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PROVIDENT FINANCIAL GROUP, INC.
(an Ohio corporation)
THE PROVIDENT BANK
(an Ohio state-chartered bank)
PFGI CAPITAL CORPORATION
(a Maryland corporation)
6,000,000 PRIDES'sm'
consisting of
6,000,000 Income PRIDES'sm'
UNDERWRITING AGREEMENT
Dated: June 6, 2002
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TABLE OF CONTENTS
Section 1. Representations and Warranties.....................................................................3
(a) Representations and Warranties by the Provident Companies..................................................3
(1) Compliance with Registration Requirements.............................................................3
(2) Incorporated Documents................................................................................3
(3) Independent Accountants...............................................................................4
(4) Financial Statements..................................................................................4
(5) No Material Adverse Change in Business................................................................4
(6) Good Standing of the Company..........................................................................4
(7) Good Standing of the Bank.............................................................................5
(8) Good Standing of the REIT.............................................................................5
(9) Qualification and Taxation of the REIT................................................................5
(10) Good Standing of Corporate Subsidiaries...............................................................5
(11) Foreign Qualifications................................................................................6
(12) Capitalization of the Company and the REIT............................................................6
(13) Capitalization of the Bank............................................................................6
(14) Authorization of Capital Stock........................................................................6
(15) Authorization and Description of Ordinary Shares......................................................6
(16) Authorization of the REIT Preferred Stock.............................................................6
(17) Authorization of the Bank Preferred Stock.............................................................7
(18) Authorization of the PRIDES...........................................................................7
(19) Authorization of the Forward Purchase Contract Agreement..............................................7
(20) Authorization of the Pledge Agreement.................................................................7
(21) Authorization of this Agreement.......................................................................7
(22) Authorization of the Remarketing Agreement............................................................7
(23) Descriptions of the Securities........................................................................8
(24) Descriptions of the Operative Agreements..............................................................8
(25) Absence of Defaults and Conflicts.....................................................................8
(27) Absence of Proceedings................................................................................9
(28) Accuracy of Exhibits..................................................................................9
(30) Absence of Further Requirements.......................................................................9
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(31) Possession of Licenses and Permits....................................................................9
(33) Investment Company Act...............................................................................10
(34) Environmental Laws...................................................................................10
(35) Compliance with Laws.................................................................................10
(36) Compliance with Banking Laws and Regulations.........................................................11
(37) Distribution of Documents............................................................................11
(38) Stabilization........................................................................................11
(b) Officers' Certificates..................................................................................11
Section 2. Sale and Delivery to the Underwriters; Closing....................................................12
(a) Initial Securities......................................................................................12
(b) Option Securities.......................................................................................12
(c) Pledge of Securities....................................................................................12
(d) Payment.................................................................................................12
(e) Denominations; Registration.............................................................................13
Section 3. Covenants of the Provident Companies..............................................................13
(a) Compliance with Securities Regulations and Commission Requests..........................................13
(b) Filing of Amendments....................................................................................13
(c) Delivery of Registration Statements.....................................................................13
(d) Delivery of Prospectus..................................................................................14
(e) Continued Compliance with Securities Laws...............................................................14
(f) Blue Sky Qualification..................................................................................14
(g) Use of Proceeds.........................................................................................14
(h) Restriction on Sale of Ordinary Shares..................................................................15
(i) Reporting Requirements..................................................................................15
(j) Earnings................................................................................................15
(k) Reasonable Inquiries; Information.......................................................................15
(l) Reserve of Ordinary Shares..............................................................................15
(m) Listing.................................................................................................16
Section 4. Payment of Expenses...............................................................................16
(a) Expenses................................................................................................16
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(b) Termination of Agreement................................................................................16
Section 5. Conditions of Underwriters' Obligations...........................................................16
(a) Effectiveness of Registration Statement.................................................................16
(b) Opinions of Counsel for the Provident Companies.........................................................17
(c) Opinion of Counsel for Forward Purchase Contract Agent..................................................17
(d) Opinion of Counsel for the Underwriters.................................................................18
(e) Officers' Certificate...................................................................................18
(f) Accountant's Comfort Letter.............................................................................18
(g) Ratings.................................................................................................18
(h) Lock-up Agreements......................................................................................19
(i) Listing.................................................................................................19
(i) Conditions to Purchase of Option Securities.............................................................19
(1) Officers' Certificate................................................................................19
(2) Opinion of Counsel for Provident Companies...........................................................19
(3) Opinion of Counsel for Forward Purchase Contract Agent...............................................19
(4) Opinion of Counsel for Underwriters..................................................................19
(5) Bring-down Comfort Letter............................................................................19
(6) No Downgrading.......................................................................................20
Section 6. Indemnification...................................................................................20
(a) Indemnification of each Underwriter.....................................................................20
(b) Indemnification of Provident Companies, Directors and Officers..........................................21
(c) Actions against Parties; Notification...................................................................21
Section 7. Contribution......................................................................................22
Section 8. Default of any Underwriter........................................................................23
Section 9. Representations, Warranties and Agreements to Survive Delivery....................................24
Section 10. Termination.......................................................................................24
(a) Underwriting Agreement..................................................................................24
(b) Liabilities.............................................................................................25
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Section 11. Notices...........................................................................................25
Section 12. Parties...........................................................................................25
Section 13. Governing Law and Time............................................................................25
Section 14. Counterparts......................................................................................25
Section 15. Effect of Headings................................................................................25
SCHEDULE A
SCHEDULE B
SCHEDULE C
Exhibit A
Exhibit B
Exhibit C
Exhibit D
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June 6, 2002
XXXXXXX XXXXX & CO.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
As Representative of the several Underwriters named in Schedule B
4 World Financial Center
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Provident Financial Group, Inc., a corporation organized under the laws of the
State of Ohio (the "Company") and PFGI Capital Corporation, a corporation
organized under the laws of the State of Maryland (the "REIT") propose to sell
to the several underwriters named in Schedule B hereto (each, an "Underwriter"
and collectively, the "Underwriters"), for whom Xxxxxxx Lynch, Pierce, Xxxxxx &
Xxxxx Incorporated is acting as representative (the "Representative") 6,000,000
PRIDES'sm' or the "Initial Securities," which will consist of units (referred to
as "Income PRIDES") with a stated amount per Income PRIDES of $25 (the "Stated
Amount") each unit comprised of (a) a forward purchase contract (each, a
"Forward Purchase Contract" and collectively, the "Forward Purchase Contracts")
under which the holder will purchase from the Company on August 17, 2005 a
number of ordinary shares, no par value, of the Company (the "Ordinary Shares")
equal to the Settlement Rate as set forth in the Forward Purchase Contract
Agreement (as defined below), and (b) one share of Series A Non-Cumulative
Preferred Stock of the REIT with a liquidation preference of $25 (the "REIT
Preferred Stock") issued pursuant to the amended and restated articles of
incorporation of the REIT and the board resolution, dated as of June 5, 2002, as
reflected in the minutes thereof, and with respect to the grant by the Company
and the REIT to the Representative of an option to purchase up to an additional
900,000 PRIDES'sm' to cover over-allotments (the "Option Securities" and,
together with the Initial Securities, being referred to herein as the
"Securities"). Upon the occurrence of an Automatic Exchange, each share of
REIT Preferred Stock will be automatically exchanged for one share of Series A
preferred stock of The Provident Bank, an Ohio state-chartered member bank of
the Federal Reserve System (the "Bank") with a liquidation preference of $25
(the "Bank Preferred Stock"). The REIT Preferred Stock that will initially
constitute a component of the Securities and the Bank Preferred Stock that
may constitute a component of the Securities are hereinafter referred to as
the "Underlying Shares." The Company and the REIT are referred to herein as
the "Co-Issuers." The Company, the Bank and the REIT are sometimes referred
to herein as the "Provident Companies."
In accordance with the terms of the forward purchase contract agreement, to be
dated as of June 12, 2002 (the "Forward Purchase Contract Agreement"), by and
among the Company, the Bank, the REIT and X.X. Xxxxxx Trust Company, National
Association, a banking corporation organized and existing under the laws of the
United States as forward purchase contract agent (the "Forward Purchase Contract
Agent"), the Underlying Shares will be pledged by the Forward Purchase Contract
Agent, on behalf of the holders of the Securities, to X.X. Xxxxxx Trust Company,
National Association, as collateral agent (the "Collateral Agent"), pursuant to
the Pledge Agreement, to be dated as of June 12, 2002 (the "Pledge Agreement"),
among the Company, the Forward Purchase Contract Agent and X.X. Xxxxxx Trust
Company, National
Association, as the Collateral Agent, Custodial Agent and Securities
Intermediary to secure such holders' obligation to purchase Ordinary Shares
under the Forward Purchase Contracts. Pursuant to a remarketing agreement (the
"Remarketing Agreement") to be dated as of June 12, 2002 , among the Co-Issuers,
the Bank, the Forward Purchase Contract Agent and Xxxxxxx Lynch, Pierce, Xxxxxx
& Xxxxx Incorporated, the REIT Preferred Stock or the Bank Preferred Stock may
be remarketed, subject to certain terms and conditions.
The Co-Issuers have filed with the Securities and Exchange Commission
(the "Commission") a registration statement on Form S-3 (No. 333-88446;
333-88446-01), for the registration of the Securities and certain other
securities described therein under the Securities Act of 1933, as amended (the
"1933 Act"), and the offering thereof from time to time in accordance with Rule
415 of the rules and regulations of the Commission under the 1933 Act (the "1933
Act Regulations"). Such registration statement has been declared effective by
the Commission and, in the form in which it became effective, including the
exhibits and schedules thereto, if any, is referred to herein as the
"Registration Statement" and the final prospectus relating to the offering of
the Securities, as filed with the Commission pursuant to Rule 424(b) of the 1933
Act Regulations, are collectively referred to herein as the "Prospectus;"
provided, however, that all references to the "Registration Statement" and the
"Prospectus" shall also be deemed to include all documents incorporated therein
by reference pursuant to the Securities Exchange Act of 1934, as amended (the
"1934 Act"), prior to the date of this Agreement; provided, further, that if the
Co-Issuers file a registration statement with the Commission pursuant to Rule
462(b) of the 1933 Act Regulations (the "Rule 462(b) Registration Statement"),
then, after such filing, all references to "Registration Statement" shall also
be deemed to include the Rule 462(b) Registration Statement. For purposes of
this Agreement, all references to the Registration Statement, Prospectus or to
any amendment or supplement to any of the foregoing shall be deemed to include
any copy filed with the Commission pursuant to its Electronic Data Gathering,
Analysis and Retrieval system ("XXXXX").
All references in this Agreement to financial statements and schedules
and other information which is "contained," "included" or "stated" (or other
references of like import) in the Registration Statement or Prospectus shall be
deemed to mean and include all such financial statements and schedules and other
information which is incorporated by reference in the Registration Statement or
Prospectus, prior to the execution of this Agreement; and all references in this
Agreement to amendments or supplements to the Registration Statement or
Prospectus shall be deemed to mean and include the filing of any document under
the 1934 Act which is incorporated by reference in the Registration Statement or
Prospectus, after the execution of this Agreement.
The Remarketing Agreement, the Forward Purchase Contract Agreement, the
Pledge Agreement and this Agreement are referred to collectively as the
"Operative Agreements."
The Co-Issuers understand that the Underwriters propose to make a
public offering of the Securities as soon as the Underwriters deem advisable
after this Agreement has been executed and delivered.
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Section 1 Representations and Warranties.
(a) Representations and Warranties by the Provident Companies. The
Company, the Bank and the REIT, jointly and severally, represent and warrant to
each Underwriter as of the date hereof, as of the Closing Time and, if
applicable, as of each Date of Delivery (as defined in Section 2(b)) (in each
case, a "Representation Date"), as follows:
(1) Compliance with Registration Requirements. The Company and
the REIT meet the requirements for use of Form S-3 under the 1933 Act.
The Registration Statement (including any Rule 462(b) Registration
Statement) has become effective under the 1933 Act and no stop order
suspending the effectiveness of the Registration Statement (or such
Rule 462(b) Registration Statement) has been issued under the 1933 Act
and no proceedings for that purpose have been instituted or are pending
or, to the knowledge of the Company and the REIT, are contemplated by
the Commission, and any request on the part of the Commission for
additional information with respect to the Registration Statement (or
any document incorporated therein by reference pursuant to the 0000
Xxx) has been complied with.
At the respective times the Registration Statement (including
any Rule 462(b) Registration Statement) and any post-effective
amendments thereto became effective and at each Representation Date,
the Registration Statement (including any Rule 462(b) Registration
Statement) and any amendments thereto complied and will comply in all
material respects with the requirements of the 1933 Act and the 1933
Act Regulations and did not and will 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 not misleading. At
the date of the Prospectus, at the Closing Time and at each Date of
Delivery, if any, neither the Prospectus nor any amendments and
supplements thereto included or will include an untrue statement of a
material fact or will omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances under
which they were made, not misleading. Notwithstanding the foregoing,
the representations and warranties in this subsection shall not apply
to statements in or omissions from the Registration Statement (or any
amendment thereto) or the Prospectus made in reliance upon and in
conformity with information furnished to the Company and the REIT in
writing by the Representative expressly for use in the Registration
Statement (or any amendment thereto) or the Prospectus (or any
amendment or supplement thereto).
Each prospectus filed pursuant to Rule 424 under the 1933 Act
complied when so filed in all material respects with the 1933 Act
Regulations and the Prospectus delivered to the Underwriters for use in
connection with the offering of the Securities will, at the time of
such delivery, be identical to any electronically transmitted copies
thereof filed with the Commission pursuant to XXXXX, except to the
extent permitted by Regulation S-T.
(2) Incorporated Documents. The documents incorporated by
reference in the Registration Statement and the Prospectus, (the
"Incorporated Documents"), at the time they were or hereafter are filed
with the Commission, complied and will comply in all
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material respects with the requirements of the 1934 Act and the rules
and regulations of the Commission thereunder (the "1934 Act
Regulations"), and, when read together with the other information in
the Prospectus, at the date of the Prospectus and at the Closing Time
(and if any Option Securities are purchased, at the Date of Delivery),
did not and will 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 not misleading.
(3) Independent Accountants. The accountants who certified the
financial statements and supporting schedules included in the
Registration Statement and the Prospectus are independent public
accountants as required by the 1933 Act and the 1933 Act Regulations.
(4) Financial Statements. The financial statements included in
or incorporated into the Registration Statement and the Prospectus,
together with the related schedules and notes, present fairly the
financial position of the Company and its consolidated subsidiaries and
the Bank and its consolidated subsidiaries at the dates indicated and
the statement of operations, stockholders' equity and cash flows of the
Company and its consolidated subsidiaries and the Bank and its
consolidated subsidiaries for the periods specified and the pro forma
balance sheet of the REIT presents fairly the financial position of the
REIT; said financial statements have been prepared in conformity with
generally accepted accounting principles ("GAAP") applied on a
consistent basis throughout the periods involved, except as stated
therein. The supporting schedules incorporated by reference in the
Registration Statement and the Prospectus present fairly in accordance
with GAAP the information required to be stated in the Incorporated
Documents. The selected financial data included in the Prospectus
present fairly the information shown therein and have been compiled on
a basis consistent in all material respects with that of the audited
financial statements included in or incorporated by reference in the
Registration Statement and the Prospectus.
(5) No Material Adverse Change in Business. Since the
respective dates as of which information is given in the Registration
Statement and the Prospectus, except as otherwise stated therein, (A)
there has been no material adverse change or prospective material
adverse change in the business, management, financial position,
business prospects, stockholders equity or results of operations of the
Company and its respective subsidiaries considered as one enterprise,
the Bank and its respective subsidiaries considered as one enterprise
and the REIT, whether or not arising in the ordinary course of business
(a "Material Adverse Effect"), and (B) there have been no transactions
entered into by the Company and its respective subsidiaries, the Bank
and its respective subsidiaries and the REIT, other than those in the
ordinary course of business, which are material with respect to the
Company and its subsidiaries considered as one enterprise, the Bank and
its respective subsidiaries considered as one enterprise and the REIT
and there has been no dividend or distribution of any kind declared,
paid or made by the Company or the Bank on any class of its capital
stock.
(6) Good Standing of the Company. The Company has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of the State of Ohio and has corporate power and
authority necessary to own, lease and
4
operate its properties and to conduct its business as described in the
Prospectus and to enter into and perform its obligations under, or as
contemplated by, this Agreement and the Operative Agreements.
(7) Good Standing of the Bank. The Bank has been duly
organized and is validly existing as an entity in good standing under
the laws of the State of Ohio and has corporate power and authority
necessary to own, lease and operate its properties and to conduct its
business as described in the Prospectus and to enter into and perform
its obligations under, or as contemplated by, this Agreement and the
Operative Agreements.
(8) Good Standing of the REIT. The REIT has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of the State of Maryland with the power and authority to
own, lease and operate its properties and to conduct its business as
described in the Prospectus and to enter into and perform its
obligations under, or as contemplated by, this Agreement and the
Operative Agreements.
(9) Qualification and Taxation of the REIT. The organization
of the REIT and the REIT's proposed method of operation will enable the
REIT to meet the requirements for qualification and taxation as a real
estate investment trust under the Internal Revenue Code of 1986, as
amended (the "Code").
(10) Good Standing of Corporate Subsidiaries. Each Significant
Subsidiary (as such term is defined in Rule 1-02 of Regulation S-X
promulgated under the 0000 Xxx) of the Company and the Bank has been
duly incorporated or formed and is validly existing as a corporation,
limited partnership, limited liability company, business trust or
general partnership, as the case may be, under the laws of its
jurisdiction of organization and is in good standing under the laws of
its jurisdiction of organization, has power (corporate or otherwise)
and the necessary authority to own, lease and operate its properties
and to conduct its business as described in the Prospectus or in the
Incorporated Documents. Except as otherwise disclosed in the Prospectus
or in the Incorporated Documents, all of the issued shares of capital
stock of each Significant Subsidiary of the Company and the Bank, which
is a corporation, have been duly authorized and validly issued, and are
fully paid and non-assessable, and (except for directors' qualifying
shares and as described generally in the Prospectus and in the
Incorporated Documents) are owned directly or indirectly by the Company
or the Bank, as applicable, free and clear of all liens, encumbrances,
equities or claims, in each case with such exceptions, individually or
in the aggregate, as would not have a Material Adverse Effect. The
partnership interests, membership interests and shares of beneficial
interest of each Significant Subsidiary of the Company and the Bank,
which is a partnership, limited liability company or business trust
have been validly issued in accordance with applicable law and the
partnership agreement, limited liability agreement or declaration of
trust, as applicable, of such subsidiary, and (except as described
generally in the Prospectus or in the Incorporated Documents) are owned
directly or indirectly by the Company or the Bank, as applicable, free
and clear of all liens, encumbrances, equities or claims, except, in
the case of each subsidiary of the Company or the Bank, for liens,
encumbrances, equities or claims which individually or in the aggregate
would not be material to the Company's or the Bank's
5
ownership of such Significant Subsidiary or to the Company's or the
Bank's exercise of its rights with respect to such Significant
Subsidiary.
(11) Foreign Qualifications. The Provident Companies and each
of their respective Significant Subsidiaries is duly qualified as a
foreign corporation to transact business and is in good standing in
each jurisdiction in which such qualification is required, whether by
reason of the ownership or leasing of property or the conduct of
business, except where the failure to so qualify or to be in good
standing, in the reasonable judgment of the Provident Companies, would
not result in a Material Adverse Effect.
(12) Capitalization of the Company and the REIT. The
authorized, issued and outstanding shares of capital stock of the
Company and the REIT in each case are as set forth in the Prospectus in
the columns entitled "Actual" under the caption "Capitalization"
(except for subsequent issuances, if any, pursuant to this Agreement,
pursuant to reservations, agreements or employee benefit plans referred
to in the Prospectus or in the Incorporated Documents or pursuant to
the exercise of convertible securities or options referred to in the
Prospectus or in the Incorporated Documents).
(13) Capitalization of the Bank. The authorized, issued and
outstanding shares of capital stock of the Bank are as set forth in the
Bank Offering Circular in the column entitled "Actual" under the
caption "Capitalization" (except for subsequent issuances, if any,
pursuant to this Agreement, pursuant to reservations, agreements or
employee benefit plans referred to in the Bank Offering Circular or in
the Incorporated Documents or pursuant to the exercise of convertible
securities or options referred to in the Bank Offering Circular or in
the Incorporated Documents).
(14) Authorization of Capital Stock. The shares of issued and
outstanding capital stock of the Provident Companies and their
respective Significant Subsidiaries have been duly authorized and
validly issued and are fully paid and non-assessable.
(15) Authorization and Description of Ordinary Shares. The
description of the Ordinary Shares issuable pursuant to the Forward
Purchase Contract set forth in the Prospectus conforms in all material
respects to the rights set forth in the instruments defining the same.
The Ordinary Shares issuable pursuant to the Forward Purchase Contract
Agreement have been duly authorized and reserved for issuance by the
Company and, when issued and delivered in accordance with the
provisions of the Forward Purchase Contract Agreement, will be validly
issued and will be fully paid and non-assessable; and the issuance of
such shares upon such exchange will not be subject to the preemptive or
other similar rights of any securityholder of the Company.
(16) Authorization of the REIT Preferred Stock. The REIT
Preferred Stock has been duly authorized and when issued and delivered
against payment of the purchase price for the Income PRIDES of which
they are a part as provided in this Agreement, will be validly issued,
fully paid and non-assessable and will not be issued in violation of
the preemptive or other similar rights of any securityholder of the
REIT.
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(17) Authorization of the Bank Preferred Stock. The Bank
Preferred Stock has been duly authorized and reserved for issuance and
when issued and delivered in exchange for the REIT Preferred Stock upon
the occurrence of an Automatic Exchange event (as defined in the
Forward Purchase Contract Agreement) will be validly issued, fully paid
and non-assessable and will not be issued in violation of the
preemptive or other similar rights of any securityholder of the Bank.
(18) Authorization of the PRIDES. The Income PRIDES have been
duly authorized and executed by the Company and the REIT and, when duly
authenticated in accordance with the terms of the Forward Purchase
Contract Agreement and delivered to and paid for by the Underwriters in
accordance with the terms of this Agreement, will constitute valid and
binding obligations of the Company and the REIT, enforceable against
the Company and the REIT in accordance with their terms, except as the
enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium, fraudulent conveyance or other similar laws
relating to or affecting creditors' rights generally or by general
equitable principles (regardless of whether enforceability is
considered in a proceeding at law or in equity). The issuance of the
PRIDES is not subject to preemptive or other similar rights.
(19) Authorization of the Forward Purchase Contract Agreement.
The Forward Purchase Contract Agreement has been duly authorized by the
Company and the REIT and, when validly executed and delivered by the
Company and the REIT and assuming due authorization, execution and
delivery of the Forward Purchase Contract Agreement by the Forward
Purchase Contract Agent, will constitute a valid and binding agreement
of the Company, enforceable against the Company and the REIT in
accordance with its terms, except as the enforcement thereof may be
limited by bankruptcy, insolvency, reorganization, moratorium,
fraudulent conveyance or other similar laws relating to or affecting
creditors' rights generally or by general equitable principles
(regardless of whether enforceability is considered in a proceeding at
law or in equity).
(20) Authorization of the Pledge Agreement. The Pledge
Agreement has been duly authorized by the Company and, when validly
executed and delivered by the Company and assuming due authorization,
execution and delivery of the Pledge Agreement by the Collateral Agent
and the Forward Purchase Contract Agent, will constitute a valid and
binding agreement of the Company, enforceable against the Company in
accordance with its terms, except as the enforcement thereof may be
limited by bankruptcy, insolvency, reorganization, moratorium,
fraudulent conveyance or other similar laws relating to or affecting
creditors' rights generally or by general equitable principles
(regardless of whether enforceability is considered in a proceeding at
law or in equity).
(21) Authorization of this Agreement. This Agreement has been
duly authorized, executed and delivered by each of the Provident
Companies.
(22) Authorization of the Remarketing Agreement. The
Remarketing Agreement have been duly authorized, executed and delivered
by the Company, the Bank and the REIT and, when validly executed and
delivered by the Company, the Bank and
7
the REIT, will constitute a valid and binding agreement of the Company,
the Bank and the REIT enforceable against the Company, the Bank and the
REIT in accordance with its terms, except as the enforcement thereof
may be limited by bankruptcy, insolvency, reorganization, moratorium,
fraudulent conveyance or other similar laws relating to or affecting
creditors' rights generally or by general equitable principles
(regardless of whether enforceability is considered in a proceeding at
law or in equity).
(23) Descriptions of the Securities. The description of the
Securities set forth in the Prospectus under "Summary" and "Description
of the Securities" is correct in all material respects.
(24) Descriptions of the Operative Agreements. The
descriptions of the Operative Agreements, set forth in the Prospectus
are correct in all material respects and will be in substantially the
form filed or incorporated by reference, as the case may be, as an
exhibit to the Registration Statement.
(25) Absence of Defaults and Conflicts. Neither the Company,
the Bank, the REIT nor any of their respective Significant Subsidiaries
is in violation of its charter or by-laws or other constituting or
organizational document or in default in any material respect in the
due performance or observance of any obligation, agreement, covenant or
condition contained in any contract, indenture, mortgage, deed of
trust, loan or credit agreement, note, lease or other agreement or
instrument to which the Provident Companies or any of their respective
Significant Subsidiaries is a party or by which it or any of them may
be bound, or to which any of the property or assets of the Provident
Companies or any of their respective Significant Subsidiaries is
subject (collectively, "Agreements and Instruments") except for such
defaults that would not result in a Material Adverse Effect; and the
execution, delivery and performance of this Agreement, the Securities
and each of the Operative Agreements and any other agreement or
instrument entered into or issued or to be entered into or issued by
the Provident Companies in connection with the transactions
contemplated hereby or thereby or in the Registration Statement and the
Prospectus and the consummation of the transactions contemplated herein
and in the Prospectus (including the issuance and sale of the
Securities and the use of the proceeds from the sale of the Securities
as described in the Prospectus under the caption "Use of Proceeds" and
the issuance of the Ordinary Shares issuable in accordance with the
Forward Purchase Contract Agreement) and compliance by each of the
Provident Companies with its obligations hereunder, the Securities and
each of the Operative Agreements do not, whether with or without the
giving of notice or passage of time or both, conflict with or
constitute a breach of, or default or Repayment Event (as defined
below) under, or result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of the Provident
Companies or any of their respective Significant Subsidiaries pursuant
to, the Agreements and Instruments (except for such conflicts, breaches
or defaults or liens, charges or encumbrances that would not result in
a Material Adverse Effect), nor will such action result in any
violation of the provisions of the charter or by-laws or other
constituting or organizational instrument as in effect on the date
hereof of the Provident Companies or any of their respective
Significant Subsidiaries or any applicable law, statute, rule,
regulation, judgment, order, writ or decree of any government,
government instrumentality or court, domestic or
8
foreign, having jurisdiction over the Provident Companies or any of
their respective Significant Subsidiaries or any of their assets,
properties or operations, except for any such violation of any
applicable law, statute, rule, regulation, judgment, order, writ or
decree of law which would not result in a Material Adverse Effect. As
used herein, a "Repayment Event" means any event or condition which
gives the holder of any note, debenture or other evidence of
indebtedness (or any person acting on such holder's behalf) the right
to require the repurchase, redemption or repayment of all or a portion
of such indebtedness by the Provident Companies or any of their
respective Significant Subsidiaries.
(26) Absence of Proceedings. Except as disclosed in the
Registration Statement and the Prospectus or in the Incorporated
Documents, there is no action, suit, proceeding, inquiry or
investigation before or brought by any court or governmental agency or
body, domestic or foreign, now pending, or, to the knowledge of the
Provident Companies, threatened, against or affecting the Provident
Companies or any of their respective Significant Subsidiaries, which,
singly or in the aggregate, would reasonably be expected to result in a
Material Adverse Effect, or which would reasonably be expected to
materially and adversely affect the consummation of the transactions
contemplated in this Agreement or the performance by the Provident
Companies of their obligations hereunder.
(27) Accuracy of Exhibits. All of the descriptions of
contracts or other documents contained or incorporated by reference in
the Registration Statement and the Prospectus are accurate and complete
descriptions in all material respects of such contracts or other
documents.
(28) Absence of Further Requirements. No filing with, or
authorization, approval, consent, license, order, registration,
qualification or decree of, any court or governmental authority or
agency is necessary or required for the performance by the Provident
Companies of their obligations hereunder or for the entry into the
Forward Purchase Contracts underlying the Income PRIDES, in connection
with the offering, issuance or sale of the Securities hereunder, the
issuance of shares of Ordinary Shares pursuant to the Forward Purchase
Contract Agreement or the consummation of the transactions contemplated
by this Agreement, or for the due execution, delivery or performance of
the Agreement or the Operative Agreements, except such as have been
already obtained or as may be required under the 1933 Act or the 1933
Act Regulations or state securities laws.
(29) Possession of Licenses and Permits. The Provident
Companies and their respective Significant Subsidiaries possess such
permits, licenses, approvals, consents and other authorizations
(collectively, "Governmental Licenses") issued by the appropriate
federal, state, local or foreign regulatory agencies or bodies
necessary to conduct the business now operated by them; the Provident
Companies and their respective Significant Subsidiaries are in
compliance with the terms and conditions of all such Governmental
Licenses, except in any such case where the failure to so possess or to
comply would not, singly 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
9
of such Governmental Licenses or the failure of such Governmental
Licenses to be in full force and effect would not have a Material
Adverse Effect; and neither the Provident Companies nor any of their
respective Significant 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.
(30) Investment Company Act. Each of the Provident Companies
is not, and upon the issuance and sale of the Securities as herein
contemplated and the application of the net proceeds therefrom as
described in the Prospectus 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 "1940
Act").
(31) Environmental Laws. To the best of the Company's
knowledge, there has been no storage, disposal, generation,
manufacture, refinement, transportation, handling or treatment of toxic
wastes, medical wastes, hazardous wastes or hazardous substances by the
Company or any of its Significant Subsidiaries (or, to the knowledge of
the Company, any of their predecessors in interest) at, upon or from
any of the properties now or previously owned or leased by the Company
or its Significant Subsidiaries in violation of any applicable law,
ordinance, rule, regulation, order, judgment, decree or permit or which
would require remedial action under any applicable law, ordinance,
rule, regulation, order, judgment, decree or permit, or which would be
reasonably likely to result in a claim by a third party against the
Company or its subsidiaries, except to the extent that any violation,
remedial action or third party claim would not be reasonably expected,
singularly or in the aggregate with all such violations, remedial
actions and third party claims, a Material Adverse Effect and there has
been no material spill, discharge, leak, emission, injection, escape,
dumping or release of any kind onto such property or into the
environment surrounding such property of any toxic wastes, medical
wastes, solid wastes, hazardous wastes or hazardous substances due to
or caused by the Company or any of its Significant Subsidiaries or with
respect to which the Company or any of its Significant Subsidiaries
have knowledge, except for any such spill, discharge, leak, emission,
injection, escape, dumping or release (a "Release") except to the
extent that any Release would not be reasonably expected, singularly or
in the aggregate with all such Releases, to result in a Material
Adverse Effect. The terms "hazardous wastes," "toxic wastes,"
"hazardous substances" and "medical wastes" shall have the meanings
specified in any applicable local, state, federal and foreign laws or
regulations with respect to protection of human health, the environment
or natural resources.
(32) Compliance with Laws. Each Significant subsidiary of the
Company or the Bank which is required to be registered as an investment
adviser or broker-dealer is and has been in compliance with all
applicable laws and governmental rules and regulations, as may be
applicable to its investment advisory or broker-dealer business, except
to the extent that such non-compliance would not reasonably be expected
to result in a Material Adverse Effect. Each Significant Subsidiary of
the Bank which is required to be registered as a broker-dealer is a
member in good standing of the National Association of Securities
Dealers, Inc., and is not in default with respect to any judgment,
order, writ, injunction, decree, demand or assessment issued by any
court or any foreign,
00
xxxxxxx, xxxxx, xxxxxxxxx or other governmental agency, board,
commission, bureau, instrumentality or department, domestic or foreign,
or by any self-regulatory authority relating to any aspect of its
broker-dealer business, which is reasonably likely to give rise to an
affirmative answer to any of the questions in Item 11 of the Form BD of
such broker-dealer.
(33) Compliance with Banking Laws and Regulations. The Company
and the Bank and each of its respective Significant Subsidiaries are in
compliance in all material respects, as requested, with all laws
administered by and regulations of the Board of Governors of the
Federal Reserve System, the Federal Deposit Insurance Corporation, the
Ohio Division of Financial Institutions and any other federal or state
bank regulatory authority with jurisdiction over the Company and the
Bank or any of its respective Significant Subsidiaries (the "Bank
Regulatory Authorities"), other than where such failures to comply
would not have a Material Adverse Effect for either the Company or the
Bank. Neither the Company, the Bank nor any of its respective
Significant Subsidiaries is a party to any written agreement or
memorandum of understanding with, or a party to any commitment letter
or similar undertaking to, or is subject to any order or directive by,
or is a recipient of any extraordinary supervisory letter from, or has
adopted any board resolutions at the request of, any Bank Regulatory
Authority which materially restricts the conduct of its business, or
indicates that it is not "well-capitalized" under regulations issued by
the Federal Reserve Board (other than as described in the Prospectus),
nor have any of them been advised by any Bank Regulatory Authority that
it is contemplating issuing or requesting (or is considering the
appropriateness of issuing or requesting) any such order, decree,
agreement, memorandum of understanding, extraordinary supervisory
letter, commitment letter or similar submission, or any such board
resolutions.
(34) Distribution of Documents. The Provident Companies have
not distributed and, prior to the later to occur of (i) the Closing
Date and (ii) completion of the distribution of the Securities, they
will not distribute any offering materials in connection with the
offering and sale of the Securities other than the Registration
Statement and the final prospectus or other materials, if any,
permitted by the 1933 Act.
(35) Stabilization. The Provident Companies have not taken and
will not take, directly or indirectly, any action designed to, or that
might be reasonably expected to, cause or result, under the Exchange
Act or otherwise, in stabilization or manipulation of the price of any
security of the Provident Companies to facilitate the sale or resale of
such Securities.
(b) Officers' Certificates. Any certificate signed by any
officer of any of the Provident Companies or any of their respective Significant
Subsidiaries and delivered to the Representative or to counsel for the
Underwriters in connection with the offering of the Securities shall be deemed a
representation and warranty by the applicable Provident Companies or such
subsidiary, as the case may be, to each Underwriter as to the matters covered
thereby on the date of such certificate and, unless subsequently amended or
supplemented, at each Representation Date subsequent thereto.
11
Section 2 Sale and Delivery to the Underwriters; Closing.
(a) Initial Securities. On the basis of the
representations, warranties and agreements herein contained and subject to the
terms and conditions herein set forth, the Co-Issuers agree to sell to each
Underwriter, severally and not jointly, and each Underwriter, severally and not
jointly, agrees to purchase from the Co-Issuers, at the price per security set
forth in Schedule A, the number of Initial Securities set forth opposite such
Underwriter's name in Schedule B hereto, plus any purchase pursuant to the
provisions of Section 8 hereof.
(b) Option Securities. In addition, on the basis of the
representations, warranties and agreements herein contained and subject to the
terms and conditions herein set forth, the Co-Issuers hereby grants an option to
the Representative to purchase at its election up to an additional 900,000
PRIDES, consisting solely of Income PRIDES, at the price per Security set forth
in Schedule A. The option hereby granted will expire 30 days after the date
hereof and may be exercised in whole or in part from time to time only for the
purpose of covering over-allotments which may be made in connection with the
offering and distribution of the Initial Securities upon notice by the
Representative to the Co-Issuers setting forth the number of Option Securities
as to which the Representative is then exercising the option and the time and
date of payment and delivery for such Option Securities. Any such time and date
of delivery (a "Date of Delivery") shall be determined by the Representative,
but shall not be later than seven full business days after the exercise of said
option, nor in any event prior to the Closing Time, as hereinafter defined.
(c) Pledge of Securities. The REIT Preferred Stock will
be pledged with the Collateral Agent to secure the obligations of holders of the
Income PRIDES to purchase Ordinary Shares under the Forward Purchase Contracts.
Such pledge shall be effected by the transfer to the Collateral Agent of the
REIT Preferred Stock at the Closing Time and appropriate Date of Delivery, if
any, in accordance with the Pledge Agreement.
(d) Payment. Payment of the purchase price for, and
delivery of certificates for, the Initial Securities shall be made at the
offices of Shearman and Sterling, at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, XX
00000-0000, or at such other place as shall be agreed upon by the Representative
and the Co-Issuers, at 10:00 A.M. (Eastern time) on the third (fourth, if the
pricing occurs after 4:30 P.M. (Eastern time) on any given day) business day
after the date hereof, or such other time not later than ten business days after
such date as shall be agreed upon by the Representative and the Co-Issuers (such
time and date of payment and delivery being herein called "Closing Time").
In addition, in the event that any or all of the Option
Securities are purchased by the Representative, payment of the purchase price
for, and delivery of certificates for, such Option Securities shall be made at
the above-mentioned offices, or at such other place as shall be agreed upon by
the Representative and the Co-Issuers, on each Date of Delivery as specified in
the notice from the Representative to the Co-Issuers.
Payment shall be made to the REIT by wire transfer of
immediately available funds to a bank account designated by the REIT, against
delivery to each Underwriter of certificates for the Securities to be purchased
by it.
12
(e) Denominations; Registration. The Securities and
certificates for the Initial Securities and Option Securities, if any, shall be
in such denominations $25 or integral multiples thereof) and registered in such
names as the Representative may request in writing at least one full business
day prior to the Closing Time or the relevant Date of Delivery, as the case may
be. The certificates for the Initial Securities and Option Securities, if any,
will be made available for examination and packaging by the Representative in
the City of New York not later than 10:00 A.M. (Eastern time) on the business
day prior to the Closing Time or the relevant Date of Delivery, as the case may
be.
Section 3 Covenants of the Provident Companies. The Company,
the Bank, and the REIT, jointly and severally, covenant with the several
Underwriters as follows:
(a) Compliance with Securities Regulations and Commission
Requests. The Company and the REIT, subject to Section 3(b), will notify the
Representative immediately, and confirm the notice in writing, of (i) the
effectiveness of any post-effective amendment to the Registration Statement or
the filing of any supplement or amendment to the Prospectus, (ii) the receipt of
any comments from the Commission, (iii) any request by the Commission for any
amendment to the Registration Statement or any amendment or supplement to the
Prospectus or for additional information, and (iv) the issuance by the
Commission of any stop order suspending the effectiveness of the Registration
Statement or of the suspension of the qualification of the Securities for
offering or sale in any jurisdiction, or of the initiation or threatening of any
proceedings for any of such purposes. The Company and the REIT will promptly
effect the filings necessary pursuant to Rule 424. The Company and the REIT will
make every reasonable effort to prevent the issuance of any stop order and, if
any stop order is issued, to obtain the lifting thereof at the earliest possible
moment.
(b) Filing of Amendments. The Company and the REIT will give the
Representative notice of its intention to file or prepare any amendment to the
Registration Statement (including any filing under Rule 462(b) of the 1933 Act
Regulations) or any amendment, supplement or revision to either the prospectus
included in the Registration Statement at the time it became effective or to the
Prospectus, whether pursuant to the 1933 Act, the 1934 Act or otherwise, will
furnish each Underwriter with copies of any such documents a reasonable amount
of time prior to such proposed filing or use, as the case may be, and will give
each Underwriter a reasonable opportunity to comment on any such document prior
to such proposed filing or use, as the case may be.
(c) Delivery of Registration Statements. The Company and the REIT
have furnished or will deliver to the Representative and counsel for the
Underwriters, without charge, signed copies of the Registration Statement as
originally filed and of each amendment thereto (including exhibits filed
therewith or incorporated by reference therein and documents incorporated or
deemed to be incorporated by reference therein) and signed copies of all
consents and certificates of experts, and will also deliver to the
Representative and counsel for the Underwriters, without charge, a conformed
copy of the Registration Statement as originally filed and of each amendment
thereto (without exhibits). The Registration Statement and each amendment
thereto furnished to the Representative and counsel for the Underwriters will be
identical to any electronically transmitted copies thereof filed with the
Commission pursuant to XXXXX, except to the extent permitted by Regulation S-T.
13
(d) Delivery of Prospectus. The Company and the REIT will furnish
to the Representative, without charge, during the period when the Prospectus is
required to be delivered under the 1933 Act or the 1934 Act, such number of
copies of the Prospectus as the Representative may reasonably request. The
Prospectus and any amendments or supplements thereto furnished to the
Representative will be identical to any electronically transmitted copies
thereof filed with the Commission pursuant to XXXXX, except to the extent
permitted by Regulation S-T.
(e) Continued Compliance with Securities Laws. The Company and the
REIT will comply with the 1933 Act and the 1933 Act Regulations and the 1934 Act
and the 1934 Act Regulations so as to permit the completion of the distribution
of the Securities as contemplated in this Agreement and in the Registration
Statement and the Prospectus. If at any time when the Prospectus is required by
the 1933 Act or the 1934 Act to be delivered in connection with sales of the
Securities, any event shall occur or condition shall exist as a result of which
it is necessary, in the opinion of counsel for the Underwriters and for the
Company and the REIT, to amend the Registration Statement in order that the
Registration Statement will 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 not misleading or to amend or supplement the
Prospectus in order that the Prospectus will not include an untrue statement of
a material fact or omit to state a material fact necessary in order to make the
statements therein not misleading in the light of the circumstances existing at
the time it is delivered to a purchaser, or if it shall be necessary, in the
opinion of such counsel, at any such time to amend the Registration Statement or
amend or supplement the Prospectus in order to comply with the requirements of
the 1933 Act or the 1933 Act Regulations, the Company and the REIT will promptly
prepare and file with the Commission, subject to Section 3(b), such amendment or
supplement as may be necessary to correct such statement or omission or to make
the Registration Statement or the Prospectus comply with such requirements, and
the Company and the REIT will furnish to the Representative, without charge,
such number of copies of such amendment or supplement as the Representative may
reasonably request.
(f) Blue Sky Qualifications. The Company and the REIT will use
reasonable efforts, in cooperation with the Representative, to qualify the
Securities and the shares of Ordinary Shares issuable in accordance with the
Forward Purchase Contract Agreement for offering and sale under the applicable
securities laws of such states and other jurisdictions (domestic or foreign) as
the Representative may designate; provided, however, that the Company and the
REIT shall not be obligated to file any general consent to service of process or
to qualify as a foreign corporation or as a dealer in securities in any
jurisdiction in which it is not so qualified or to subject itself to taxation in
respect of doing business in any jurisdiction in which it is not otherwise so
subject. In each jurisdiction in which the Securities or such shares of Ordinary
Shares issuable in accordance with the Forward Purchase Contract Agreement have
been so qualified, the Company and the REIT will file such statements and
reports as may be required by the laws of such jurisdiction to continue such
qualification in effect for so long as may be required in connection with the
distribution of the Securities.
(g) Use of Proceeds. The Company and the REIT will use the net
proceeds received by them from the sale of the Securities in the manner
indicated in the Prospectus under "Use of Proceeds."
14
(h) Restriction on Sale of Ordinary Shares. During a period of 90
days after the date of the Prospectus, the Company and the REIT will not,
without the prior written consent of the Representative, (i) directly or
indirectly, offer, pledge, sell, contract to sell, sell any option or contract
to purchase, purchase any option or contract to sell, grant any option, right or
warrant for the sale of, lend or otherwise dispose of or transfer any Securities
or any shares of Ordinary Shares or any securities convertible into or
exercisable or exchangeable for Ordinary Shares or file any registration
statement under the 1933 Act with respect to any of the foregoing or (ii)
directly or indirectly, enter into any swap or any other agreement or any
transaction that transfers, in whole or in part, directly or indirectly, the
economic consequence of ownership of the Ordinary Shares, whether any such swap
or transaction described in clause (i) or (ii) above is to be settled by
delivery of Ordinary Shares or such other securities, in cash or otherwise. The
foregoing sentence shall not apply to (A) the Securities to be sold hereunder,
(B) any shares of Ordinary Shares issued by the Company pursuant to existing
options, employee benefit agreements or incentive stock or director stock unit
plans or (C) any shares of Ordinary Shares or such other securities issued as
consideration for investments in or acquisition of entities involved in the
Adviser Activities or other financial services related businesses made by the
Company or any subsidiary of the Company.
(i) Reporting Requirements. The Company and the REIT, during the
period when the Prospectus is required to be delivered under the 1933 Act or the
1934 Act, will file all documents required to be filed with the Commission
pursuant to the 1934 Act within the time periods required by the 1934 Act and
the 1934 Act Regulations.
(j) Earnings. The Company and the REIT will make generally
available to its security holders and to the Representative an earnings
statement or statements of the Company and the REIT and their respective
Significant Subsidiaries which will satisfy the provisions of Section 11(a) of
the 1933 Act and Rule 158 under the 1933 Act as soon as practicable but in no
event later than 45 days, (or such earlier date as the Commission may hereafter
require), after the end of the 12-month period (or 90 days, or such earlier date
as the Commission may hereafter required) after the end of the 12-month period
if such period is a fiscal year) commencing on the first day of the fiscal
quarter of the Company and the REIT commencing after the effective date of the
Registration Statement, which statement shall cover said 12-month period.
(k) Reasonable Inquiries; Information. In connection with the
original distribution of the Securities, the Provident Companies agree that,
prior to any offer or resale of the Securities by the Underwriters, the
Underwriters and counsel for the Underwriters shall have the right to make
reasonable inquiries into the business of the Company and the REIT and their
respective Significant Subsidiaries.
(l) Reserve of Ordinary Shares. The Company will reserve and keep
available at all times, free of preemptive or other similar rights and liens and
adverse claims, sufficient Ordinary Shares to satisfy any obligations to issue
Ordinary Shares upon settlement of the Forward Purchase Contracts and will use
commercially reasonable efforts to have in effect a registration statement with
respect to any Ordinary Shares to be delivered pursuant to the Forward Purchase
Contract Agreement if such a registration statement is required under the 1933
Act.
15
(m) Listing. The Securities have been approved for listing on the
New York Stock Exchange ("NYSE") under the symbol "PCE PrI."
Section 4 Payment of Expenses.
-------------------
(a) Expenses. The Co-Issuers will pay all expenses incident to the
performance of their obligations under this Agreement, the Forward Purchase
Contract Agreement and the Pledge Agreement including (i) the preparation,
printing and filing of the Registration Statement (including financial
statements and exhibits) as originally filed and of each amendment thereto, (ii)
the printing and delivery to the Underwriters of this Agreement, the other
Operative Agreements, and such other documents as may be required in connection
with the offering, purchase, sale, issuance or delivery of the Securities, (iii)
the preparation, issuance and delivery of the Securities and any certificates
for the Securities to the Underwriters, (iv) the fees and disbursements of
counsel, accountants and other advisors or agents (including transfer agents and
registrars) to the Provident Companies, as well as the fees and disbursements of
the Forward Purchase Contract Agent, the Collateral Agent, any depositary and
their respective counsel, (v) the registration of the Securities under the 1934
Act and the listing of the Securities on the NYSE, (vi) the qualification of the
Securities under state securities laws in accordance with the provisions of
Section 3(f) hereof, including filing fees and the reasonable fees and
disbursements of counsel for the Underwriters in connection therewith and in
connection with the preparation, printing and delivery of the Blue Sky Survey,
(vii) the printing and delivery to the Underwriters of copies of the Prospectus
and any amendments or supplements thereto, (viii) the fees charged by nationally
recognized statistical rating organizations for the rating of the Securities, if
applicable, (ix) the filing fees incident to, and the reasonable fees and
disbursements of counsel to the Underwriters in connection with, the review, if
any, by the National Association of Securities Dealers, Inc. (the "NASD") of the
terms of the sale of the Securities, and (x) all other costs and expenses
incident to the performance of the Provident Companies of their obligations
hereunder.
(b) Termination of Agreement. If this Agreement is terminated by
the several Underwriters in accordance with the provisions of Section 5 or
Section 9(a)(i) hereof, the Co-Issuers shall reimburse the Underwriters for all
of its reasonable out-of-pocket expenses, including the reasonable fees and
disbursements of counsel for the Underwriters.
Section 5 Conditions of Underwriters' Obligations. The
obligations of the Underwriters to purchase and pay for the Securities pursuant
to this Agreement are subject to the accuracy of the representations and
warranties of the Provident Companies contained in Section 1 hereof or in
certificates of any officer of each of the Provident Companies delivered
pursuant to the provisions hereof, to the performance by the Provident Companies
of their covenants and other obligations hereunder, and to the following further
conditions:
(a) Effectiveness of Registration Statement. The Registration
Statement, including any Rule 462(b) Registration Statement, has become
effective under the 1933 Act and no stop order suspending the effectiveness of
the Registration Statement shall have been issued under the 1933 Act and no
proceedings for that purpose shall have been instituted or be pending or
threatened by the Commission, and any request on the part of the Commission for
additional information shall have been complied with to the reasonable
satisfaction of counsel to the
16
Underwriters. A prospectus containing information relating to the description of
the Securities, the specific method of distribution of the Securities and
similar matters shall have been filed with the Commission in accordance with
Rule 424(b)(1), (2), (3), (4) or (5), as applicable.
(b) Opinions of Special Counsel for the Provident Companies. At
Closing Time, the Representative shall have received the favorable opinions in
form and substance satisfactory to the Representative and counsel for the
Underwriters, each dated as of Closing Time, of (i) Shearman and Sterling,
counsel for the Provident Companies, to the effect set forth in Exhibit B, (ii)
Xxxxxxx, Xxxxxxxx & Xxxxxxx, P.L.L. Ohio counsel for the Company and the Bank,
to the effect set forth in Exhibit C, and (iii) Xxxxxxx, Xxxxx Xxxxxxx &
Xxxxxxxxx, LLP, Maryland counsel for the REIT, to the effect set forth in
Exhibit D.
(c) Opinion of Counsel for Forward Purchase Contract Agent. At
Closing Time, the Representative shall have received the favorable opinion,
dated as of Closing Time, of Xxxxx Xxxxxxx Xxxxxxx & Xxxxx LLP counsel to the
Forward Purchase Contract Agent, in form and substance satisfactory to counsel
for the Underwriters, to the effect that:
(i) X.X. Xxxxxx Trust Company, National Association is duly
incorporated and is validly existing as a national banking association
with trust powers under the laws of the United States with all
necessary power and authority to execute, deliver and perform its
obligations under the Forward Purchase Contract Agreement, the Pledge
Agreement and the Remarketing Agreement;
(ii) The execution, delivery and performance by the Forward
Purchase Contract Agent of the Forward Purchase Contract Agreement, the
Pledge Agreement and the Remarketing Agreement, and the authentication
and delivery of the Securities have been duly authorized by all
necessary action on the part of the Forward Purchase Contract Agent.
The Forward Purchase Contract Agreement, the Pledge Agreement and the
Remarketing Agreement have been duly executed and delivered by the
Forward Purchase Contract Agent, and constitute the legal, valid and
binding obligations of the Forward Purchase Contract Agent, enforceable
against the Forward Purchase Contract Agent in accordance with their
respective terms, except as the enforcement thereof may be limited by
bankruptcy, insolvency (including, without limitation, all laws
relating to fraudulent transfers), reorganization, moratorium or other
similar laws affecting the enforcement of creditors' rights generally
or by general equitable principles (regardless of whether enforcement
is considered in a proceeding at law or in equity);
(iii) The execution, delivery and performance of the Forward
Purchase Contract Agreement, the Pledge Agreement and the Remarketing
Agreement by the Forward Purchase Contract Agent does not conflict with
or constitute a breach of the charter or by-laws of the Forward
Purchase Contract Agent; and
(iv) No consent, approval or authorization of, or registration
with or notice to, any governmental authority or agency of the United
States of America or the State of New York is required for the
execution, delivery or performance by the Forward Purchase Contract
Agent of the Forward Purchase Contract Agreement, the Pledge Agreement
and the Remarketing Agreement.
17
(d) Opinion of Counsel for the Underwriters. At the Closing Time,
the Representative shall have received the favorable opinion, satisfactory to
the Representative, dated as of Closing Time, of Cleary, Gottlieb, Xxxxx and
Xxxxxxxx, counsel for the Underwriters. In giving such opinion such counsel may
rely, as to all matters governed by the laws of jurisdictions other than the law
of the State of New York and the federal law of the United States, upon the
opinions of counsel satisfactory to the Representative. Such counsel may also
state that, insofar as such opinion involves factual matters, they have relied,
to the extent they deem proper, upon certificates of officers of the Company and
certificates of public officials.
(e) Officers' Certificate. At the Closing Time, there shall not
have been, since the date hereof or since the respective dates as of which
information is given in the Prospectus, any material adverse change or
prospective material adverse change in the business, management, financial
position, business prospects, stockholders equity or results of operations of
the Company and its respective Significant Subsidiaries considered as one
enterprise, the Bank and its respective Significant Subsidiaries considered as
one enterprise and the REIT, whether or not arising in the ordinary course of
business and the Representative shall have received a certificate of the
President of the Company and of the chief financial or chief accounting officer
of the Company, as applicable, the President of the Bank and of the chief
financial or chief accounting officer of the Bank, as applicable, and a
certificate of the President of the REIT and of the chief financial or chief
accounting officer of the REIT, as applicable, dated as of Closing Time, to the
effect that (i) there has been no such Material Adverse Effect, (ii) the
representations and warranties in Section 1(a) hereof are true and correct in
all material respects with the same force and effect as though expressly made at
and as of the Closing Time, (iii) the Provident Companies have complied in all
material respects with all of the agreements entered into in connection with the
transaction contemplated herein and satisfied all conditions on their part to be
performed or satisfied at or prior to Closing Time, and (iv) no stop order
suspending the effectiveness of the Registration Statement has been issued and
no proceedings for that purpose have been instituted, are pending or, to the
best of such officers' knowledge, are threatened by the Commission.
(f) Accountant's Comfort Letter. At Closing Time, the
Representative shall have received from Ernst & Young LLP a letter dated such
date, in form and substance satisfactory to the Representative, containing
statements and information of the type ordinarily included in accountants'
"comfort letters" to initial purchasers with respect to the financial statements
and certain financial information contained in the Prospectus.
(g) Ratings. At the Closing Time, the Securities shall be rated at
least Baa3 by Xxxxx'x Investors Service, Inc. and BBB- by Standard & Poor's
Ratings Services, a division of The XxXxxx-Xxxx Companies, Inc., and the
Co-Issuers shall have delivered to the Representative a letter dated the Closing
Time, from such rating agency, or other evidence satisfactory to the
Representative, confirming that the Securities have such rating; and since the
date of this Agreement, there shall not have occurred a downgrading in the
rating assigned to the Securities or any of the Company's other debt securities
by any "nationally recognized statistical rating agency," as that term is
defined by the Commission for purposes of Rule 436(g)(2) under the 1933 Act, and
no such organization shall have publicly announced that it has under
surveillance or review its rating of the Securities or any of the Company's
other debt securities.
18
(h) Lock-up Agreements. At the date of this Agreement, the
Representative shall have received an agreement substantially in the form of
Exhibit A hereto signed by the persons listed on Schedule C hereto.
(i) Listing. The Securities have been approved for listing on the
NYSE, and satisfactory evidence of such actions shall have been provided to the
Representative.
(j) Conditions to Purchase of Option Securities. In the event that
the Representative exercises its option provided in Section 2(b) hereof to
purchase all or any portion of the Option Securities, the representations and
warranties of the Provident Companies contained herein and the statements in any
certificates furnished by the Company, the Bank and the REIT or any of their
respective Significant Subsidiaries hereunder shall be true and correct as of
each Date of Delivery and, at the relevant Date of Delivery, the Representative
shall have received:
(1) Officers' Certificate. A certificate, dated such Date of
Delivery, of the President of the Company and of the chief financial or
chief accounting officer of the Company, as applicable, the President
of the Bank and of the chief financial or chief accounting officer of
the Bank, as applicable and of the President of the REIT and of the
chief financial or chief accounting officer of the REIT, as applicable,
confirming that the certificate delivered at the Closing Time pursuant
to Section 5(e) hereof remains true and correct as of such Date of
Delivery.
(2) Opinion of Counsel for Provident Companies. The favorable
opinion of: (i) Xxxxxxx and Sterling, counsel for the Provident
Companies, dated such Date of Delivery, relating to the Option
Securities to be purchased on such Date of Delivery and otherwise to
the same effect as the opinion required by Section 5(b)(i) hereof; (ii)
Xxxxxxx, Muething & Xxxxxxx, P.L.L., Ohio counsel for the Company and
the Bank, in form and substance satisfactory to the Underwriters, dated
such Date of Delivery and otherwise to the same effect as the opinion
required by Section 5(b)(ii) hereof; and (iii) Xxxxxxx, Xxxxx Xxxxxxx &
Ingersoll, LLP, Maryland counsel for the REIT, in form and substance
satisfactory to the Underwriters, dated such Date of Delivery and
otherwise to the same effect as the opinion required by Section
5(b)(iii) hereof.
(3) Opinion of Counsel for Forward Purchase Contract Agent.
The favorable opinion of Xxxxx Xxxxxxx Xxxxxxx & Xxxxx LLP, counsel to
the Forward Purchase Contract Agent, in form and substance satisfactory
to counsel for the Underwriters, dated such Date of Delivery, relating
to the Option Securities and otherwise to the same effect as the
opinion required by Section 5(c) hereof.
(4) Opinion of Counsel for the Underwriters. The favorable
opinion of Cleary, Gottlieb, Xxxxx and Xxxxxxxx, counsel for the
Underwriters, dated such Date of Delivery, relating to the Option
Securities to be purchased on such Date of Delivery and otherwise to
the same effect as the opinion required by Section 5(d) hereof.
(5) Bring-down Comfort Letter. A letter from Ernst & Young
LLP, dated such Date of Delivery, substantially in the same form and
substance as the letter furnished to the Representative pursuant to
Section 5(f) hereof, except that the "specified
19
date" in the letter furnished pursuant to this paragraph shall be a
date not more than five days prior to such Date of Delivery.
(6) No Downgrading. Subsequent to the date of this Agreement,
no downgrading shall have occurred in the rating accorded the
Securities or of any of the Company's other 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
1933 Act, and no such organization shall have publicly announced that
it has under surveillance or review its ratings of any of the Company's
securities.
(k) Additional Documents. At Closing Time and at each Date of
Delivery, counsel for the Underwriters shall have been furnished with such
documents and opinions as they may reasonably require for the purpose of
enabling them to pass upon the issuance and sale of the Securities as herein
contemplated, or in order to evidence the accuracy of any of the representations
or warranties, or the fulfillment of any of the conditions, herein contained;
and all proceedings taken by the Co-Issuers in connection with the issuance and
sale of the Securities as herein contemplated shall be satisfactory in form and
substance in the reasonable judgment of the Representative and counsel for the
Underwriters.
(l) Termination of Agreement. If any condition specified in this
Section shall not have been fulfilled when and as required to be fulfilled, this
Agreement, or, in the case of any condition to the purchase of Option
Securities, on a Date of Delivery which is after the Closing Time, the
obligations of the Representative to purchase the relevant Option Securities,
may be terminated by the Representative by notice to the Co-Issuers and the Bank
at any time at or prior to Closing Time or such Date of Delivery, as the case
may be, and such termination shall be without liability of any party to any
other party except as provided in Section 4 and except that Sections 6 and 7
shall survive any such termination and remain in full force and effect.
Section 6 Indemnification.
---------------
(a) Indemnification of each Underwriter. The Provident Companies
jointly and severally agree to indemnify and hold harmless each Underwriter and
each person, if any, who controls any Underwriter within the meaning of Section
15 of the 1933 Act or Section 20 of the 1934 Act to the extent and in the manner
set forth in clauses (i), (ii) and (iii) below.
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, resulting from any untrue statement or
alleged untrue statement of a material fact contained in the Prospectus
(or any amendment or supplement thereto), or the omission or alleged
omission therefrom of a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened,
or of any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission; provided
that (subject to
20
Section 6(d) below) any such settlement is effected with the written
consent of the Company and the REIT; and
(iii) against any and all expense whatsoever, as incurred
(including the reasonable fees and disbursements of counsel chosen by
the Representative), reasonably incurred in investigating, preparing or
defending against any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission, or any
such alleged untrue statement or omission, to the extent that any such
expense is not paid under (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company and the
REIT by any Underwriter through the Representative expressly for use in the
Prospectus (or any amendment or supplement thereto).
(b) Indemnification of Provident Companies, Directors and
Officers. Each Underwriter agrees, severally and not jointly, to indemnify and
hold harmless each Provident Company, each of their respective directors, each
of their respective officers and each person, if any, who controls each of the
Provident Companies within the meaning of Section 15 of the 1933 Act or Section
20 of the 1934 Act against any and all loss, liability, claim, damage and
expense described in the indemnity contained in subsection (a) of this Section,
as incurred, but only with respect to untrue statements or omissions, or alleged
untrue statements or omissions, made in the Prospectus (or any amendment or
supplement thereto) in reliance upon and in conformity with written information
furnished to the Company and the REIT by any Underwriter through the
Representative expressly for use in the Prospectus (or any amendment or
supplement thereto).
(c) Actions against Parties; Notification. Each indemnified party
shall give notice as promptly as reasonably practicable to each indemnifying
party of any action commenced against it in respect of which indemnity may be
sought hereunder, but failure to so notify an indemnifying party shall not
relieve such indemnifying party from any liability hereunder to the extent it is
not materially prejudiced as a result thereof and in any event shall not relieve
it from any liability which it may have otherwise than on account of this
indemnity agreement. In the case of parties indemnified pursuant to Section 6(a)
above, counsel to the indemnified parties shall be selected by the
Representative, and, in the case of parties indemnified pursuant to Section 6(b)
above, counsel to the indemnified parties shall be selected by the Company and
the REIT. An indemnifying party may participate at its own expense in the
defense of any such action; provided, however, that counsel to the indemnifying
party shall not (except with the consent of the indemnified party) also be
counsel to the indemnified party. In no event shall the indemnifying parties be
liable for fees and expenses of more than one counsel (in addition to any local
counsel) separate from their own counsel for all indemnified parties in
connection with any one action or separate but similar or related actions in the
same jurisdiction arising out of the same general allegations or circumstances.
No indemnifying party shall, without the prior written consent of the
indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any litigation, or any investigation or proceeding by
any governmental
21
agency or body, commenced or threatened, or any claim whatsoever in respect of
which indemnification or contribution could be sought under this Section 6 or
Section 7 hereof (whether or not the indemnified parties are actual or potential
parties thereto), unless such settlement, compromise or consent (i) includes an
unconditional release of each indemnified party from all liability arising out
of such litigation, investigation, proceeding 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) Settlement without Consent if Failure to Reimburse. If at any
time an indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel, such
indemnifying party agrees that it shall be liable for any settlement of the
nature contemplated by Section 6(a)(ii) effected without its written consent if
(i) such settlement is entered into more than 45 days after receipt by such
indemnifying party of the aforesaid request, (ii) such indemnifying party shall
have received notice of the terms of such settlement at least 30 days prior to
such settlement being entered into, and (iii) such indemnifying party shall not
have reimbursed such indemnified party in accordance with such request prior to
the date of such settlement. Notwithstanding the immediately preceding sentence,
if at any time an indemnified party shall have requested an indemnifying party
to reimburse the indemnified party for fees and expenses of counsel, an
indemnifying party shall not be liable for any settlement of the nature
contemplated by Section 6(a)(ii) effected without its consent if such
indemnifying party (i) reimburses such indemnified party in accordance with such
request to the extent it considers such request to be reasonable and (ii)
provides written notice to the indemnified party substantiating the unpaid
balance as unreasonable, in each case prior to the date of such settlement.
Section 7 Contribution If the indemnification provided for in
Section 6 hereof is for any reason unavailable to or insufficient to hold
harmless an indemnified party in respect of any losses, liabilities, claims,
damages or expenses referred to therein, then each indemnifying party shall
contribute to the aggregate amount of such losses, liabilities, claims, damages
and expenses incurred by such indemnified party, as incurred, (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Provident Companies on the one hand and the Underwriters on the other hand from
the offering of the Securities pursuant to this Agreement or (ii) if the
allocation provided by clause (i) is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the any Provident Company
on the one hand and of the Underwriters on the other hand in connection with the
statements or omissions which resulted in such losses, liabilities, claims,
damages or expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Company and the REIT on the one
hand and the Underwriters on the other hand in connection with the offering of
the Securities pursuant to this Agreement shall be deemed to be in the same
respective proportions as the total net proceeds from the offering of the
Securities pursuant to this Agreement (before deducting expenses) received by
the Company, the Bank or the REIT and the total purchase discount received by
the Underwriters, in each case as set forth in the Prospectus, bear to the
aggregate initial public offering price of the Securities as set forth on such
cover.
22
The relative fault of the any Provident Company on the one hand and the
Underwriters on the other hand shall be determined by reference to, among other
things, whether any such untrue or alleged untrue statement of a material fact
or omission or alleged omission to state a material fact relates to information
supplied by any Provident Company or by the Underwriters and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
The Provident Companies and the Underwriters agree that it would not be
just and equitable if contribution pursuant to this Section 7 were determined by
pro rata allocation or by any other method of allocation which does not take
account of the equitable considerations referred to above in this Section 7. The
aggregate amount of losses, liabilities, claims, damages and expenses incurred
by an indemnified party and referred to above in this Section 7 shall be deemed
to include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, the Underwriters
shall not be required to contribute any amount in excess of the amount by which
the total price at which the Securities underwritten by it and distributed to
the public were offered to the public exceeds the amount of any damages which
the Underwriters have otherwise been required to pay by reason of any 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 0000 Xxx) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls any
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the same rights to contribution as each Underwriter, and
each director of the Provident Companies, each officer of the Provident
Companies and each person, if any, who controls the Provident Companies within
the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall
have the same rights to contribution as the Provident Companies.
Section 8 Default of any Underwriter
If one or more of the Underwriters shall fail at the Closing Time or a
Date of Delivery to purchase the Securities which it or they are obligated to
purchase under this Agreement (the "Defaulted Securities"), the Representative
shall have the right, with 24 hours thereafter, to make arrangements for one or
more of the non-defaulting Underwriters, or any other underwriters, to purchase
all, but not less than all, of the Defaulted Securities in such amounts may be
agreed upon and in such amounts as may be agreed upon and upon the terms herein
set forth; if, however, the Representative shall not have completed such
arrangements within such 24-hour period, then:
(a) if the number of Defaulted Securities does not exceed 10% of
the number of Securities to be purchased on such date, the non-defaulting
Underwriters shall be obligated, each
23
severally and not jointly, to purchase the full amount thereof in the
proportions that their respective underwriting obligations hereunder bear to the
underwriting obligations of all non-defaulting Underwriters, or
(b) if the number of Defaulted Securities exceeds 10% of the
number of Securities to be purchased on such date, this Agreement or, with
respect to any Date of Delivery which occurs after Closing Time, the obligation
of the Underwriters to purchase and of the Company to sell the Initial
Securities to be purchased and sold on such Date of Delivery shall terminate
without liability on the part of any non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default which does not result in termination of this
Agreement or, in the case of a Date of Delivery which is after Closing Time,
which does not result in a termination of the obligation of the Underwriters to
purchase and the Company to sell the relevant Initial Securities, as the case
may be, either the Representative or the Company shall have the right to
postpone Closing Time or the relevant Date of Delivery, as the case may be, for
a period not exceeding seven days in order to effect any required changes in the
Registration Statement or Prospectus or in any other documents or arrangements.
As used herein, the term "Underwriter" includes any person substituted for an
Underwriter under this Section.
Section 9 Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement or in certificates of officers of the Provident Companies or any of
their respective Significant Subsidiaries submitted pursuant hereto shall remain
operative and in full force and effect, regardless of any investigation made by
or on behalf of any Underwriter or controlling person, or by or on behalf of the
Provident Companies and shall survive delivery of and payment for the
Securities.
Section 10 Termination.
-----------
(a) Underwriting Agreement. The Representative may terminate this
Agreement, by notice to the Co-Issuers and the Bank, at any time at or prior to
Closing Time (i) if there has been, since the time of execution of this
Agreement or since the respective dates as of which information is given in the
Prospectus, any Material Adverse Effect, or (ii) if there has occurred any
material adverse change in the financial markets in the United States or in the
international financial markets, any outbreak of hostilities or escalation
thereof or other calamity or crisis or any change or development involving a
prospective change in national or international political, financial or economic
conditions, in each case the effect of which is such as to make it, in the
judgment of the Representative, impracticable or inadvisable to market the
Securities or to enforce contracts for the sale of the Securities, or (iii) if
trading in any securities of the Company has been suspended or materially
limited by the Commission or the Nasdaq National Market System or if trading
generally on the American Stock Exchange, New York Stock Exchange or in the
Nasdaq National Market System has been suspended or materially limited, or
minimum or maximum prices for trading have been fixed, or maximum ranges for
prices have been required, by any of said exchanges or by such system or by
order of the Commission, the National Association of Securities Dealers, Inc. or
any other governmental authority or a material
24
disruption has occurred in commercial banking or securities settlement or
clearance services in the United States, or (iv) if a banking moratorium has
been declared by either federal or New York authorities.
(b) Liabilities. If this Agreement is terminated pursuant to this
Section, such termination shall be without liability of any party to any other
party except as provided in Section 4 hereof, and provided, further, that
Sections 6 and 7 shall survive such termination and remain in full force and
effect.
Section 11 Notices. All notices and other communications
hereunder shall be in writing and shall be deemed to have been duly given if
mailed or transmitted by any standard form of telecommunication. Notices to the
Representative shall be directed to Xxxxxxx Xxxxx at 0 Xxxxx Xxxxxxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attention of Xxxx X. Xxxx, Managing Director. Notices
to the Company shall be directed to it at Provident Financial Group, Inc., Xxx
Xxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxx 00000, Attention of Xxxx X. Xxxxx. Notices
to the Bank shall be directed to it at The Provident Bank, Xxx Xxxx Xxxxxx
Xxxxxx, Xxxxxxxxxx, Xxxx 00000, Attention of Xxxx X. Xxxxx. Notices to the REIT
shall be directed to it at PFGI Capital Corporation, Xxx Xxxx Xxxxxx Xxxxxx,
Xxxxxxxxxx, Xxxx 00000, Attention of Xxxx X. Xxxxx.
Section 12 Parties. This Agreement shall inure to the benefit of
and be binding upon each of the Underwriters, the Provident Companies and their
respective successors. Nothing expressed or mentioned in this Agreement is
intended or shall be construed to give any person, firm or corporation, other
than the Underwriters, the Provident Companies and their respective successors
and the controlling persons and officers and directors referred to in Sections 6
and 7 and their heirs and legal representatives, any legal or equitable right,
remedy or claim under or in respect of this Agreement or any provision herein
contained. This Agreement and all conditions and provisions hereof are intended
to be for the sole and exclusive benefit of the Underwriters, the Provident
Companies and their respective successors, and said controlling persons and
officers and directors and their heirs and legal representatives, and for the
benefit of no other person, firm or corporation. No purchaser of Securities from
the Underwriters shall be deemed to be a successor by reason merely of such
purchase.
Section 13 GOVERNING LAW AND TIME. THIS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES THEREOF. EXCEPT AS OTHERWISE SET
FORTH HEREIN, SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY TIME.
Section 14 Counterparts. This Agreement may be signed in one or
more counterparts, each of which shall constitute an original and all of which
together shall constitute the one and the same agreement.
Section 15 Effect of Headings. The Article and Section headings
herein and the Table of Contents are for convenience only and shall not affect
the construction hereof.
25
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to each of the Provident Companies a
counterpart hereof, whereupon this instrument, along with all counterparts, will
become a binding agreement among the several Underwriters and the Provident
Companies in accordance with its terms.
Very truly yours,
PROVIDENT FINANCIAL GROUP, INC.
By:
----------------------------------------
Name:
Title:
THE PROVIDENT BANK
By:
----------------------------------------
Name:
Title
PFGI CAPITAL CORPORATION
By:
----------------------------------------
Name:
Title:
CONFIRMED AND ACCEPTED,
as of the date first above written:
XXXXXXX XXXXX & CO.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By:
------------------------------------------------------
Authorized Signatory
For themselves and the other
Several Underwriters named in Schedule B
to the foregoing Agreement.
SCHEDULE A
PROVIDENT FINANCIAL GROUP, INC.
(an Ohio corporation)
THE PROVIDENT BANK
(an Ohio state-chartered bank)
PFGI CAPITAL CORPORATION
(a Maryland corporation)
6,000,000 PRIDES'sm' (Stated Amount of $25 per PRIDES),
consisting of
6,000,000 Income PRIDES
each consisting of
a Forward Purchase Contract of Provident Financial Group, Inc.
requiring the purchase on August 17, 2005 (or earlier)
of Ordinary Shares of
Provident Financial Group, Inc.
and
a Series A Non-Cumulative Preferred Stock
of PFGI Capital Corporation
1. The initial public offering price per Security, determined as provided in
said Section 2, shall be $25 per Security.
2. The price per Security to be paid by the Underwriter shall be $25.00, being
an amount equal to the offering price set forth above less $[ ] per
Security.
Sch-A-1
SCHEDULE B
NUMBER OF INITIAL SECURITIES TO BE PURCHASED
Number of
Income
Underwriter PRIDES
----------- ------
Merrill, Lynch, Xxxxxx, Xxxxxx & Xxxxx Incorporated [5,100,000]
Xxxxxx Brothers Inc. [300,000]
X.X. Xxxxxxx & Sons, Inc. [300,000]
XxXxxxxx & Company Securities, Inc. [300,000]
Total [6,000,000]
Sch-B-1
SCHEDULE C
LIST OF PERSONS AND ENTITIES SUBJECT TO LOCK-UP
Provident Lock-Ups REIT Lock-Ups
------------------ -------------
American Financial Group, Inc. Xxxxxxxxxxx X. Xxxxx
Xxxx X. Xxxxxxx Xxxxxx Xxxxx
Xxxx X. Xxxxxxx III Xxxx X. Xxxxx
S. Xxxxx Xxxxxxx Xxxx X. Xxxxxxxxxx
Xxxxx X. Xxxxxxx Xxxxxxx X. Xxxxxxxxx
Xxxxxx X. Xxxxxxxx Xxxxxx Xxxxxx
Xxxx X. Xxxx Xxxx Xxxxxx
Xxxxxx X. Xxxxx, Xx. Xxxxx Xxxxx
Xxxxxx X. Xxxxxx Xxxxx Xxxxxxxxx
Xxxxxx X. Peerless
Xxxxxx X. Xxxxxx
Xxxxxxxxxxx X. Xxxxx
Xxxx X. Xxxxx
Sch-C-1
Exhibit A
FORM OF LOCK-UP PURSUANT TO SECTION 5(H)
[ ], 2002
XXXXXXX XXXXX & CO.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
4 Word Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Proposed Offering of PRIDES by Provident
Financial Group, Inc.
Dear Sirs:
The undersigned, a stockholder [and an officer and/or director] of
Provident Financial Group, Inc., an Ohio corporation duly organized and existing
under the laws of the State of Ohio (the "Company"), understands that Xxxxxxx
Xxxxx & Co., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated ("Xxxxxxx
Xxxxx") as representative of the several underwriters named in Schedule B of the
Underwriting Agreement proposes to enter into a Underwriting Agreement (the
"Underwriting Agreement') with the Company, The Provident Bank, an Ohio
state-chartered member bank of the Federal Reserve System (the "Bank") and PFGI
Capital Corporation, a corporation duly organized and existing under the laws of
the State of Maryland (the "REIT") providing for the offering of 6,000,000
PRIDES (the "Securities"). In recognition of the benefit that such an offering
will confer upon the undersigned as a stockholder [and an officer and/or
director] of the Company, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the undersigned agrees
with Xxxxxxx Xxxxx that, during a period of 90 days from the date of the final
offering memorandum relating to the offer and sale of the Securities, the
undersigned will not, without the prior written consent of Xxxxxxx Xxxxx,
directly or indirectly, (i) offer, pledge, sell, contract to sell, sell any
option or contract to purchase, purchase any option or contract to sell, grant
any option, right or warrant for the sale of, lend or otherwise dispose of or
transfer any Securities or any shares of the Company's
Ex A-1
Ordinary Shares, par value $0.01 per share (the "Ordinary Shares"), or any
securities convertible into or exchangeable or exercisable for or repayable with
Ordinary Shares, whether now owned or hereafter acquired by the undersigned or
with respect to which the undersigned has or hereafter acquires the power of
disposition, or file any registration statement under the Securities Act of
1933, as amended, with respect to any of the foregoing or (ii) enter into any
swap or any other agreement or any transaction that transfers, in whole or in
part, directly or indirectly, the economic consequence of ownership of Ordinary
Shares or any securities convertible into or exchangeable for Ordinary Shares,
whether any such swap or transaction is to be settled by delivery of Ordinary
Shares or other securities, in cash or otherwise[; provided, however, that
shares of the Company's Ordinary Shares may be sold so long as the proceeds of
any such sales do not exceed $2 million in the aggregate and shall be used for
charitable purposes].
Very truly yours,
Signature:
---------------------------------
Print Name:
--------------------------------
Ex A-2
EXHIBIT B
OPINION OF XXXXXXX XXXXX XXXXXXX & XXXXXXXXX, LLP
1. The REIT has been duly incorporated and is validly existing under
the laws of the State of Maryland and is in good standing with the SDAT. The
REIT has the corporate power to conduct its business as described in the
Prospectus under the caption "Business -- PFGI Capital Corporation -- General"
and to enter into and perform its obligations under the Operative Agreements.
2. The authorized, issued and outstanding stock of the REIT is as set
forth in the Prospectus (except for subsequent issuances, if any, pursuant to
reservations, agreements or employee benefit plans referred to in the Prospectus
or pursuant to the exercise of convertible securities or options referred to in
the Prospectus) and such shares of the REIT's issued and outstanding stock (the
"Outstanding Shares") have been duly authorized and validly issued and are fully
paid and non-assessable and none of the Outstanding Shares was issued in
violation of preemptive rights arising under the Maryland General Corporation
Law (the "MGCL"), the Charter or the Bylaws.
3. The execution, delivery and performance by the REIT of each of the
Operative Agreements (including the issuance and sale to the Underwriter of the
Income PRIDES of which the Shares constitute a part) has been duly authorized by
all necessary corporate action on the part of the REIT. The Operative Agreements
have each been duly executed and, so far as is known to us, delivered by the
REIT.
4. The Shares have been duly authorized by all necessary corporate
action on the part of the REIT for issuance and sale to the Underwriter pursuant
to the Underwriting Agreement and, when issued and delivered by the REIT
pursuant to the Underwriting Agreement against payment of the purchase price
therefor and as otherwise specified in the Underwriting Agreement, will be
validly issued, fully paid and non-assessable.
5. The issuance of the Shares is not subject to preemptive rights
arising under the MGCL, the Charter or the Bylaws.
6. We have reviewed the information in the Prospectus under the
captions "Description of the PRIDES," "Description of the REIT Series A
Preferred Stock," and "Description of the REIT Common Stock," and in each case
to the extent that such information constitutes matters of Maryland law,
summaries of Maryland legal matters, summaries of certain provisions of the
Charter or Bylaws or legal conclusions with respect to matters of Maryland law,
such information is correct in all material respects.
7. The issuance of the Shares and the execution, delivery and
performance of the Operative Agreements (including the issuance and sale to the
Underwriter of the Income PRIDES of which the Shares constitute a part) will not
result in any violation of the provisions of the Charter or Bylaws.
8. No authorization, approval, consent or order of any Maryland state
government authority or agency (other than as may be required under Maryland
securities or blue
1
sky laws) is required in connection with the due authorization, execution or
delivery of the Operative Agreements or the offering, issuance or sale of the
Shares.
9. So far as is known to us, there is no pending litigation or other
legal or administrative proceeding (in which service of process has been
received by an employee of the REIT) against the REIT in the State of Maryland
that might materially and adversely affect the performance of the REIT under the
Operative Agreements.
2
EXHIBIT C
OPINION OF SHEARMAN & STERLING
1. Assuming that each of the Pledge Agreement and the Forward Purchase
Contract Agreement has been duly authorized, executed and delivered by the
parties thereto, the Forward Purchase Contract Agreement constitutes a valid and
binding obligation of Provident, the Bank and the REIT, enforceable against
Provident, the Bank and the REIT, and the Pledge Agreement constitutes a valid
and binding obligation of Provident, enforceable against Provident in accordance
with its terms, except, in each case, as (x) enforcement thereof may be limited
by bankruptcy, insolvency (including, without limitation, all laws relating to
fraudulent transfers), reorganization, moratorium or similar laws affecting
enforcement of creditors' rights generally, (y) enforcement thereof is subject
to general principles of equity (regardless of whether enforcement is considered
in a proceeding in equity or at law), and (z) and rights to indemnity and
contribution may be limited by federal and state securities laws and public
policy considerations; provided, however, that upon the occurrence of a
Termination Event (as defined in the Forward Purchase Contract Agreement),
Section 365(e) of the Bankruptcy Code would not substantively limit the
provisions of Sections 3.15 and 5.7 of the Forward Purchase Contract Agreement
or Section 4.3 of the Pledge Agreement that require termination of the Forward
Purchase Contracts and release of the Collateral Agent's security interest: in
(1) the Preferred Stock, (2) the Treasury Securities, or (3) the Applicable
Ownership Interest of the Treasury Portfolio, as applicable, and the transfer of
such securities to the Forward Purchase Contract Agent (for the benefit of the
holders of Securities) and, provided, further, however, that (i) the foregoing
opinions set forth above in this paragraph are subject to the equitable powers
of the Bankruptcy Court and the Bankruptcy Court's power under Section 105(a) of
the Bankruptcy Code, and (ii) procedural restrictions respecting relief from the
automatic stay under Section 362 of the Bankruptcy Code may delay the timing of
the exercise of such rights and remedies.
2. Assuming the Income PRIDES have been duly authorized by Provident
and the REIT, when issued and authenticated in accordance with the provisions of
the Forward Purchase Contract Agreement and delivered to and paid for by the
Underwriters in accordance with the terms of the Underwriting Agreement and,
assuming the certificates evidencing the Income PRIDES have been duly executed
by the Forward Purchase Contract Agent, as attorney-in-fact of the holders
thereof, the Income PRIDES will constitute valid and binding obligations of
Provident and the REIT, enforceable against Provident and the REIT in accordance
with their terms, except as enforcement thereof may be limited by bankruptcy,
insolvency, (including, without limitation, all laws relating to fraudulent
transfers), reorganization, moratorium or similar laws affecting enforcement of
creditors' rights generally and by the effect of general principles of equity
(regardless of whether enforcement is considered in a proceeding in equity or at
law); provided, however, that upon the occurrence of a Termination Event (as
defined in the Forward Purchase Contract), Section 365(e) of the Bankruptcy Code
would not substantively limit the provisions of Sections 3.15 and 5.7 of the
Forward Purchase Contract Agreement or Section 4.3 of the Pledge Agreement that
require termination of
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the Forward Purchase Contracts and release of the Collateral Agent's security
interest in (1) the Preferred Stock, (2) the Treasury Securities, or (3) the
Applicable Ownership Interest of the Treasury Portfolio, as applicable, and the
transfer of such securities to the Forward Purchase Contract Agent (for the
benefit of the holders of Securities); and provided, further, however, that (i)
the foregoing opinions set forth above in this paragraph are subject to the
equitable powers of the Bankruptcy Court and the Bankruptcy Court's power under
Section 105(a) of the Bankruptcy Code, and (ii) procedural restrictions
respecting relief from the automatic stay under Section 362 of the Bankruptcy
Code may delay the timing of the exercise of such rights and remedies.
3. Assuming that the Remarketing Agreement has been duly authorized,
executed and delivered by the parties thereto, the Remarketing Agreement
constitutes a valid and binding obligation of Provident, the Bank and the REIT,
enforceable against each of Provident, the Bank and the REIT in accordance with
its terms, except as (x) enforcement thereof may be limited by bankruptcy,
insolvency (including, without limitation, all laws relating to fraudulent
transfers), reorganization, moratorium or similar laws affecting enforcement of
creditors' rights generally, (y) enforcement thereof is subject to general
principles of equity (regardless of whether enforcement is considered in a
proceeding in equity or at law), and (z) and rights to indemnity and
contribution may be limited by federal and state securities laws and public
policy considerations.
4. The PRIDES conform in all material respects to the description
thereof in the Prospectus under the heading "Description of the
Securities -- Description of PRIDES" and "Description of the Securities --
Description of the Forward Purchase Contracts" and the PRIDES are substantially
in the form filed as an exhibit to the Registration Statement.
5. To our knowledge, no approval, authorization, consent or order of,
or registration or filing with, any court or, governmental agency is required
for the issuance and sale of the Income PRIDES by Provident and the REIT and the
issuance of the Bank Series A Preferred Stock upon the occurrence of an
Automatic (as defined in the Forward Purchase Contract Agreement) or the
performance of the Underwriting Agreement and the other Operative Documents, and
the transactions contemplated thereby, by Provident, the Bank and the REIT,
except (1) such as may be required under State or federal securities or "blue
sky" laws, (2) such as have already been received, (3) such as may be required
by the Ohio Division of Financial Institutions, (4) except as otherwise set
forth in the Prospectus and Bank Offering Circular or (5) except in certain
circumstances, the filing of an FR Y10 with the Federal Reserve Bank.
6. A member of the Staff of the Commission informed us that the
Registration Statement was declared effective pursuant to Section 8(a) of the
Securities Act on June __, 2002 at ____ p.m. (EST), and, to the best of our
knowledge, no stop order suspending the effectiveness of the Registration
Statement has been issued under the Securities Act and no proceedings therefore
are pending or threatened by the Commission.
7. The statements included in the Prospectus under the captions
"Description of the Securities -- Description of the PRIDES," and "Description
of the Securities -- Description of the Forward Purchase Contracts," insofar as
such statements purport to summarize certain provisions of the Forward Purchase
Contract Agreement, the
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Remarketing Agreement, the Pledge Agreement and the PRIDES, fairly summarize, in
all material respects, such provisions.
8. The statements included in the Prospectus under the captions
"Certain Federal Income Tax Consequences" and "ERISA Matters," to the extent
they relate to matters of law or legal conclusions, are accurate in all material
respects.
9. Neither Provident nor the REIT is 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.
10. Each of the Registration Statement and the Prospectus (other than
the financial statements and other financial data contained therein or omitted
therefrom, as to which we express no opinion) appears on its face to be
appropriately responsive in all material respects to the requirements of the
Securities Act and the applicable rules and regulations of the Commission
thereunder.
11. No facts came to our attention which gave us reason to believe that
(i) the Registration Statement (other than the financial statements and other
financial data contained therein or omitted therefrom, as to which we have not
been requested to comment), at the time it became effective, 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 not misleading, or
(ii) the Prospectus (other than the financial statements and other financial
data contained therein or omitted therefrom, as to which we have not been
requested to comment), as of its date or the Closing Date, contained or contains
an untrue statement of a material fact or omitted or omits to state a material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
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EXHIBIT D
OPINION OF XXXXXXX, XXXXXXXX & XXXXXXX, P.L.L.
1. Provident has been duly incorporated and is validly existing as a corporation
in good standing under the laws of the State of Ohio, and has full corporate
power and authority to conduct the business in which it is engaged, to own,
lease and operate the properties used by it in such business, to issue and sell
the Securities and to enter into and perform its obligations under each
Operative Document to which it is a party, and is qualified to do business as a
foreign corporation and is in good standing under the laws of each jurisdiction
which requires such qualification except to the extent that the failure to
qualify or be in good standing would not have a Material Adverse Effect.
2. The Bank has been duly organized and is validly existing as an entity in good
standing under the laws of the State of Ohio and has full corporate power and
authority to conduct the business in which it is engaged, to own, lease and
operate the properties used by it in such business, to issue and sell the Bank
Preferred Stock and to enter into and perform its obligations under each of the
Operative Documents to which it is a party and is qualified to do business as a
foreign corporation and is in good standing under the laws of each jurisdiction
which requires such qualification except to the extent that the failure to
qualify or be in good standing would not have a Material Adverse Effect.
3. Each significant subsidiary of Provident and the Bank, respectively, has been
incorporated and is validly existing in good standing under the laws of the
jurisdiction in which it is chartered or organized, with the power and authority
to conduct the business in which it is engaged, to own, lease and operate the
properties used by it in such business and is qualified to do business as a
foreign corporation and is in good standing under the laws of each jurisdiction
which requires such qualification except to the extent that the failure to
qualify or be in good standing would not have a Material Adverse Effect.
4. The authorized capital stock of Provident is as set forth in the Prospectus
(except for subsequent issuances, if any, pursuant to reservations, agreements
or employee benefit plans referred to in the Prospectus or pursuant to the
exercise of convertible securities or options referred to in the Prospectus);
the shares of issued and outstanding capital stock of Provident have been duly
authorized and validly issued and are fully paid and non-assessable; and none of
the outstanding shares of capital stock of Provident was issued in violation of
the preemptive or other similar rights of any security holder of Provident.
5. The authorized capital stock of the Bank is as set forth in the Bank Offering
Circular (except for subsequent issuances, if any, pursuant to the Underwriting
Agreement, pursuant to reservations, agreement or employee benefit plans
referred to in the Bank Offering Circular or pursuant to the exercise of
convertible securities or options referred to in the Bank Offering Circular);
(ii) the shares of issued and outstanding capital stock of the Bank have been
duly authorized and validly issued and are fully paid and assessable in
accordance with Ohio law; and (iii) none of the outstanding shares of capital
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stock of the Bank was issued in violation of the preemptive or other similar
rights of any security holder of the Bank.
6. The Underwriting Agreement has been duly authorized, executed and delivered
on behalf of Provident and the Bank.
7. The Remarketing Agreement has been duly authorized, executed and delivered by
Provident and the Bank.
8. The Pledge Agreement has been duly authorized, executed and delivered by
Provident.
9. The Forward Purchase Contract Agreement has been duly authorized, executed
and delivered by Provident and the Bank.
10. The PRIDES have been duly authorized, executed and delivered by Provident.
11. The Bank Preferred Stock has been duly authorized by the Bank and, when
issued, and delivered in exchange for the REIT Preferred Stock, will be validly
issued, fully paid and assessable in accordance with Ohio law and free and clear
of any preemptive rights or any similar rights.
12. The Common Stock to be issued and sold by Provident pursuant to the Forward
Purchase Contract Agreement has been duly authorized and reserved for issuance
by Provident and when issued and delivered by Provident in accordance with the
provisions of the Forward Purchase Contract Agreement upon payment of the
purchase price specified therein, will be validly issued, fully paid and
nonassessable and free and clear of any preemptive rights or any similar rights.
13. The Bank Preferred Stock conforms in all material respects to the
descriptions thereof in the Prospectus and the Bank Offering Circular.
14. The statements in the Prospectus and the Bank Offering Circular under the
caption "Description of our Capital Stock" concerning the Bank Preferred Stock
have been reviewed by us, fairly summarized and fairly present the information
required to be set forth with respect to the Bank Preferred Stock in all
material respects.
15. To the best of our knowledge, there are no contracts, instruments or
documents of a character required to be described in the Registration Statement
or to be filed as exhibits thereto other than those described or filed.
16. To the best of our knowledge, there are no legal or governmental proceedings
pending or threatened of a character which should be disclosed in the
Registration Statement.
17. The issuance and sale of the Securities by Provident including the issuance
and sale of the Common Stock by Provident pursuant to the Forward Purchase
Contracts and the issuance and delivery of the Bank Preferred Stock upon the
occurrence of an exchange event in the manner described in the Prospectus and
the Bank Offering
7
Circular, and the execution, delivery and performance of the Underwriting
Agreement and the other Operative Documents and the consummation by Provident or
the Bank of the transactions contemplated thereby, will not conflict with or
result in a breach of, or constitute a default under, any of the terms,
conditions or provisions of (i) the certificate of incorporation or bylaws of
Provident, the Bank, or any of their respective subsidiaries, or (ii) any
agreement or instrument of which we are aware in which Provident or the Bank or
any of their respective subsidiaries is a party or by which Provident, the Bank,
or any of their respective subsidiaries or any of their properties is bound,
except in the case of clause (ii) immediately above, where violation would not
result in a Material Adverse Effect.
18. No consent, approval or authorization of, or registration or filing with,
any court or governmental agency or body of the State of Ohio having
jurisdiction over Provident or the Bank is required for the consummation on the
part of Provident or the Bank of any of the transactions contemplated in the
Underwriting Agreement, the Forward Purchase Contract Agreement, the Pledge
Agreement and the Remarketing Agreement, as applicable, except such as have been
obtained.
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