with, or a commitment letter,
supervisory letter or similar submission to, any Governmental Entity charged
with the supervision or regulation of depository institutions or engaged in the
insurance of deposits (including the FDIC) or the supervision or regulation of
it or any of its subsidiaries and neither the Company nor any of its
subsidiaries has been advised by any such Governmental Entity that such
Governmental Entity is contemplating issuing or requesting (or is considering
the appropriateness of issuing or requesting) any such order, decree, agreement,
memorandum of understanding, commitment letter, supervisory letter or similar
submission;
17
(xv) The Company is not, and after giving effect to the offering and
sale of the Shares, will not be, an "investment company" or an entity
"controlled" by an "investment company", as such terms are defined in the
Investment Company Act;
(xvi) The documents incorporated by reference in the Prospectus
(other than the financial statements and related schedules therein, as to which
such counsel need express no opinion), when they were filed with the Commission,
complied as to form in all material respects with the requirements of the
Exchange Act and the rules and regulations of the Commission thereunder; and
they have no reason to believe that any such documents, when such documents were
so filed, contained an untrue statement of a material fact or omitted to state a
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made when such documents were so filed,
not misleading;
(xvii) The Registration Statement and the Prospectus and any further
amendments and supplements thereto made by the Company prior to such Time of
Delivery (other than the financial statements and related schedules therein, as
to which such counsel need express no opinion) comply as to form in all material
respects with the requirements of the Act and the rules and regulations
thereunder; and such counsel does not know of any contracts or other agreements
of a character required to be incorporated by reference into the Prospectus or
required to be filed as an exhibit to the Registration Statement or required to
be described in the Registration Statement or Prospectus which are not filed or
incorporated by reference or described as required. Although they do not assume
any responsibility for the accuracy, completeness or fairness of the statements
contained in the Registration Statement or the Prospectus, except for those
referred to in the opinion in subsection (xi) of this section 7(c), they have no
reason to believe that, as of its effective date, the Registration Statement or
any further amendment thereto made by the Company prior to such Time of Delivery
(other than the financial statements and related schedules therein, as to which
such counsel need express no opinion) 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 or that, as of its date, the Prospectus or
any further amendment or supplement thereto made by the Company prior to such
Time of Delivery (other than the financial statements and related schedules
therein, as to which such counsel need express no opinion) contained an untrue
statement of a material fact or omitted to state a material fact necessary to
make the statements therein, in the light of the circumstances under which they
were made, not misleading or that, as of such Time of Delivery, either the
Registration Statement or the Prospectus or any further amendment or supplement
thereto made by the Company prior to such Time of Delivery (other than the
financial statements and related schedules therein, as to which such counsel
need express no opinion) contains an untrue statement of a material fact or
omits to state a material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading; and they
do not know of any amendment to the Registration Statement required to be filed;
(d) On the date of the Prospectus at a time prior to the execution
of this Agreement, at 9:30 a.m., Eastern Time, on the effective date of any
post-effective amendment to
18
the Registration Statement filed subsequent to the date of this Agreement and
also at each Time of Delivery, Ernst & Young LLP shall have furnished to you a
letter or letters, dated the respective dates of delivery thereof, in form and
substance satisfactory to you, with respect to the financial statements of the
Company and certain financial information contained in the Prospectus and the
documents incorporated therein by reference.
(e) (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 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 Prospectus, and
(ii) since the respective dates as of which information is given in the
Prospectus there shall not have been any change in the capital stock or
long-term debt of the Company or any of its subsidiaries 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, otherwise than as set forth or contemplated in
the Prospectus, the effect of which, in any such case described in clause (i) or
(ii), is in the judgment of the Representative so material and adverse as to
make it impracticable or inadvisable to proceed with the public offering or the
delivery of the Shares being delivered at such Time of Delivery on the terms and
in the manner contemplated in the Prospectus;
(f) On or after the date hereof (i) no downgrading shall have
occurred in the rating accorded the Company's debt securities by any "nationally
recognized statistical rating organization", as that term is defined by the
Commission for purposes of Rule 436(g)(2) under the Act, 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;
(g) On or after the date hereof there shall not have occurred any of
the following: (i) a suspension or material limitation in trading in securities
generally on the New York Stock Exchange or on the Nasdaq; (ii) a suspension or
material limitation in trading in the Company's securities on the Nasdaq; (iii)
a general moratorium on commercial banking activities declared by either Federal
or New York authorities or a material disruption in commercial banking or
securities settlement or clearance services in the United States; (iv) the
outbreak or escalation of hostilities involving the United States or the
declaration by the United States of a national emergency or war; or (v) the
occurrence of any other calamity or crisis or any change in financial, political
or economic conditions in the United States or elsewhere, including without
limitation, as a result of terrorist activities occurring after the date hereof,
if the effect of any such event specified in clause (iv) or (v), in the judgment
of Sandler X'Xxxxx & Partners, L.P. makes it impracticable or inadvisable to
proceed with the public offering or the delivery of the Shares being delivered
at such Time of Delivery on the terms and in the manner contemplated in the
Prospectus;
(h) The Shares to be sold at such Time of Delivery shall have been
duly listed
19
for quotation on the Nasdaq;
(i) The Company has obtained and delivered to the Underwriters
executed copies of an agreement from each officer and director [and the
stockholders listed on Schedule A hereto] of the Company, substantially to the
effect set forth in Subsection 5(e) hereof in form and substance satisfactory to
you;
(j) The Company shall have complied with the provisions of Section
5(c) hereof with respect to the furnishing of prospectuses on the New York
Business Day next succeeding the date of this Agreement; and
(k) The Company shall have furnished or caused to be furnished to
you at such Time of Delivery certificates of officers of the Company
satisfactory to you as to the accuracy of the representations and warranties of
the Company herein at and as of such Time of Delivery, as to the performance by
the Company of all of its obligations hereunder to be performed at or prior to
such Time of Delivery, as to the matters set forth in subsections (a) and (e) of
this Section and as to such other matters as you may reasonably request.
8. (a) The Company and the Bank, jointly and severally, will indemnify
and hold harmless each Underwriter against any losses, claims, damages or
liabilities, joint or several, to which such Underwriter may become subject,
under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in any
Preliminary Prospectus, the Registration Statement or the Prospectus, or any
amendment or supplement thereto, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, and will
reimburse each Underwriter for any legal or other expenses reasonably incurred
by such Underwriter in connection with investigating or defending any such
action or claim as such expenses are incurred; provided, however, that the
Company and the Bank shall not be liable in any such case to the extent that any
such loss, claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission made in
any Preliminary Prospectus, the Registration Statement or the Prospectus or any
such amendment or supplement in reliance upon and in conformity with written
information furnished to the Company by any Underwriter through Sandler X'Xxxxx
& Partners, L.P. expressly for use therein.
(b) Each Underwriter will indemnify and hold harmless the Company
against any losses, claims, damages or liabilities to which the Company may
become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon an untrue statement or alleged untrue statement of a material fact
contained in any Preliminary Prospectus, the Registration Statement or the
Prospectus, or any amendment or supplement thereto, or arise out of or are based
upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading,
in each case to the extent, but only to
20
the extent, that such untrue statement or alleged untrue statement or omission
or alleged omission was made in any Preliminary Prospectus, the Registration
Statement or the Prospectus or any such amendment or supplement in reliance upon
and in conformity with written information furnished to the Company by such
Underwriter through Sandler X'Xxxxx & Partners, L.P. expressly for use therein;
and will reimburse the Company for any legal or other expenses reasonably
incurred by the Company in connection with investigating or defending any such
action or claim as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under subsection
(a) or (b) above of notice of the commencement of any action, such indemnified
party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have to
any indemnified party otherwise than under such subsection. In case any such
action shall be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it shall wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party (who shall not,
except with the consent of the indemnified party which consent shall not be
unreasonably withheld, be counsel to the indemnifying party), and, after notice
from the indemnifying party to such indemnified party of its election so to
assume the defense thereof, the indemnifying party shall not be liable to such
indemnified party under such subsection for any legal expenses of other counsel
or any other expenses, in each case subsequently incurred by such indemnified
party, in connection with the defense thereof other than reasonable costs of
investigation. No indemnifying party shall, without the written consent of the
indemnified party, effect the settlement or compromise of, or consent to the
entry of any judgment with respect to, any pending or threatened action or claim
in respect of which indemnification or contribution may be sought hereunder
(whether or not the indemnified party is an actual or potential party to such
action or claim) unless such settlement, compromise or judgment (i) includes an
unconditional release of the indemnified party from all liability arising out of
such action or claim and (ii) does not include a statement as to or an admission
of fault, culpability or a failure to act, by or on behalf of any indemnified
party.
(d) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and the Underwriters
on the other from the offering of the Shares. If, however, the allocation
provided by the immediately preceding sentence is not permitted by applicable
law or if the indemnified party failed to give the notice required under
subsection (c) above, then each indemnifying party shall contribute to such
amount paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Company on the one hand and the Underwriters on the other in
connection with the
21
statements or omissions which resulted in such losses, claims, damages or
liabilities (or actions in respect thereof), as well as any other relevant
equitable considerations. The relative benefits received by the Company on the
one hand and the Underwriters on the other shall be deemed to be in the same
proportion as the total net proceeds from the offering (before deducting
expenses) received by the Company bear to the total underwriting discounts and
commissions received by the Underwriters, in each case as set forth in the table
on the cover page of the Prospectus. The relative fault shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company on the one hand or the
Underwriters on the other and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company and the Underwriters agree that it would not be just and equitable
if contributions pursuant to this subsection (d) were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to above in this subsection (d). The amount
paid or payable by an indemnified party as a result of the losses, claims,
damages or liabilities (or actions in respect thereof) referred to above in this
subsection (d) shall be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or defending
any such action or claim. Notwithstanding the provisions of this subsection (d),
no Underwriter shall be required to contribute any amount in excess of the
amount by which the total price at which the Shares underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages which such Underwriter has otherwise been required to pay by reason of
such 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 Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters' obligations in
this subsection (d) to contribute are several in proportion to their respective
underwriting obligations and not joint.
(e) The obligations of the Company under this Section 8 shall be in
addition to any liability which the Company or the Bank may otherwise have and
shall extend, upon the same terms and conditions, to each person, if any, who
controls any Underwriter within the meaning of the Act or who is an affiliate or
partner of any Underwriter; and the obligations of the Underwriters under this
Section 8 shall be in addition to any liability which the respective
Underwriters may otherwise have and shall extend, upon the same terms and
conditions, to each officer and director of the Company or the Bank, as the case
may be, and to each other person, if any, who controls the Company or the Bank
within the meaning of the Act or who is an affiliate of the Company or the Bank,
as the case may be.
9. (a) If any Underwriter shall default in its obligation to purchase
the Shares which it has agreed to purchase hereunder at a Time of Delivery, you
may in your discretion arrange for you or another party or other parties to
purchase such Shares on the terms contained herein. If within thirty-six hours
after such default by any Underwriter you do not arrange for the purchase of
such Shares, then the Company shall be entitled to a further period of
thirty-six hours within which to procure another party or other parties
satisfactory to you to purchase such
22
Shares on such terms. In the event that, within the respective prescribed
periods, you notify the Company that you have so arranged for the purchase of
such Shares, or the Company notifies you that it has so arranged for the
purchase of such Shares, you or the Company shall have the right to postpone
such Time of Delivery for a period of not more than seven days, in order to
effect whatever changes may thereby be made necessary in the Registration
Statement or the Prospectus, or in any other documents or arrangements, and the
Company agrees to file promptly any amendments to the Registration Statement or
the Prospectus which in your opinion may thereby be made necessary. The term
"Underwriter" as used in this Agreement shall include any person substituted
under this Section with like effect as if such person had originally been a
party to this Agreement with respect to such Shares.
(b) If, after giving effect to any arrangements for the purchase of
the Shares of a defaulting Underwriter or Underwriters by you and the Company as
provided in subsection (a) above, the aggregate number of such Shares which
remains unpurchased does not exceed one-tenth of the aggregate number of all the
Shares to be purchased at such Time of Delivery, then the Company shall have the
right to require each non-defaulting Underwriter to purchase the number of
shares which such Underwriter agreed to purchase hereunder at such Time of
Delivery and, in addition, to require each non-defaulting Underwriter to
purchase its pro rata share (based on the number of Shares which such
Underwriter agreed to purchase hereunder) of the Shares of such defaulting
Underwriter or Underwriters for which such arrangements have not been made; but
nothing herein shall relieve a defaulting Underwriter from liability for its
default.
(c) If, after giving effect to any arrangements for the purchase of
the Shares of a defaulting Underwriter or Underwriters by you and the Company as
provided in subsection (a) above, the aggregate number of such Shares which
remains unpurchased exceeds one-tenth of the aggregate number of all the Shares
to be purchased at such Time of Delivery, or if the Company shall not exercise
the right described in subsection (b) above to require non-defaulting
Underwriters to purchase Shares of a defaulting Underwriter or Underwriters,
then this Agreement (or, with respect to the Second Time of Delivery, the
obligations of the Underwriters to purchase and of the Company to sell the
Optional Shares) shall thereupon terminate, without liability on the part of any
non-defaulting Underwriter or the Company, except for the expenses to be borne
by the Company as provided in Section 6 hereof and the indemnity and
contribution agreements in Section 8 hereof; but nothing herein shall relieve a
defaulting Underwriter from liability for its default.
10. The respective indemnities, agreements, representations, warranties
and other statements of the Company and the several Underwriters, as set forth
in this Agreement or made by or on behalf of them, respectively, pursuant to
this Agreement, shall remain in full force and effect, regardless of any
investigation (or any statement as to the results thereof) made by or on behalf
of any Underwriter or any controlling person of any Underwriter, or the Company,
or any officer or director or controlling person of the Company, and shall
survive delivery of and payment for the Shares.
11. If this Agreement shall be terminated pursuant to Section 9 hereof,
the Company
23
shall not then be under any liability to any Underwriter except as provided in
Sections 6 and 8 hereof; but, if for any other reason, any Shares are not
delivered by or on behalf of the Company as provided herein, the Company will
reimburse the Underwriters through you for all out-of-pocket expenses approved
by you, including fees and disbursements of counsel, reasonably incurred by the
Underwriters in making preparations for the purchase, sale and delivery of the
Shares not so delivered, but the Company shall then be under no further
liability to any Underwriter except as provided in Sections 6 and 8 hereof.
12. In all dealings hereunder, you shall act on behalf of each of the
Underwriters, and the parties hereto shall be entitled to act and rely upon any
statement, request, notice or agreement on behalf of any Underwriter made or
given by you.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex or
facsimile transmission to you as the representative at 000 Xxxxx Xxxxxx, 0xx
Xxxxx, Xxx Xxxx, XX 00000, Attention: Xxxxxxxxx X. Xxxxxx, Principal; and if to
the Company shall be delivered or sent by mail or facsimile to 000 Xxxxxx
Xxxxxx, Xxxxxxxx, Xxxx 00000 [FACSIMILE NUMBER], Attention: [Name, Title];
provided, however, that any notice to an Underwriter pursuant to Section 8(c)
hereof shall be delivered or sent by mail, telex or facsimile transmission to
such Underwriter at its address set forth in its Underwriters' Questionnaire, or
telex constituting such Questionnaire, which address will be supplied to the
Company by you upon request. Any such statements, requests, notices or
agreements shall take effect upon receipt thereof.
13. This Agreement shall be binding upon, and inure solely to the
benefit of, the Underwriters, the Company and, to the extent provided in
Sections 8 and 10 hereof, the officers and directors of the Company and each
person who controls the Company or any Underwriter, and their respective heirs,
executors, administrators, successors and assigns, and no other person shall
acquire or have any right under or by virtue of this Agreement. No purchaser of
any of the Shares from any Underwriter shall be deemed a successor or assign by
reason merely of such purchase.
14. Time shall be of the essence of this Agreement. As used herein, the
term "business day" shall mean any day when the Commission's office in
Washington, D.C. is open for business.
15. This Agreement shall be governed by and construed in accordance
with the laws of the State of New York.
16. This Agreement may be executed by any one or more of the parties
hereto in any number of counterparts, each of which shall be deemed to be an
original, but all such counterparts shall together constitute one and the same
instrument.
24
If the foregoing is in accordance with your understanding, please sign
and return to us four counterparts hereof, and upon the acceptance hereof by
you, on behalf of each of the Underwriters, this letter and such acceptance
hereof shall constitute a binding agreement between each of the Underwriters and
the Company. It is understood that your acceptance of this letter on behalf of
each of the Underwriters is pursuant to the authority set forth in a for of
Agreement among Underwriters, but without warranty on your part as to the
authority of the signer thereof.
Very truly yours,
PEOPLES BANCORP INC.
By:
-------------------------------------
[Name]
[Title]
PEOPLES BANK, NATIONAL ASSOCIATION
By: .
-------------------------------------
[Name]
[Title]
Accepted as of the date hereof:
SANDLER X'XXXXX & PARTNERS, L.P.
As representative of the Underwriters
By: Sandler X'Xxxxx & Partners Corp.
the sole general partner
By: .
----------------------------------
Name:
Title: Vice President
SCHEDULE I
NUMBER OF OPTIONAL
17. Shares to be
TOTAL NUMBER OF
FIRM SHARES PURCHASED IF
UNDERWRITER TO BE PURCHASED MAXIMUM OPTION
----------- --------------- EXERCISED
--------------
Sandler X'Xxxxx & Partners, L.P.
Total
26
ANNEX I
Pursuant to Section 7(c) of the Underwriting Agreement, counsel for the
Company shall furnish an opinion to the Underwriter to the effect that:
(i) The Company is a registered financial holding company under the
BHCA; has been duly incorporated and is validly existing as a corporation in
good standing under the laws of the State of Ohio, with power and authority
(corporate and other) to own its properties and conduct its business as
described in the Prospectus;
(ii) The Company has an authorized capitalization as set forth in the
Prospectus under the heading "Capitalization", and all of the issued shares of
capital stock of the Company (including the Shares being delivered at such Time
of Delivery) have been duly and validly authorized and issued and are fully paid
and nonassessable; and the Shares conform to the description of the Stock
contained in the Prospectus;
(iii) Except as described in the Prospectus, (A) there are no
outstanding rights (contractual or otherwise), warrants or options to acquire,
or instruments convertible into or exchangeable for, or agreements or
understandings with respect to the sale or issuance of, any shares of capital
stock of or other equity interest in the Company; and (B) there are no
contracts, agreements or understandings between the Company and any person
granting such person the right to require the Company to file a registration
statement under the Act or otherwise register any securities of the Company
owned or to be owned by such person;
(iv) The Company has been duly qualified as a foreign corporation for
the transaction of business and is in good standing under the laws of each other
jurisdiction in which it owns or leases properties or conducts any business so
as to require such qualification, or is subject to any liability or disability
by reason of failure to be so qualified in any jurisdiction, except where such
failure to be so qualified would not have a Material Adverse Effect;
(v) Each subsidiary of the Company either has been duly incorporated
and is validly existing as a corporation or a statutory business trust or has
been duly chartered and is validly existing as a national banking association,
in each case in good standing under the laws of the jurisdiction of its
organization, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Prospectus, and has been
duly qualified as a foreign corporation for the transaction of business and is
in good standing under the laws of each other jurisdiction in which it owns or
leases properties or conducts any business so as to require such qualification,
or is subject to no material liability or disability by reason of the failure to
be so qualified in any such jurisdiction; the activities of the subsidiaries of
the Bank are activities permitted to subsidiaries of a national banking
association under applicable law and the rules and regulations of the OCC and
the deposit accounts of the Bank are insured up to the applicable limits by the
FDIC; all of the issued and outstanding capital stock of each subsidiary of the
Company has been duly authorized and validly issued and is fully paid and
nonassessable and is owned, directly or through other subsidiaries of the
Company, by the Company free and
27
clear of any pledge, lien, encumbrance, claim or equity;
(vi) To the best of our knowledge, the Company and its subsidiaries
have good and marketable title to all real property owned by them, in each case
free and clear of all liens, encumbrances and defects except such as are
described in the Prospectus or such as do not materially affect the value of
such property and do not interfere with the use made and proposed to be made of
such property by the Company and its subsidiaries; and any real property and
buildings held under lease by the Company and its subsidiaries are held by them
under valid, subsisting and enforceable leases with such exceptions as are not
material and do not interfere with the use made and proposed to be made of such
property and buildings by the Company and its subsidiaries;
(vii) Except as disclosed in the Prospectus, the Company and its
subsidiaries are conducting their respective businesses in compliance in all
material respects with all laws, rules, regulations, decisions, directives and
orders (including, without limitation, all regulations and orders of, or
agreements with, the Federal Reserve, OCC, the FDIC, the Equal Credit
Opportunity Act, the Fair Housing Act, the Community Reinvestment Act, the Home
Mortgage Disclosure Act and all other applicable fair lending laws or other laws
relating to discrimination and the Bank Secrecy Act and Title III of the USA
Patriot Act) and neither the Company nor any of its subsidiaries has received
any communication from any Governmental Entity asserting that the Company or any
of its subsidiaries is not in compliance with any statute, law, rule,
regulation, decision, directive or order; there is no action, suit,
investigation or proceeding before or by any government, governmental
instrumentality or court, domestic or foreign, now pending or, to the knowledge
of such counsel, threatened or contemplated against or affecting the Company or
any of its subsidiaries (A) that is required to be disclosed in the Registration
Statement and not disclosed therein, (B) that could result, individually or in
the aggregate, in any Material Adverse Effect, (C) that could materially and
adversely affect the properties, assets or leasehold interests of the Company
and its subsidiaries, considered as one enterprise, or (D) that could adversely
affect the consummation of the transactions contemplated in this Agreement; all
pending legal or governmental proceedings to which the Company or any of its
subsidiaries is a party or of which any of their property is the subject, which
are not described in the Registration Statement, including ordinary routine
litigation incidental to their respective businesses, either individually or in
the aggregate, would not have a Material Adverse Effect;
(viii) This Agreement has been duly authorized, executed and delivered
by the Company and the Bank;
(ix) The issue and sale of the Shares being delivered at such Time of
Delivery by the Company and the compliance by the Company with all of the
provisions of this Agreement and the consummation of the transactions herein
contemplated 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 known
to such counsel 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 the
28
Company or any of its subsidiaries is subject, nor will such action result in
any violation of the provisions of the Amended Articles of Incorporation, Code
of Regulations or Bylaws of the Company or any statute or any order, rule or
regulation known to such counsel of any court or Governmental Entity;
(x) No consent, approval, authorization, order, registration or
qualification of or with any court or Governmental Entity is required for the
issue and sale of the Shares or the consummation by the Company of the
transactions contemplated by this Agreement, except the registration under the
Act of the Shares, and except as may be required under the rules and regulations
of the NASD and 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 Shares by the Underwriters;
(xi) Neither the Company nor any of its subsidiaries is in violation of
its certificate of incorporation or charter (as applicable), code of regulations
or bylaws or, to our knowledge, in default in the performance or observance of
any material obligation, agreement, covenant or condition contained in any
indenture, mortgage, deed of trust, loan agreement, lease or other agreement or
instrument to which it is a party or by which it or any of its properties may be
bound;
(xii) The statements set forth in the Prospectus under the caption
"Description of our Common Shares", insofar as they purport to constitute a
summary of the terms of the Stock and to describe the provisions of the laws and
documents referred to therein and under the caption "Supervision and Regulation"
in the most recent annual report on Form 10-K, insofar as they purport to
describe the provisions of the laws and documents referred to therein, are
accurate and complete;
(xiii) To the best of our knowledge, each of the Company and its
subsidiaries possess all Governmental Licenses and have made all filings,
applications and registrations with all Governmental Entities that are required
in order to permit the Company or such subsidiary to conduct its business as
presently conducted, except where the failure to possess such Governmental
License or to have made such filing, application or registration would not,
individually or in the aggregate, have a Material Adverse Effect; all of the
Governmental Licenses are valid and in full force and effect, except where the
invalidity of such Governmental Licenses to be in full force and effect,
individually or in the aggregate, would not have a Material Adverse Effect; and
neither the Company nor any of its subsidiaries has received any notice of
proceedings relating to the revocation or modification of any such Governmental
Licenses which, individually or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would result in a Material Adverse
Effect;
(xiv) To the best of our knowledge, neither the Company nor any of its
subsidiaries is a party to or subject to any order, decree, agreement,
memorandum of understanding or similar arrangement with, or a commitment letter,
supervisory letter or similar submission to, any Governmental Entity charged
with the supervision or regulation of depository
29
institutions or engaged in the insurance of deposits (including the FDIC) or the
supervision or regulation of it or any of its subsidiaries and neither the
Company nor any of its subsidiaries has been advised by any such Governmental
Entity that such Governmental Entity is contemplating issuing or requesting (or
is considering the appropriateness of issuing or requesting) any such order,
decree, agreement, memorandum of understanding, commitment letter, supervisory
letter or similar submission;
(xv) The Company is not, and after giving effect to the offering and
sale of the Shares, will not be, an "investment company" or an entity
"controlled" by an "investment company", as such terms are defined in the
Investment Company Act;
(xvi) The documents incorporated by reference in the Prospectus (other
than the financial statements and related schedules therein, as to which such
counsel need express no opinion), when they were filed with the Commission,
complied as to form in all material respects with the requirements of the
Exchange Act and the rules and regulations of the Commission thereunder; and
they have no reason to believe that any such documents, when such documents were
so filed, contained an untrue statement of a material fact or omitted to state a
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made when such documents were so filed,
not misleading;
(xvii) The Registration Statement and the Prospectus and any further
amendments and supplements thereto made by the Company prior to such Time of
Delivery (other than the financial statements and related schedules therein, as
to which such counsel need express no opinion) comply as to form in all material
respects with the requirements of the Act and the rules and regulations
thereunder; and such counsel does not know of any contracts or other agreements
of a character required to be incorporated by reference into the Prospectus or
required to be filed as an exhibit to the Registration Statement or required to
be described in the Registration Statement or Prospectus which are not filed or
incorporated by reference or described as required; in addition, although such
counsel does not assume any responsibility for the accuracy, completeness or
fairness of the statements contained in the Registration Statement or the
Prospectus, except for those referred to in the opinion in subsection (xi), they
have no reason to believe that, as of its effective date, the Registration
Statement or any further amendment thereto made by the Company prior to such
Time of Delivery (other than the financial statements and related schedules
therein, as to which such counsel need express no opinion) 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 or that, as of its
date, the Prospectus or any further amendment or supplement thereto made by the
Company prior to such Time of Delivery (other than the financial statements and
related schedules therein, as to which such counsel need express no opinion)
contained an untrue statement of a material fact or omitted to state a material
fact necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading or that, as of such Time of Delivery,
either the Registration Statement or the Prospectus or any further amendment or
supplement thereto made by the Company prior to such Time of Delivery (other
than the financial statements and related
30
schedules therein, as to which such counsel need express no opinion) contains an
untrue statement of a material fact or omits to state a material fact necessary
to make the statements therein, in the light of the circumstances under which
they were made, not misleading; and they do not know of any amendment to the
Registration Statement required to be filed.