EXHIBIT 1.4
NEW ▇▇▇▇▇▇ FINANCIAL, INC.
____________ Shares
of Common Stock
(par value $.01 per share)
UNDERWRITING AGREEMENT
September __, 2000
▇▇▇▇, ▇▇▇▇ & Co., Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
New ▇▇▇▇▇▇ Financial, Inc., a Pennsylvania corporation (the
"Company"), ▇▇▇▇▇▇ Savings Bank, a Pennsylvania-chartered stock savings bank
that is in the process of converting to a federal savings bank (the "Bank"),
▇▇▇▇▇▇ Financial, Inc. ("▇▇▇▇▇▇ Financial"), the current mid-tier holding
company of the Bank, and ▇▇▇▇▇▇ Financial, M.H.C. (the "MHC"), a mutual holding
company and the current majority owner of ▇▇▇▇▇▇ Financial, hereby confirm their
agreement with ▇▇▇▇, ▇▇▇▇ & Co., Inc. ("▇▇▇▇, ▇▇▇▇") and ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
Inc. ("▇▇▇▇ ▇▇▇▇▇"), as the representatives (the "Representatives") of the
several underwriters listed on Schedule I hereto (the "Underwriters," which term
shall also include any underwriter purchasing Shares, as hereinafter defined,
pursuant to Section 1 hereof) with respect to the issue and sale by the Company
and the purchase by the Underwriters of ___________ shares (the "Initial
Shares") of the Company's Common Stock, par value $.01 per share (the "Common
Stock"). The Company also proposes to issue and sell to the Underwriters, at the
Representatives' option, up to an additional _________ shares of Common Stock
(the "Option Shares") as set forth herein. The term "Shares" as used herein,
unless indicated otherwise, shall mean the Initial Shares and the Option Shares.
Introductory. The Company was recently incorporated under the laws of
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the Commonwealth of Pennsylvania for the purpose of being the successor of
▇▇▇▇▇▇ Financial. The Company is authorized to issue 110,000,000 shares of
capital stock, of which 100,000,000 shares are common stock having a par value
of $.01 per share (the "Common Stock"), and 10,000,000 shares are preferred
stock having a par value of $.01 per share. The Shares, together with _________
shares (the "Subscription Shares") of the Company's Common Stock that the
Company intends to issue in the Subscription and Community Offerings, as defined
below (collectively, the "Conversion Shares"), are being issued in connection
with the mutual-to-stock conversion (the "Conversion") of the MHC.
Prior to the consummation of the MHC's mutual to stock Conversion, the
Bank will convert its charter to a federal savings bank charter, and the MHC and
▇▇▇▇▇▇ Financial will each convert their charters to federal holding company
charters (each, a "Charter Conversion" and collectively, the "Charter
Conversions"), in each case in accordance with the laws of the United States and
the applicable regulations of the Office of Thrift Supervision (the "OTS"; such
laws and the applicable regulations of the OTS are referred to herein as the
"Charter Conversion Regulations"). As a result, the Conversion is being
conducted in accordance with the laws of the United States and the applicable
regulations of the OTS (such laws and the regulations of the OTS are referred to
herein as the "Conversion Regulations").
The Company, ▇▇▇▇▇▇ Financial, the MHC and the Bank (both before and
after the Charter Conversions) are sometimes referred to herein as the "▇▇▇▇▇▇
Parties."
The Conversion is to be conducted in accordance with a Plan of
Conversion (the "Plan") adopted by the Board of Trustees of the MHC on March 27,
2000 and amended on June 22, 2000. The Plan provides that the Conversion will be
effected as follows: The Company will charter an interim savings bank as a
wholly-owned subsidiary ("Interim Bank"). ▇▇▇▇▇▇ Financial will convert to an
interim federal stock savings bank and will thereafter merge with and into the
Bank. The MHC will also convert to an interim federal stock savings bank and
merge with and into the Bank. The Interim Bank will then merge with and into the
Bank with the Bank as the surviving entity. In connection with the foregoing
transactions, each stockholder of ▇▇▇▇▇▇ Financial, Inc. immediately prior to
the Conversion, other than the MHC ("Public Stockholders"), will receive shares
of the Company's common stock pursuant to an exchange ratio described in the
Plan. Pursuant to the Plan and in connection with the Conversion, the Company
will offer the Conversion Shares for sale in the Conversion Offering, as defined
below.
Simultaneous with or immediately after the consummation of the
Conversion and the Conversion Offering, the Company will acquire York Financial,
Inc. ("York Financial"), in a stock-for-stock exchange (the "Merger") pursuant
to an Agreement and Plan of Reorganization (the "Merger Agreement") dated as of
March 27, 2000 (the "Merger Agreement"). York Financial, Inc. is the holding
company of York Federal Savings and Loan Association ("York Federal"). The
Merger will be accomplished in accordance with the laws of the Commonwealth of
Pennsylvania and the United States and applicable regulations of Pennsylvania
and the OTS (such laws and the regulations collectively, the "Merger
Regulations", and together with the Conversion Regulations and the Charter
Conversion Regulations, the "Reorganization Regulations"). ▇▇▇▇, ▇▇▇▇ is serving
as financial advisor to ▇▇▇▇▇▇ Financial and the Bank in connection with the
Merger. Pursuant to the terms of the Merger Agreement, upon consummation of the
Merger each outstanding share of common stock, par value $1.00 per share, of
York Financial ("York Financial Common Stock") and each outstanding option to
purchase York Financial Common Stock will automatically convert into and become
exchangeable for a number of shares of the Company's Common Stock determined
according to an exchange ratio calculated in the manner set forth in the Merger
Agreement. The Merger is expected to close simultaneously with or immediately
after consummation of the Conversion. The Conversion and the Merger are
separate, distinct transactions, but one will not occur without the other. The
Charter Conversions, the Conversion and the Merger are sometimes collectively
referred to herein as the "Reorganization." The Company, ▇▇▇▇▇▇ Financial, Inc.,
the MHC, the Bank, York Financial and York Federal are sometimes hereinafter
collectively referred to as the "Constituent Institutions."
The Company, in accordance with the Plan, initially offered shares of
its Common Stock for a purchase price of $10.00 per share (the "Purchase Price")
in a Subscription Offering and Community Offering (in each case, as defined
below). In the subscription offering, the Subscription Shares were offered, by
way of nontransferable subscription rights, in descending order of priority to
(i) the Bank's Eligible Account Holders (defined as holders of deposit accounts
totaling $50 or more as of December 31, 1998); (ii) the Bank's Employee Stock
Ownership Plan (the "ESOP") (for a total of up to 8% of the Conversion Shares);
(iii) the Bank's Supplemental Eligible Account Holders (defined as holders of
deposit accounts totaling $50 or more as of June 30, 2000); and (iv) depositors
with accounts at the Bank on August ___, 2000 (the "Subscription Offering"). In
the Community Offering, Subscription Shares not purchased in the Subscription
Offering were offered by the Company to the general public, with preference
given to persons who reside in the Bank's local community, and then to current
stockholders of ▇▇▇▇▇▇ Financial and York Financial. The Company has received
subscriptions for the purchase of
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__________ Subscription Shares in the Subscription and Community Offerings. [In
addition, the Company has determined to apply _________ unsubscribed shares to
the acquisition by merger of York Financial, and such shares ("York Shares")
will be deemed issued in the Community Offering.]
In accordance with the Conversion Regulations, the aggregate price of
shares of Common Stock to be issued in the Conversion (including the
Subscription Shares and the Shares to be sold to the Underwriters hereunder)
must be based upon an independent appraisal of the estimated pro forma market
value of the Common Stock of the Company, and the public offering price per
share in any underwritten public offering must be the same as the price per
share in the Subscription and Community Offerings. As a result, the public
offering price per share of the Shares to be sold by the Underwriters hereunder
will be $10.00 per share, and the number of Shares to be sold to the
Underwriters hereunder will be determined by reference to the independent
appraisal and the aggregate price of the Subscription Shares for which the
Company has received subscriptions.
The number of Shares to be sold to the several Underwriters hereunder,
the purchase price to be paid by the Underwriters for the Shares and the
commission per Share to be paid by the Company to the Underwriters shall be
agreed upon by the Company and the Representatives, and such agreement shall be
set forth in a separate written instrument substantially in the form of Exhibit
A hereto (the "Price Agreement"). The Price Agreement may take the form of an
exchange of any standard form of written telecommunication between the ▇▇▇▇▇▇
Parties and the Representatives and shall specify such applicable information as
is indicated in Exhibit A hereto. The offering of the Shares will be governed by
this Agreement, as supplemented by the Price Agreement. From and after the date
of the execution and delivery of the Price Agreement, this Agreement shall be
deemed to incorporate, and all references herein to "this Agreement" shall be
deemed to include, the Price Agreement.
The Company's offering and sale of the Shares to the Underwriters
hereunder, together with its offering of the Subscription Shares in the
Subscription Offering and Community Offering, is referred to herein as the
"Conversion Offering."
The Plan provides that, generally, no person may purchase in the
Conversion Offering more than $5,000,000 of Conversion Shares; the maximum
amount that an individual together with persons acting in concert may purchase
in all categories of the Conversion Offering combined is 5% of the shares issued
in the Offering; provided that the Company may, in its sole discretion and
without further notice to or solicitation of subscribers or other prospective
purchasers, increase or decrease such maximum purchase limitations.
The following applications have been filed in connection with the
Reorganization: (i) an Application for Conversion on Form AC (the "Conversion
Application") has been filed with the OTS; (ii) a Combined Application H-(e)1/H-
(e)3 Holding Company Application (the "Holding Company Application") has been
filed with the OTS; (iii) a Bank Merger Act Application (the "BMA Application")
has been filed with the OTS; (iv) an Application on Form 1582 for Conversion
from a State-Chartered Stock Association into a Federal Stock Savings Bank,
together with related applications for the conversion of the MHC and ▇▇▇▇▇▇
Financial from state-chartered to federally chartered holding companies
(collectively, the "Charter Conversion Applications"); and all amendments to the
foregoing applications required to the date hereof have also been filed. The
Charter Conversion Applications, the Conversion Application, the Holding Company
Application and the BMA Application are referred to herein collectively as the
"Reorganization Applications." The Conversion Application includes, among other
things, the Plan of Conversion.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-1 (File No._________) for the
registration of the Shares under the
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Securities Act of 1933, as amended (the "1933 Act"). Such registration
statement, as filed on June 23, 2000 and as amended on August 11, 2000,
contained a prospectus relating to the Subscription and Community Offerings and
was declared effective by the Commission on August 14, 2000. On September ___,
the Company filed a post-effective amendment to such registration statement (the
"Post-Effective Amendment") to add a preliminary prospectus for use by the
Underwriters in the public offering and, if such Post-Effective Amendment has
not become effective, the Company will prepare and file, prior to the effective
date of such Post-Effective Amendment, an amendment to such Post-Effective
Amendment, including a final prospectus. Each prospectus used by the
Underwriters before the time such Post-Effective Amendment becomes effective is
herein called a "preliminary prospectus".
Such registration statement, including the exhibits thereto, at the
time the Post-Effective Amendment becomes effective, is herein called the
"Registration Statement." The public offering prospectus added to the
Registration Statement by means of the Post-Effective Amendment, at the time the
Post-Effective Amendment becomes effective, is herein called the "Public
Offering Prospectus", except that if any revised prospectus provided to the
Underwriters by the Company for use in connection with the offering of the
Shares differs from the public offering prospectus included in the Registration
Statement at the time the Post-Effective Amendment becomes effective (whether or
not such prospectus is required to be filed pursuant to Rule 424(b) under the
1933 Act ("Rule 424(b)"), the term "Public Offering Prospectus" shall refer to
such revised prospectus from and after the time it is first furnished to the
Underwriters for such use.
The Company understands that the Underwriters propose to make a public
offering of the Shares (the "Public Offering") as soon as possible after the
Post-Effective Amendment becomes effective. The Underwriters may assemble and
manage a selling group of broker-dealers that are members of the National
Association of Securities Dealers, Inc. ("NASD") to participate in the
solicitation of purchase orders for the Shares.
SECTION 1. Sale and Delivery to the Underwriters. On the basis of the
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representations and warranties herein contained and subject to the terms and
conditions herein set forth, the Company agrees to sell to the Underwriters, and
the Underwriters agree severally and not jointly, to purchase from the Company,
a number of Initial Shares set forth opposite the respective names of the
Underwriters in Schedule I hereto, at a price and on the other terms set forth
herein and in the Price Agreement.
In addition, on the basis of the representations and warranties herein
contained and subject to the terms and conditions herein set forth, the Company
hereby grants to the several Underwriters an option to purchase all or a portion
of the Option Shares at a price and on the other terms set forth herein and in
the Price Agreement.
The option hereby granted will expire at 5:00 p.m. Eastern time on the
30th day after the date the Post-Effective Amendment is declared effective by
the Commission (or at 5:00 p.m. Eastern time on the next business day following
the 30th day if such 30th day is not a business day) and may be exercised, on
one occasion only, solely for the purpose of covering over-allotments which may
be made in connection with the offering and distribution of the Initial Shares
upon notice by the Underwriters to the Company setting forth the number of
Option Shares as to which the Underwriters are exercising the option and the
time, date and place of payment and delivery for the Option Shares. Such time
and date of delivery (the "Option Closing Time") shall be determined by the
Underwriters but shall not be later than five full business days after the
exercise of said option, nor in any event prior to the Closing Time, as
hereinafter defined, nor earlier than the second business day after the date on
which the notice of the exercise of the option shall have been given.
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The number of Option Shares to be sold to each Underwriter shall be
the number which bears the same ratio to the aggregate number of Option Shares
purchased as the number of Initial Shares set forth opposite the name of such
Underwriter in Schedule I hereto bears to __________, subject, however to such
adjustments to eliminate any fractional shares as the Representatives in their
sole discretion shall make.
SECTION 2. Closing Time; Release of Funds and Delivery of
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Certificates. Payment of the purchase price for, and delivery of certificates
------------
for, the Initial Shares shall be made at the offices of ___________, or at such
other place as shall be agreed upon by the Company and the Representatives, at
8:00 a.m. Eastern time on the third full business day after the effective date
of the Post-Effective Amendment, or at such other time not earlier than three
nor more than ten full business days thereafter as the Representatives and the
Company shall determine (such date and time of payment and delivery being herein
called the "Closing Time"). In addition, in the event that any or all of the
Option Shares are purchased by the Underwriters, payment of the purchase price
for, and delivery of certificates for, such Option Shares shall be made at the
above-mentioned office of ______________, or at such other place as shall be
agreed upon by the Company and the Representatives, at the Option Closing Time
as specified in the notice from the Representatives to the Company. Payment for
the Initial Shares and the Option Shares, as the case may be, shall be made to
the Company by wire transfer of immediately available funds, against delivery of
certificates for the Initial Shares or Option Shares, as the case may be, to the
Representatives for the respective accounts of the Underwriters.
Certificates for the Initial Shares and the Option Shares, as the case
may be, shall be registered in such name or names and in such denominations as
the Representatives may request in writing at least two business days prior to
the Closing Time or the Option Closing Date, as the case may be. The Company
will make such certificates available for examination by the Representatives and
counsel to the Underwriter not later than 10:00 a.m. Eastern time on the
business day prior to the Closing Time or the Option Closing Time, as the case
may be.
SECTION 3. Public Offering. The Representatives hereby advise the
---------------
Company that the Underwriters intend to offer for sale to the public, as
described in the Public Offering Prospectus, their respective portions of the
Shares as soon after this Agreement has been executed and the Post-Effective
Amendment has been declared effective as the Representatives, in their sole
judgment, have determined is advisable and practicable.
SECTION 4. Representations and Warranties; Certain Covenants.
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A. The ▇▇▇▇▇▇ Parties jointly and severally represent and warrant to
and covenant with the Underwriters as follows:
a. At the time the Post-Effective Amendment, including the
Public Offering Prospectus contained therein, becomes effective, and at all
times subsequent thereto up to the Closing Time referred to above (and, with
respect to the Option Shares, to the Option Closing Time referred to above), the
Registration Statement will comply in all material respects with the
requirements of the 1933 Act and the rules and regulations of the Commission
under the 1933 Act (the "1933 Act Regulations") and the Registration Statement,
any preliminary or final Public Offering Prospectus, any Blue Sky Application
(as defined in Section 7 hereof) or any Sales Information (as defined in Section
7 hereof) authorized by any ▇▇▇▇▇▇ Party for use in connection with the Public
Offering 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, in light of the circumstances under which they were made,
not misleading. The representations and warranties in this Section 4(a) shall
not apply to statements in or omissions from the Registration Statement, any
preliminary or final Public Offering Prospectus, any Blue Sky Application or
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any Sales Information made in reliance upon and in conformity with information
furnished in writing to the ▇▇▇▇▇▇ Parties by the Underwriters expressly
regarding the Underwriters for use under the captions ______________, in the
Public Offering Prospectus.
b. The Company has filed with the OTS the Charter Conversion
Application, the Conversion Application, including the Plan, the Registration
Statement and the Public Offering Prospectus, the Holding Company Application
and the BMA Application, each of which included exhibits and supplemental
material, and has filed an amendment or amendments thereto, as required, and has
published notice of such filings, as required, which Applications have been or
prior to the Closing Time will be approved by the OTS; and the Plan has been
adopted by the Board of Trustees of the MHC and the directors of ▇▇▇▇▇▇
Financial, the Company and the Bank, and has been or prior to the Closing Time
will be approved by the Members of the MHC and the stockholders of ▇▇▇▇▇▇
Financial and the Bank.
c. At the Closing Time, (i) the Charter Conversions will
have been effected in accordance with the Charter Conversion Regulations and all
other applicable material laws, regulations, decisions and orders, including in
compliance with all terms, conditions, requirements and provisions precedent to
the Charter Conversions imposed upon the ▇▇▇▇▇▇ Parties by the OTS, any state
regulatory authority or any other regulatory authority; (ii) the Conversion and
the Conversion Offering will have been effected in the manner described in the
Public Offering Prospectus and in accordance with the Plan, the Conversion
Regulations and all other applicable material laws, regulations, decisions and
orders, including in compliance with all terms, conditions, requirements and
provisions precedent to the Conversion and the Conversion Offering imposed upon
the ▇▇▇▇▇▇ Parties by the Commission, the OTS, any state regulatory or Blue Sky
authority or any other regulatory authority, and (iii) the Constituent
Institutions will have completed the conditions precedent to the Merger in
accordance with the Merger Agreement, and all applicable laws, regulations,
decisions and orders, including all material terms, conditions, requirements and
provisions precedent to the Merger imposed upon the Constituent Institutions by
the OTS or any other regulatory authority, other than those which the regulatory
authority permits to be completed after the effective time of the Merger
("Effective Time")
d. No order has been issued by the OTS or any state
regulatory or Blue Sky authority preventing or suspending the use of the Public
Offering Prospectus, and no action by or before any such governmental entity to
revoke any approval, authorization or order of effectiveness related to the
Conversion or the Conversion Offering is pending or threatened.
e. At the time of the approval of the Reorganization
Applications by the applicable regulatory authorities (including any amendment
or supplement thereto) and at all times subsequent thereto until the Closing
Time, the Reorganization Applications complied and will comply in all material
respects with the Reorganization Regulations. The Public Offering Prospectus
contained in the Reorganization Applications (including any amendment or
supplement thereto), at the time of the approval of the Reorganization
Applications by the OTS and at all times subsequent thereto until the Closing
Time and the Effective Time, and, if applicable, the Option Closing Time,
complied and will comply in all material respects with the Reorganization
Regulations.
f. RP Financial, LC. ("RP Financial"), which prepared the
Independent Valuation dated as of [________], 2000, described in the Public
Offering Prospectus, is independent with respect to the ▇▇▇▇▇▇ Parties within
the meaning of the Plan and the Conversion Regulations and is believed by the
▇▇▇▇▇▇ Parties to be experienced and expert in the valuation and the appraisal
of business entities, including savings institutions. The ▇▇▇▇▇▇ Parties believe
that RP Financial has prepared the pricing information set forth in the Public
Offering Prospectus in accordance with the requirements of the Conversion
Regulations.
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▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP ("▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇"), the firm which
certified the financial statements of ▇▇▇▇▇▇ Financial, Inc. filed as part of
the Registration Statement, is, with respect to the ▇▇▇▇▇▇ Parties, an
independent certified public accountant as required by the 1933 Act and the 1933
Act Regulations. Ernst & Young ("E&Y"), the firm which certified the financial
statements of York Financial filed as part of the Registration Statement, is,
with respect to York Financial and York Federal, an independent certified public
accountant as required by the 1933 Act and the 1933 Act Regulations.
h. The consolidated financial statements, together with the
related schedules and notes thereto, included in the Registration Statement and
which are part of the Public Offering Prospectus present fairly the financial
condition, results of operations, changes in retained earnings and cash flows of
each of (i) ▇▇▇▇▇▇ Financial, Inc. and its consolidated subsidiaries and (ii)
York Financial and its consolidated subsidiaries, at and for the dates indicated
and the periods specified and comply as to form in all material respects with
the applicable accounting requirements of the 1933 Act Regulations. Such
financial statements have been prepared in conformity with generally accepted
accounting principles applied on a consistent basis during the periods involved,
present fairly in all material respects the information required to be stated
therein and are consistent with financial statements and other reports filed by
▇▇▇▇▇▇ Financial, Inc. and/or York Financial with their applicable bank
regulatory authorities except to the extent that accounting principles employed
in such filings conform to the requirements of such authorities and not
necessarily to generally accepted accounting principles. The other financial,
statistical and pro forma information and related notes thereto included in the
Public Offering Prospectus present fairly the information shown therein on a
basis consistent with the audited financial statements of ▇▇▇▇▇▇ Financial, Inc.
and/or York Financial included in the Registration Statement and which are part
of the Public Offering Prospectus, and as to the pro forma adjustments, such
adjustments have been properly applied on the basis described therein.
i. Since the respective dates as of which information is
given in the Registration Statement and Public Offering Prospectus, except as
may otherwise be stated therein: (i) there has not been any material adverse
change in the financial condition, net income, capital, properties, affairs or
prospects of the ▇▇▇▇▇▇ Parties, York Financial, York Federal, or their
respective subsidiaries (the "combined institution"), taken as a whole, whether
or not arising in the ordinary course of business, (ii) there has not been any
material increase in the long-term debt of the combined institution, taken as a
whole, nor have the ▇▇▇▇▇▇ Parties, York Financial, York Federal or their
respective subsidiaries issued any securities or incurred any liability or
obligations for borrowing other than in the ordinary course of business, (iii)
there have not been any material transactions entered into by the ▇▇▇▇▇▇
Parties, York Financial, York Federal or their respective subsidiaries, except
those transactions entered into in the ordinary course of business and those
specifically described in or contemplated by the Public Offering Prospectus,
including the execution of loan documents pertaining to the ESOP, and (iv) the
capitalization, liabilities, assets, properties and business of the ▇▇▇▇▇▇
Parties, York Financial, York Federal and their respective subsidiaries conform
in all material respects to the descriptions thereof contained in the Public
Offering Prospectus. The ▇▇▇▇▇▇ Parties, York Financial, York Federal and their
subsidiaries have no material liability of any kind, contingent or otherwise,
except as reflected in the financial statements filed as part of the
Registration Statement or otherwise set forth in the Public Offering Prospectus.
j. The Company and ▇▇▇▇▇▇ Financial are both Pennsylvania
corporations, duly organized and validly existing and in good standing under the
laws of the Commonwealth of Pennsylvania with the corporate power and authority
to conduct the business and own the property of ▇▇▇▇▇▇ Financial as described in
the Registration Statement and Public Offering Prospectus under Pennsylvania
law. The Company is duly registered with the OTS as a savings and loan holding
company under the Home Owners' Loan Act ( "HOLA"). Prior to the Charter
Conversions, ▇▇▇▇▇▇ Financial was duly registered with the Board of Governors of
the Federal Reserve System as a bank holding company. Upon completion of the
Charter Conversions, ▇▇▇▇▇▇ Financial will be duly registered with the OTS as a
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federally chartered savings and loan holding company, with the corporate power
and authority to conduct its business and own its property as described in the
Registration Statement and Public Offering Prospectus.
k. The Bank is a Pennsylvania-chartered savings bank, duly
organized and validly existing and in good standing under the laws of the
Commonwealth of Pennsylvania with the corporate power and authority to conduct
its business and own its property as described in the Registration Statement and
Public Offering Prospectus under Pennsylvania law. Upon completion of the
Charter Conversions, the Bank will be a duly organized and validly existing
federally chartered savings bank and after the Conversion will continue as such,
and will have the corporate power and authority to conduct its business and own
its property as described in the Registration Statement and Public Offering
Prospectus under the HOLA and the regulations thereunder.
l. The MHC is a Pennsylvania-chartered mutual holding
company, duly organized and validly existing and in good standing under the laws
of the Commonwealth of Pennsylvania with the corporate power and authority to
conduct its business and own its property as described in the Registration
Statement and Public Offering Prospectus. Prior to the Charter Conversions, the
MHC was duly registered with the Board of Governors of the Federal Reserve
System as a bank holding company. Upon completion of the Charter Conversions,
the MHC will be duly organized and registered with the OTS as a federally
chartered savings and loan holding company, with the corporate power and
authority to conduct its business and own its property as described in the
Registration Statement and Public Offering Prospectus.
m. York Financial is a Pennsylvania corporation, duly
organized and validly existing and in good standing under the laws of the
Commonwealth of Pennsylvania with the corporate power and authority to conduct
its business and own its property as described in the Registration Statement and
Public Offering Prospectus. York Financial is duly registered with the OTS as a
savings and loan holding company under the HOLA. York Federal is a federally
chartered savings and loan association, duly organized and validly existing
under the laws of the United States with the corporate power and authority to
conduct its business and own its property as described in the Registration
Statement and Public Offering Prospectus.
n. The ▇▇▇▇▇▇ Parties, York Financial, York Federal and
their subsidiaries have obtained all material licenses, permits and other
governmental authorizations currently required for the conduct of their
respective businesses (including , in the case of the Company, for the conduct
of the business of ▇▇▇▇▇▇ Financial following the Conversion); all such
licenses, permits and governmental authorizations are in full force and effect;
the ▇▇▇▇▇▇ Parties, York Financial, York Federal and their subsidiaries are in
all material respects complying with all laws, rules, regulations and orders
applicable to the operation of their respective businesses; and none of the
▇▇▇▇▇▇ Parties, York Financial, York Federal or their subsidiaries has received
notice of any proceeding or action relating to the revocation or modification of
any such license, permit or governmental authorization which, singly or in the
aggregate, if subject to an unfavorable decision, ruling or finding, might
materially and adversely affect the conduct of the business, the financial
condition or the net income, affairs or prospects of the combined institution
taken as a whole.
o. The articles of incorporation, charter or similar
instruments of the ▇▇▇▇▇▇ Parties, York Financial, York Federal are in full
force and effect; no conservator or receiver has been appointed for any of the
▇▇▇▇▇▇ Parties, York Financial, or York Federal; and the Bank and York Federal
are each operating as an insured depository institution. Each of the ▇▇▇▇▇▇
Parties, York Financial, and York Federal is duly qualified to transact business
and is in good standing in each jurisdiction in which its ownership or leasing
of property or the conduct of its business (currently and as contemplated
following the Reorganization)
8
requires such qualification unless the failure to be so qualified in one or more
of such jurisdictions would not have a material adverse effect on the financial
condition or the business, operations, net income or prospects of the combined
institution, taken as a whole.
p. Upon consummation of the Reorganization, all of the
outstanding capital stock of the Bank will be duly authorized and validly issued
and fully paid and nonassessable; and all such stock will be owned directly by
the Company, free and clear of all liens, encumbrances, claims or other
restrictions. Each of the ▇▇▇▇▇▇ Parties, York Financial, and York Federal does
not own equity securities or any equity interest in any other business
enterprise except as described in the Public Offering Prospectus; each of the
subsidiaries has been duly organized and is validly existing and in good
standing under the laws of its jurisdiction of organization with the authority
to conduct its business and own its property as described in the Registration
Statement and the Public Offering Prospectus; all of the outstanding stock of
each subsidiary has been duly authorized and validly issued and is fully paid
and nonassessable; all such stock is owned directly by ▇▇▇▇▇▇ Financial, Inc.,
the Bank, York Financial or York Federal, as the case may be, free and clear of
all liens, encumbrances, claims or other restrictions; and each of the
subsidiaries is duly qualified to transact business and is in good standing in
each jurisdiction in which its ownership or leasing of property or the conduct
of its business requires such qualification, unless the failure to be so
qualified would not have a material adverse effect on the operations of the
combined institution, taken as a whole. The activities of the ▇▇▇▇▇▇
subsidiaries are permitted to subsidiaries of Pennsylvania-chartered and
federally chartered savings banks, and the activities of the York subsidiaries
are permitted to subsidiaries of federally chartered savings banks, in each case
by the rules, regulations, policies and practices of the Pennsylvania Department
of Banking (in the case of the ▇▇▇▇▇▇ subsidiaries), the OTS (in the case of
both the ▇▇▇▇▇▇ and the York subsidiaries), and any other state or federal
authority having jurisdiction over such matters.
q. The deposit accounts of the Bank and York Federal are,
and following the Closing Time of the Reorganization the deposit accounts of the
Bank will be, insured by the Savings Association Insurance Fund (the "SAIF"), as
administered by the FDIC, up to the maximum amounts allowed by law. Upon
consummation of the Conversion, the liquidation account for the benefit of
Eligible Account Holders and Supplemental Eligible Account Holders ("Liquidation
Account") will be duly established in accordance with the requirements of the
Conversion Regulations.
r. Upon consummation of the Reorganization, the authorized
equity capital of the Company will consist of 100,000,000 shares of common stock
and 10,000,000 shares of preferred stock, and the issued and outstanding equity
capital of the Company will be consistent with that set forth in the Public
Offering Prospectus under the caption "Historical and Pro Forma Capitalization";
no shares of Common Stock, or securities exercisable into or exchangeable for
Common Stock, will have been issued prior to the Closing Time (other than ____
shares held by the Bank, which shares will be cancelled upon consummation of the
Conversion); the Shares will have been duly and validly authorized for issuance
and, when issued and delivered by the Company to the Underwriters pursuant to
this Agreement against payment of the consideration set forth herein, will be
duly and validly issued and fully paid and nonassessable, the issuance of the
Shares is not subject to any preemptive rights; and the terms and provisions of
the Common Stock will conform in all material respects to the description
thereof contained in the Public Offering Prospectus. Upon the issuance of the
Shares, good title to the Shares will be transferred from the Company to the
Underwriters against payment therefor, subject to such claims as may be asserted
against the Underwriters by third-party claimants.
s. As of the date hereof and as of the Closing Time and the
Option Closing Time, as the case may be, none of the ▇▇▇▇▇▇ Parties, York
Financial, York Federal, or any subsidiary is or will be in violation of its
charter or By- Laws or in default in the performance or observance of any
material obligation, agreement, covenant or condition contained in any material
contract, lease, loan agreement,
9
indenture or other instrument to which it is a party or by which it or any of
its property may be bound; the consummation of the Reorganization, the
execution, delivery and performance of this Agreement and the consummation of
the transactions herein contemplated have been duly and validly authorized by
all necessary corporate action on the part of the ▇▇▇▇▇▇ Parties, and this
Agreement has been validly executed and delivered by the ▇▇▇▇▇▇ Parties and is
the valid, legal and binding obligation of the ▇▇▇▇▇▇ Parties, enforceable in
accordance with its terms, except to the extent that rights to indemnity
hereunder may be limited under applicable law and subject to bankruptcy,
insolvency, reorganization or other laws related to or affecting the enforcement
of creditors' rights generally and equitable principles limiting the right to
obtain specific enforcement or similar equitable relief. The execution and
delivery of this Agreement, the fulfillment of the terms herein set forth and
the consummation of the transactions herein contemplated will not (i) conflict
with or constitute a breach of, or default (or an event which, with notice or
lapse of time, or both, would constitute a default) under, the charter or By-
Laws of the ▇▇▇▇▇▇ Parties, York Financial, York Federal, or any subsidiary, or
any material contract, lease or other instrument to which the ▇▇▇▇▇▇ Parties,
York Financial, York Federal, or any subsidiary is a party or in which the
▇▇▇▇▇▇ Parties, York Financial, York Federal, or any subsidiary has a beneficial
interest, or any applicable law, rule, regulation or order; (ii) violate any
authorization, approval, judgment, decree, order, statute, rule or regulation
applicable to the ▇▇▇▇▇▇ Parties, York Financial, York Federal, or any
subsidiary; or (iii) result in the creation of any lien, charge or encumbrance
upon any property of the ▇▇▇▇▇▇ Parties, York Financial, York Federal, or any
subsidiary.
t. The ▇▇▇▇▇▇ Parties have all such power, authority,
authorizations, approvals and orders as may be required to enter into this
Agreement and to carry out the provisions and conditions hereof, and the Company
has all such power, authority, authorizations and orders as may be required to
issue and sell the Shares as provided in the Plan and described in the Public
Offering Prospectus, subject to the approval of the applicable regulatory
authorities and the satisfaction of any conditions of such approval.
u. The ▇▇▇▇▇▇ Parties, York Financial, York Federal, and
their respective subsidiaries have good and marketable title to all properties
and assets which are material to the business of the combined institution taken
as a whole, including those properties and assets described in the Public
Offering Prospectus as owned by them, free and clear of all liens, except such
liens as are described in the Public Offering Prospectus or are not materially
significant or important in relation to the business of the combined institution
and its subsidiaries on a consolidated basis; and all leases and subleases which
are material to the business of the combined institution taken as a whole under
which the ▇▇▇▇▇▇ Parties, York Financial, York Federal, or any subsidiary holds
properties, including those leases and subleases described in the Public
Offering Prospectus, are in full force and effect.
v. As of the date hereof and as of the Closing Time and the
Effective Date and the Option Closing Time, as the case may be, the ▇▇▇▇▇▇
Parties, York Financial, and York Federal, are not and will not be in violation
of any directive from the Commission, the OTS, the FDIC, the Board of Governors
of the Federal Reserve System ("FRB"), the Pennsylvania Department of Banking or
any other agency to make any material change in the method of conducting their
respective businesses so as to comply in all material respects with all
applicable statutes and regulations (including, without limitation, regulations,
decisions, directives and orders of such governmental agencies), and no suit or
proceeding, charge, investigation or action before or by any court, regulatory
authority or governmental agency or body is or will be pending or, to the
knowledge of the ▇▇▇▇▇▇ Parties, threatened, which might materially and
adversely affect the Conversion or the Merger, the performance of this Agreement
or the consummation of the transactions contemplated in the Plan and as
described in the Public Offering Prospectus, or which might result in any
material adverse change in the financial condition, net income, capital,
properties, affairs or prospects of the combined institution taken as a whole,
or which would materially affect its respective properties and assets.
10
w. The ▇▇▇▇▇▇ Parties have received an opinion of their counsel,
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, Washington, D.C., with respect to the
federal income tax consequences of the Reorganization, and an opinion of ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, Washington, D.C., with respect to the
Pennsylvania state income tax consequences of the Reorganization; the federal
tax opinion of ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, Washington, D.C., is
accurately summarized in the Conversion Application and the Public Offering
Prospectus. The facts and representations upon which such opinions are based are
truthful, accurate and complete, and no ▇▇▇▇▇▇ Party will take any action
inconsistent therewith.
x. No default exists, and no event has occurred which, with notice
or lapse of time or both, would constitute a default, on the part of any ▇▇▇▇▇▇
Party or any subsidiary in the due performance and observance of any term,
covenant or condition of any indenture, mortgage, deed of trust, note, bank loan
or credit agreement or any other instrument or agreement to which any ▇▇▇▇▇▇
Party or subsidiary thereof is a party or by which any of them or any of their
respective property is bound or affected which, in any such case, is material to
the ▇▇▇▇▇▇ Parties and their subsidiaries taken as a whole; such agreements are
in full force and effect and no other party to any such agreement has instituted
or, to the knowledge of the ▇▇▇▇▇▇ Parties, threatened any action or proceeding
wherein the ▇▇▇▇▇▇ Parties or any subsidiary would or might be alleged to be in
default thereunder. No default exists, and no event has occurred which with
notice or lapse of time, or both, would constitute a default, on the part of
York Financial, York Federal or any subsidiary in the due performance and
observance of any term, covenant or condition of any indenture, mortgage, deed
of trust, note, bank loan or credit agreement or any other instrument or
agreement to which York Financial, York Federal or any subsidiary is a party or
by which any of them or any of their respective property is bound or affected
which, in any such case, is material to York Financial, York Federal and its
subsidiaries, taken as a whole; such agreements are in full force and effect and
no other party to any such agreement has instituted or, to the knowledge of York
Financial or York Federal, threatened any action or proceeding wherein York
Financial, York Federal or any subsidiary would or might be alleged to be in
default thereunder.
y. Subsequent to the date the Registration Statement is declared
effective by the Commission and prior to the Closing Time, except as otherwise
may be indicated or contemplated therein, none of the ▇▇▇▇▇▇ Parties or any
subsidiary has or will have: (i) issued any securities or incurred any liability
or obligation, direct or contingent, for borrowed money, except borrowings from
the same or similar sources indicated in the Public Offering Prospectus in the
ordinary course of its business, or (ii) entered into any transaction which is
material in light of the business and properties of the ▇▇▇▇▇▇ Parties taken as
a whole. Subsequent to the date the Registration Statement is declared effective
by the Commission and prior to the Closing Time, except as otherwise may be
indicated or contemplated therein, none of York Financial, York Federal or any
subsidiary has or will have: (i) issued any securities or incurred any liability
or obligation, direct or contingent, for borrowed money, except borrowings from
the same or similar sources indicated in the Public Offering Prospectus in the
ordinary course of its business, or (ii) entered into any transaction which is
material in light of the business and properties of York Financial and York
Federal taken as a whole. For purposes of this Section 4(A)(y), obligations for
borrowed money do not include deposits.
z. The ▇▇▇▇▇▇ Parties, York Financial, York Federal and their
subsidiaries have filed all federal, state and local tax returns required to be
filed and have made timely payment of all taxes due and payable in respect of
such returns and no deficiency has been asserted with respect thereto by any
taxing authority.
aa. Except as disclosed in the Public Offering Prospectus with
respect to the ESOP, none of the ▇▇▇▇▇▇ Parties, York Financial, York Federal or
any subsidiary has made any payment of funds of the ▇▇▇▇▇▇ Parties, York
Financial, York Federal or any subsidiary as a loan for the purchase of the
Shares
11
or made any other payment of funds prohibited by law, and no funds have been set
aside to be used for any payment prohibited by law.
bb. Prior to the Conversion, (x) the Bank had authorized capital
stock consisting of ________ shares of common stock, ________ of which were
outstanding, and _________ shares of preferred stock, none of which were
outstanding, (y) ▇▇▇▇▇▇ Financial, Inc. had authorized capital stock consisting
of 100,000,000 shares of common stock, ________ of which were publicly held and
______ of which were held by the MHC, and 10,000,000 shares of preferred stock,
none of which were outstanding and (a) the MHC was not authorized to issue
capital stock. None of the ▇▇▇▇▇▇ Parties has: (i) other than as described in
the Public Offering Prospectus issued any securities within the last 18 months
(except for notes to evidence other bank loans and reverse repurchase
agreements); (ii) had any material dealings within the 12 months prior to the
date hereof with any member of the NASD, or any person related to or associated
with such member, other than discussions and meetings relating to the Offering
and the Merger and routine purchases and sales of securities for or from its
portfolio; (iii) entered into a financial or management consulting agreement
relating to the sale of stock, except as contemplated hereunder and in
connection with the Merger; or (iv) engaged any intermediary between the
Underwriters and any ▇▇▇▇▇▇ Party in connection with any offering of shares of
its capital stock, and no person is being compensated in any manner for such
service.
cc. Neither the ▇▇▇▇▇▇ Parties, York Financial, or York Federal is
required to be registered under the Investment Company Act of 1940, as amended.
dd. To the knowledge of the ▇▇▇▇▇▇ Parties, the Company has taken all
necessary action to make such filings and/or to qualify or register the Shares
for offer and sale in the Conversion and the Merger under the securities or Blue
Sky laws of all jurisdictions wherein such Shares will be offered which require
such filings and/or qualification or registration.
ee. All Sales Information used by the Company in connection with the
Offering that is required by the Conversion Regulations to be filed has been
filed with and approved by the applicable regulatory authority.
ff. Except for information provided in writing to the ▇▇▇▇▇▇ Parties
by the Underwriters for use in the Public Offering Prospectus, the Company and
the Bank have not relied upon the Underwriters or its legal or other advisors
for any legal, tax or accounting advice in connection with the Conversion.
gg. To the knowledge of the ▇▇▇▇▇▇ Parties on the one hand and to the
knowledge of York Financial and York Federal on the other hand, each of the
▇▇▇▇▇▇ Parties, York Financial, York Federal and their respective subsidiaries
is in compliance with all laws, rules and regulations relating to environmental
protection, except where such failure would not have a material adverse effect
on the financial condition of the combined institution taken as a whole, and
none of the ▇▇▇▇▇▇ Parties, York Financial, York Federal or any subsidiary has
been notified or is otherwise aware that any of them is potentially liable, or
is considered potentially liable, under the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended, or any similar
state law. No actions, suits, regulatory investigations or other proceedings are
pending, or, to the knowledge of the ▇▇▇▇▇▇ Parties, threatened against any
▇▇▇▇▇▇ Party, York Financial, York Federal or any subsidiary relating to
environmental protection, nor does any ▇▇▇▇▇▇ Party have any reason to believe
any such proceedings may be brought against any of such entities. To the
knowledge of the ▇▇▇▇▇▇ Parties on the one hand and to the knowledge of York
Financial and York Federal, on the other hand, no disposal, release or discharge
of hazardous or toxic substances, pollutants or contaminants, including
petroleum and gas products, as any of such terms may be defined under federal,
state or local law, has occurred on, in, at or about any of the
12
facilities or properties owned, operated or leased by, or pledged to, any ▇▇▇▇▇▇
Party, York Financial, York Federal or any subsidiary, except such disposal,
release or discharge which would not have a material adverse effect on the
combined institution taken as a whole.
hh. No labor dispute with the employees of any ▇▇▇▇▇▇ Party, York
Financial, York Federal or any subsidiary exists or, to the knowledge of the
▇▇▇▇▇▇ Parties, is imminent.
ii. All of the loans represented as assets on the most recent
financial statements or selected financial information of ▇▇▇▇▇▇ Financial, Inc.
and York Financial included in the Public Offering Prospectus meet or are exempt
from all requirements of federal, state and local law pertaining to lending,
including, without limitation, truth in lending (including the requirements of
Regulation Z and 12 C.F.R. Part 226), real estate settlement procedures,
consumer credit protection, equal credit opportunity and all disclosure laws
applicable to such loans, except for violations which, if asserted, would not
result in a material adverse effect on the financial condition, results of
operations or business of the combined institution taken as a whole.
jj. Any certificate signed by an officer of any ▇▇▇▇▇▇ Party and
delivered to the Underwriters or their counsel that refers to this Agreement
shall be deemed to be a representation and warranty by such ▇▇▇▇▇▇ Party to the
Underwriters as to the matters covered thereby with the same effect as if such
representation and warranty were set forth herein.
kk. Each person who is an officer or director of ▇▇▇▇▇▇ Financial and
who will be an officer or director of the Company following the Reorganization
has agreed to sign an agreement substantially in the form attached hereto as
Exhibit B (the "Lock-up Agreements"). The Company has provided to counsel for
the Underwriters true, accurate and complete copies of all of the Lock-up
Agreements presently in effect or effected hereby. The Company hereby represents
and warrants that it will not release any of its officers, directors or other
stockholders from any Lock-up Agreements currently existing or hereafter
effected without the prior written consent of the Representatives.
B. Representations and Warranties of the Representatives. Each
-----------------------------------------------------
Representative represents and warrants to the ▇▇▇▇▇▇ Parties as follows:
a. Such Representative is registered as a broker-dealer with the
Commission and is a member of the NASD.
b. Such Representative is validly existing and in good standing as a
corporation under the laws of its state of incorporation with the corporate
power and authority to provide the services to be furnished to the Company
hereunder.
c. The execution and delivery of this Agreement and the consummation
of the transactions herein contemplated have been duly and validly authorized by
all necessary corporate action on the part of such Representative, and this
Agreement is a legal, valid and binding obligation of such Representative,
enforceable in accordance with its terms, except to the extent that rights to
indemnity hereunder may be limited under applicable law and subject to
bankruptcy, insolvency, reorganization or other laws related to or affecting the
enforcement of creditors' rights generally and equitable principles limiting the
right to obtain specific enforcement or similar equitable relief.
d. Such Representative and, to such Representative's knowledge, its
employees, agents and representatives who shall perform any of the services
required hereunder to be performed by the Underwriters shall be duly authorized
and shall have all licenses, approvals and permits necessary to perform such
services.
13
e. The execution and delivery of this Agreement by such
Representative, the fulfillment of the terms set forth herein and the
consummation of the transactions herein contemplated shall not violate or
conflict with the corporate charter or By-Laws of such Representative or
violate, conflict with or constitute a breach of, or default (or an event which,
with notice or lapse of time, or both, would constitute a default) under, any
material agreement, indenture or other instrument by which such Representative
is bound or under any governmental license or permit or any law, administrative
regulation, authorization, approval or order or court decree, injunction or
order applicable to it.
f. Any funds received by such Representative to purchase Shares will
be handled in accordance with Rule 15c2-4 under the Securities Exchange Act of
1934 (the "1934 Act"), if applicable.
g. There is not now pending or, to such Representative's knowledge,
threatened against such Representative any material action or proceeding before
the Commission, the NASD, any state securities commission or any state or
federal court concerning such Representative's activities as a broker-dealer.
SECTION 5. Additional Covenants of the ▇▇▇▇▇▇ Parties. The ▇▇▇▇▇▇ Parties
------------------------------------------
hereby jointly and severally covenant with the Underwriters as follows:
a. The ▇▇▇▇▇▇ Parties will not file any amendment or supplement to
the Registration Statement or any Reorganization Application without notifying
the Representatives of its intention to do so and providing the Representatives
and counsel to the Underwriters an opportunity to review such amendment or
supplement, nor will any ▇▇▇▇▇▇ Party file any such amendment or supplement to
which the Representatives or counsel to the Underwriters shall reasonably
object.
b. The ▇▇▇▇▇▇ Parties will use their best efforts to cause each
Reorganization Application not heretofore approved to be approved by the
applicable regulatory authority and will promptly upon receipt of any
information concerning the events listed below notify the Representatives: (i)
of the approval of any Reorganization Application not heretofore approved; (ii)
of the receipt of any comments from the OTS or any other governmental entity
with respect to the Charter Conversion, the Conversion, the Merger or the
transactions contemplated by this Agreement; (iii) of the request by the OTS or
any other governmental entity for any amendment or supplement to the
Registration Statement, the Public Offering Prospectus or any Reorganization
Application or for additional information; (iv) of the issuance by the
Commission, the OTS or any other governmental entity of any order or other
action suspending the Charter Conversion, the Conversion or the Merger or the
use of the Registration Statement or the Public Offering Prospectus or any other
filing of the Company and the Bank under the Reorganization Regulations, the
1933 Act, 1933 Act Regulations or other applicable law, or the threat of any
such action; (v) of the issuance by the Commission, the OTS or any other state
governmental authority of any stop order suspending the effectiveness of the
Registration Statement or any Reorganization Application or of the initiation or
threat of any proceedings for such purpose; or (vi) of the occurrence of any
event mentioned in paragraph (f) below. The ▇▇▇▇▇▇ Parties will make every
reasonable effort to prevent the issuance by the Commission, the OTS or any
other governmental authority of any such order and, if any such order shall at
any time be issued, to obtain the lifting thereof at the earliest possible time.
The ▇▇▇▇▇▇ Parties will provide copies of the foregoing comments, requests and
orders to the Representatives upon receipt of such items.
c. The ▇▇▇▇▇▇ Parties will deliver to the Representatives and to
counsel to the Underwriters two conformed copies of each of the following
documents, with all exhibits: each Reorganization Application as originally
filed and each amendment or supplement thereto and the Registration Statement as
originally filed and each amendment thereto. In addition, the ▇▇▇▇▇▇ Parties
will
14
also deliver to the Representatives such number of copies of the closing
documents with respect to the Conversion and the Offering as the Representatives
may reasonably request.
d. The ▇▇▇▇▇▇ Parties will furnish to each Underwriter, from time to
time during the period when the Public Offering Prospectus is required to be
delivered under federal or state securities laws or regulations or the
applicable rules and regulations of any other governmental entity, such number
of copies of the Public Offering Prospectus (as amended or supplemented) as such
Underwriter may reasonably request for the purposes contemplated by such federal
or state securities laws or regulations or the applicable rules and regulations
of any other governmental entity. The Company authorizes the Underwriters to use
the Public Offering Prospectus (as amended or supplemented) for any lawful
manner in connection with the sale of the Shares.
e. The ▇▇▇▇▇▇ Parties will comply with any and all terms,
conditions, requirements and provisions with respect to the Reorganization and
the transactions contemplated thereby imposed by the Commission, the OTS, any
state regulatory or Blue Sky authority or any other governmental entity,
including the terms, conditions, requirements and provisions contained in the
Reorganization Regulations, the 1933 Act, the 1933 Act Regulations, the 1934 Act
and the rules and regulations of the Commission promulgated under the 1934 Act
(the "1934 Act Regulations").
f. If, at any time during the period when the Public Offering
Prospectus is required to be delivered, any event relating to or affecting any
▇▇▇▇▇▇ Party shall occur, as a result of which it is necessary or appropriate,
in the opinion of counsel for the ▇▇▇▇▇▇ Parties, to amend or supplement the
Registration Statement or the Public Offering Prospectus in order to make the
Registration Statement or Public Offering Prospectus not misleading in light of
the circumstances existing at the time it is delivered to a purchaser, the
▇▇▇▇▇▇ Parties will, at their expense, forthwith prepare, file with the
Commission and furnish to the Underwriters a reasonable number of copies of an
amendment or amendments of, or a supplement or supplements to, the Registration
Statement or Public Offering Prospectus (in form and substance reasonably
satisfactory to the Representatives and counsel to the Underwriters after a
reasonable time for review) which will amend or supplement the Registration
Statement or Public Offering Prospectus so that as amended or supplemented it
will not contain an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in light of the
circumstances existing at the time the Public Offering Prospectus is delivered
to a purchaser, not misleading.
g. The ▇▇▇▇▇▇ Parties will take all necessary actions, in
cooperation with the Representatives, and furnish to whomever the
Representatives may direct such information as may be required to qualify or
register the Shares for the Offering and sale by the Company under the
applicable securities or Blue Sky laws of such jurisdictions as the
Representatives may reasonably designate; provided, however, that the Company
shall not be obligated to file any general consent to service of process or to
qualify to do business in any jurisdiction in which it is not otherwise required
to be so qualified. In each jurisdiction where any of the Shares shall have been
so qualified or registered, the Company will make and file such statements and
reports as are or may be required by the laws of such jurisdiction.
h. The Company will not sell or issue, contract to sell or otherwise
dispose of, for a period of 180 days after the Closing Time, without the prior
written consent of the Representatives, any shares of, or any securities
convertible into or exercisable for shares of, Common Stock other than in
connection with the Merger or any other plan or arrangement described in the
Public Offering Prospectus.
i. During the period in which the Company's Common Stock is
registered under the 1934 Act, the Company will furnish to its stockholders as
soon as practicable after the end of each fiscal
15
year an annual report (including a consolidated balance sheet and consolidated
statements of income, stockholders' equity and cash flows of the Company and the
Bank as at the end of and for such year, certified by independent public
accountants in accordance with Regulation S-X under the ▇▇▇▇ ▇▇▇) and make
available as soon as practicable after the end of each of the first three
quarters of each fiscal year (beginning with the first fiscal quarter ending
after the Closing Time) financial information of the Company and the Bank for
such quarter in reasonable detail.
j. During the period of three years from the date hereof, the
Company will furnish to the Representatives: (i) promptly after it becomes
available, a copy of each report of the Company furnished generally to
stockholders of the Company or furnished to or filed with the Commission under
the 1934 Act or any national securities exchange or system on which any class of
securities of the Company is listed or quoted (including, but not limited to,
reports of Forms 10-K, 10-Q and 8-K and all proxy statements and annual reports
to stockholders), a copy of each other report of the Company mailed to its
stockholders or filed with the Commission or any other supervisory or regulatory
authority or any national securities exchange or system on which any class of
securities of the Company is listed or quoted and each press release and
material news item and article released by the Company or the Bank, and (ii)
from time to time, such other public information concerning the Company and the
Bank as the Underwriters may reasonably request.
k. The Company and the Bank will use the net proceeds from the sale
of the Shares substantially in the manner set forth in the Public Offering
Prospectus under the caption "Use of Proceeds."
l. Other than as permitted by the Reorganization Regulations, the
HOLA, the 1933 Act, the 1933 Act Regulations and the laws of any jurisdiction in
which the Shares are qualified for sale, neither the Company nor the Bank will
distribute any Public Offering Prospectus or other Sales Information in
connection with the offer and sale of the Shares.
m. The Company will make generally available to its security holders
as soon as practicable, but not later than 60 days after the close of the period
covered thereby, an earnings statement (in form complying with the provisions of
Rule 158 of the 1933 Act Regulations) covering a twelve-month period beginning
not later than the first day of the Company's fiscal quarter next following the
effective date (as defined in such Rule 158) of the Registration Statement.
n. The Company will register the Common Stock under Section 12(g) of
the 1934 Act effective on or prior to the Closing Time.
o. The Company will use its best efforts to obtain approval for,
effective on or prior to the Closing Time, and maintain quotation of the Common
Stock on the Nasdaq National Market System.
p. The ▇▇▇▇▇▇ Parties will maintain appropriate arrangements for
depositing all funds received from persons delivering orders to purchase Shares
in the Subscription and Community Offerings on an interest-bearing basis at the
rate described in the Public Offering Prospectus until the Closing Time or until
the Offering is terminated in accordance with the Plan and as described in the
Public Offering Prospectus. The ▇▇▇▇▇▇ Parties will maintain such records of all
funds received to permit the funds of each subscriber to be separately insured
by the SAIF and to enable the Company to make appropriate refunds of such funds
in the event that such refunds are required to be made in accordance with the
Plan and as described in the Public Offering Prospectus.
q. The ▇▇▇▇▇▇ Parties will take such actions and furnish such
information as are reasonably requested by the Representatives in order for the
Representatives to ensure compliance with
16
Article III, Section 1, of the NASD's Rules of Fair Practice and the NASD's
"Interpretation to Free Riding and Withholding."
r. The ▇▇▇▇▇▇ Parties will conduct their respective businesses in
compliance in all material respects with all applicable federal and state laws,
rules, regulations, decisions, directives and orders including, all decisions,
directives and orders of the OTS.
s. The ▇▇▇▇▇▇ Parties will not amend the Plan without the
Representatives' prior written consent in any manner that, in the opinion of the
Representatives, would affect the sale of the Shares or the terms of this
Agreement, which approval shall not be unreasonably withheld.
t. The ▇▇▇▇▇▇ Parties will use all reasonable efforts to comply
with, or cause to be complied with, the conditions precedent to the several
obligations of the Underwriters specified in Section 9 hereof.
u. Prior to the Closing Time, the ▇▇▇▇▇▇ Parties shall have received
approval of each Reorganization Application required to consummate the Merger,
and all applicable waiting periods shall have expired.
SECTION 6. Payment of Expenses. Whether or not the Conversion is completed
-------------------
or the sale of the Shares by the Company is consummated, the ▇▇▇▇▇▇ Parties
jointly and severally agree to pay all expenses incident to the performance of
the obligations of any ▇▇▇▇▇▇ Party under this Agreement, including the
following: (i) the preparation, printing, issuance and delivery of the
certificates evidencing the Shares and the printing and delivery of all other
documents applicable to the Conversion and the Merger; (ii) the fees and
disbursements of the ▇▇▇▇▇▇ Parties' counsel, accountants and other advisors;
(iii) the qualification of the Shares under all applicable securities or Blue
Sky laws, including filing fees and the reasonable fees and disbursements of
counsel in connection therewith and in connection with the preparation of a Blue
Sky Survey concerning such jurisdictions as the Representatives may reasonably
designate; (iv) the printing and delivery to the Underwriters in such quantities
as the Underwriters shall reasonably request of copies of the Registration
Statement, the preliminary prospectus, the Public Offering Prospectus and the
Reorganization Applications as originally filed and as amended or supplemented
and all other documents in connection with the Conversion and this Agreement;
(v) the filing fees incurred in connection with the review of the Registration
Statement, the Reorganization Applications and any other application, form or
filing by the Commission and the OTS; (vi) the filing fees and the fees and
disbursements of counsel incurred in connection with the review of the Offering
by the NASD; (vii) the fees for listing the Shares on the Nasdaq National Market
System; (viii) the fees and expenses relating to the Independent Valuation; (ix)
the fees and expenses relating to advertising expenses, investor meeting
expenses and other miscellaneous expenses relating to the marketing by the
Underwriters of the Shares; and (x) the fees and charges of any transfer agent,
registrar or other agent. In the event that the Representatives incur any such
expenses on behalf of the ▇▇▇▇▇▇ Parties, the ▇▇▇▇▇▇ Parties will pay or
reimburse the Representatives for such expenses regardless of whether the
Conversion is successfully completed, and such reimbursements will not be
included in the expense limitations set forth in the following paragraph. The
Representatives will not incur any single expense of more than $2,000 pursuant
to this paragraph without the prior approval of the Company or the Bank.
In addition, the ▇▇▇▇▇▇ Parties will reimburse the Underwriters for
all reasonable out-of- pocket expenses, including legal fees and expenses of
Underwriters' counsel, incurred by the Underwriters in connection with the
services provided by the Underwriters to the ▇▇▇▇▇▇ Parties pursuant to this
Agreement. Such legal fees shall not exceed $50,000 (excluding the out-of-pocket
expenses of counsel and any Blue Sky fees and expenses). The Representatives
will provide a detailed accounting of the out-of-pocket expenses referred to in
this paragraph, which will be paid by the Company and/or the Bank on
17
the Closing Time. The parties hereto acknowledge that the expense limitations
set forth in this paragraph may be exceeded in the event of a material delay in
the Offering that requires an update of financial information contained in the
Registration Statement.
SECTION 7. Indemnification and Contribution.
--------------------------------
a. The ▇▇▇▇▇▇ Parties agree to indemnify and hold harmless the
Underwriters, their officers, directors, employees, agents, and counsel, and
each person, if any, who controls the Underwriters within the meaning of Section
15 of the 1933 Act or Section 20(a) of the 1934 Act, against any loss,
liability, claim, damage, and expense whatsoever (which shall include, but not
be limited to amounts incurred in investigating, preparing, or defending against
any litigation, commenced or threatened, or any claim or investigation
whatsoever and any and all amounts paid in settlement of any claim or
litigation), as and when incurred, arising out of, based upon, or in connection
with (i) any untrue statement or alleged untrue statement of a material fact or
any omission or alleged omission to state a material fact required to be stated
therein or necessary to make the statements therein not misleading, contained in
(A) any preliminary prospectus, the Registration Statement, or the Public
Offering Prospectus (as from time to time amended and supplemented), or any
amendment or supplement thereto or in any document incorporated by reference
therein or required to be delivered with any preliminary prospectus or the
Public Offering Prospectus or (B) in any application or other document or
communication (collectively called a "Blue Sky Application") executed by or on
behalf of the ▇▇▇▇▇▇ Parties or based upon written information furnished by or
on behalf of the ▇▇▇▇▇▇ Parties filed in any jurisdiction in order to qualify
the securities being sold under the "blue sky" or securities laws thereof or
filed with the Commission of any securities exchange or (C) in any application
or other document, advertisement or communication prepared, made or executed by
or on behalf of any ▇▇▇▇▇▇ Party or based upon written information or statements
furnished or made by any ▇▇▇▇▇▇ Party or its representatives (including counsel)
whether or not filed in any jurisdiction in order to register or qualify any or
all of the Shares under the securities law thereof (the "Sales Information");
unless such statement or omission was made in reliance upon and in conformity
with written information concerning the Underwriters, this Agreement or the
compensation of the Underwriters furnished to the Company by or on behalf of the
Underwriters expressly for inclusion in any preliminary prospectus, the
Registration Statement, or the Public Offering Prospectus, or any amendment or
supplement thereto, or in any Blue Sky Application or Sales Information, as the
case may be, or (ii) any breach of any representation, warranty, covenant, or
agreement of the ▇▇▇▇▇▇ Parties contained in this Agreement. For purposes of
this section, the term "expense" shall include, but not be limited to, counsel
fees and costs, court costs, out-of-pocket costs and compensation for the time
spent by the Underwriters' directors, officers, employees and counsel according
to his or her normal hourly billing rates. The indemnification provisions shall
also extend to all affiliates of the Underwriters, their respective directors,
officers, employees, legal counsel, agents and controlling persons within the
meaning of the federal securities laws. The foregoing agreement to indemnify
shall be in addition to any liability the ▇▇▇▇▇▇ Parties may otherwise have to
the Underwriters or the persons entitled to the benefit of these indemnification
provisions.
b. Each Underwriter will severally, and not jointly, agree to
indemnify and hold harmless the Company, its directors, officers who signed the
registration statement, and each person, if any, who controls the Company within
the meaning of Section 15 of the 1933 Act or Section 20(a) of the 1934 Act,
against any and all loss, liability, claim, damage and expense described in the
indemnity contained in subsection (a) above, as incurred, but only with respect
to untrue statements or omissions, or alleged untrue statements or omissions,
made in the registration statement (or any amendment thereto) or any preliminary
prospectus or the Public Offering Prospectus (or any amendment or supplement
thereto) in reliance upon and in conformity with written information about the
Representatives, the underwriting agreement, or the compensation of the
Underwriters, furnished to the Company by the Representatives or by any
Underwriter through the Representatives expressly for use in the Registration
Statement (or any
18
amendment thereto) or such preliminary prospectus or the Public Offering
Prospectus (or any amendment or supplement thereto).
c. An indemnified party shall give prompt notice to the indemnifying
party if any action, suit, proceeding or investigation is commenced in respect
of which indemnity may be sought hereunder, but failure to so notify an
indemnifying party shall not relieve the indemnifying party from its obligations
to indemnify hereunder. If it so elects within a reasonable time after receipt
of such notice, an indemnifying party may assume the defense of such action,
including the employment of counsel satisfactory to the indemnified parties) and
payment of all expenses of the indemnified party in connection with such action.
Such indemnified party or parties shall have the right to employ its or their
own counsel in any such case, but the fees and expenses of such counsel shall be
at the expense of such indemnified party or parties unless the employment of
such counsel shall have been authorized in writing by the indemnifying party in
connection with the defense of such action or the indemnifying party shall not
have promptly employed counsel satisfactory to such indemnified party or parties
or such indemnified party or parties shall have reasonably concluded that there
may be one or more legal defenses available to it or them or to other
indemnified parties which are different from or additional to those available to
one or more of the indemnifying parties, in any of which events such fees and
expenses shall be borne by the indemnifying party and the indemnifying party
shall not have the right to direct the defense of such action on behalf of the
indemnified party or parties. The ▇▇▇▇▇▇ Parties shall be liable for any
settlement of any claim against the Underwriters (or their directors, officers,
employees, affiliates or controlling persons), made with the ▇▇▇▇▇▇ Parties'
written consent, which consent shall not be unreasonably withheld. The ▇▇▇▇▇▇
Parties shall not, without the written consent of the Representatives, settle or
compromise any claim against it based upon circumstances giving rise to an
indemnification claim against the ▇▇▇▇▇▇ Parties hereunder unless such
settlement or compromise provides that the Underwriters and the other
indemnified parties shall be unconditionally and irrevocably released from all
liability in respect of such claim.
d. In order to provide for just and equitable contribution, if a
claim for indemnification pursuant to these indemnification provisions is made
but it is found in a final judgment by a court that such indemnification may not
be enforced in such case, even though the express provisions hereof provide for
indemnification in such case, then the ▇▇▇▇▇▇ Parties, on the one hand, and the
Underwriters, on the other hand, shall contribute to the amount paid or payable
by such indemnified persons as a result of such loss, liability, claim, damage
and expense in such proportion as is appropriate to reflect the relative
benefits received by the ▇▇▇▇▇▇ Parties, on the one hand, and the Underwriters,
on the other hand, from the Underwriting, and also the relative fault of the
▇▇▇▇▇▇ Parties, on the one hand, and the Underwriters, on the other hand, in
connection with the statements, acts or omissions which resulted in such loss,
liability claim, damage and expense, and any other relevant equitable
considerations shall also be considered. No person found liable for a fraudulent
misrepresentation or omission shall be entitled to contribution from any person
who is not also found liable for such fraudulent misrepresentation or omission.
Notwithstanding the foregoing, the Underwriters shall not be obligated to
contribute any amount hereunder that exceeds the amount of the underwriting
discount retained by them.
e. The indemnity and contribution agreements contained herein are in
addition to any liability which the ▇▇▇▇▇▇ Parties may otherwise have to the
Underwriters.
f. Neither termination nor completion of the engagement of the
Underwriters nor any investigation made by or on behalf of the Underwriters
shall affect the indemnification, obligations of the ▇▇▇▇▇▇ Parties or the
Underwriters hereunder, which shall remain and continue to be operative and in
full force and effect.
19
SECTION 8. Default of One or More of the Several Underwriters. If, at the
--------------------------------------------------
Closing Time or on the Option Closing Date, as the case may be, any one or more
of the several Underwriters shall fail or refuse to purchase Shares that it or
they have agreed to purchase hereunder on such date, and the aggregate number of
Common Shares which such defaulting Underwriter or Underwriters agreed but
failed or refused to purchase does not exceed 10% of the aggregate number of the
Shares to be purchased on such date, the other Underwriters shall be obligated,
severally, in the proportions that the number of Initial Shares set forth
opposite their respective names on Schedule I bears to the aggregate number of
Initial Shares set forth opposite the names of all such non-defaulting
Underwriters, or in such other proportions as may be specified by the
Representatives with the consent of the non-defaulting Underwriters, to purchase
the Shares which such defaulting Underwriter or Underwriters agreed but failed
or refused to purchase on such date. If, at the Closing Time or on the Option
Closing Date, as the case may be, any one or more of the Underwriters shall fail
or refuse to purchase Shares and the aggregate number of Shares with respect to
which such default occurs exceeds 10% of the aggregate number of Shares to be
purchased on such date, and arrangements satisfactory to the Representatives and
the Company for the purchase of such Shares are not made within 48 hours after
such default, this Agreement shall terminate without liability of any party to
any other party except that the provisions of Sections 6 and 7 shall at all
times be effective and shall survive such termination. In any such case either
the Representatives or the Company shall have the right to postpone the Closing
Time or the Option Closing Date, as the case may be, but in no event for longer
than seven days in order that the required changes, if any, to the Registration
Statement and the Public Offering Prospectus or any other documents or
arrangements may be effected.
As used in this Agreement, the term "Underwriter" shall be deemed to
include any person substituted for a defaulting Underwriter under this Section
8. Any action taken under this Section 8 shall not relieve any defaulting
Underwriter from liability in respect of any default of such Underwriter under
this Agreement.
SECTION 9. Conditions of the Underwriters' Obligations. The obligations of
-------------------------------------------
the Underwriters hereunder as to the Shares to be delivered at the Closing Time
and the Option Closing Time, as the case may be, are subject, in the discretion
of the Representatives, to the condition that all representations and warranties
and other statements of the ▇▇▇▇▇▇ Parties herein are, at and as of the
commencement of the Public Offering and at and as of the Closing Time and the
Option Closing Time, as the case may be, true and correct in all material
respects, the condition that the ▇▇▇▇▇▇ Parties shall have performed in all
material respects all of their respective obligations hereunder to be performed
on or before such dates and to the following conditions:
a. The Post-Effective Amendment shall have been declared effective
by the Commission [and the OTS] not later than 5:30 p.m. on the date of this
Agreement, or with the consent of the Representatives at a later time and date;
and at the Closing Time and the Option Closing Time, as the case may be, no stop
order suspending the effectiveness of the Post-Effective Amendment or the
consummation of the Conversion shall have been issued under the 1933 Act or
proceedings therefor initiated or threatened by the Commission or any state
securities or Blue Sky authority, and no order or other action suspending the
effectiveness of the Public Offering Prospectus or the consummation of the
Conversion shall have been issued or proceedings therefore initiated or
threatened by the OTS.
b. At the Closing Time, the Representatives shall have received:
(i) The favorable opinion, dated as of the Closing Time
addressed to the Representatives and for the Underwriters and their
counsel's benefit, of ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, Washington,
D.C., ("▇▇▇▇ ▇▇▇▇▇▇"), as to issues of federal and
20
Pennsylvania law set forth below. The opinion of ▇▇▇▇ ▇▇▇▇▇▇ shall be in
form and substance to the effect that:
(1) Prior to the Charter Conversions, ▇▇▇▇▇▇ Financial was
duly incorporated and validly existing as a corporation under the laws
of Pennsylvania, the Bank was duly organized and validly existing
under the laws of Pennsylvania as a savings bank in the capital stock
form of organization, and the MHC was duly organized and validly
existing under the laws of Pennsylvania as a mutual holding company;
and each had the corporate power and authority to own, lease and
operate its properties and to conduct its business as described in the
Registration Statement and Public Offering Prospectus.
(2) Following the Charter Conversions and prior to the
consummation of the Reorganization, ▇▇▇▇▇▇ Financial was duly
incorporated and validly existing as federally chartered holding
company in stock form, and the MHC was duly incorporated and validly
existing as a federally chartered mutual holding company, and each had
the corporate power and authority to own, lease and operate its
properties and to conduct its business as described in the
Registration Statement and Public Offering Prospectus.
(3) Following the Charter Conversions, the Bank was duly
organized and validly existing as a federal savings bank in the
capital stock form of organization and upon the Reorganization will
continue as such, with the corporate power and authority to own, lease
and operate its properties and to conduct its business as described in
the Registration Statement and Public Offering Prospectus.
(4) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of
Pennsylvania, and has the corporate power and authority to own, lease
and operate the properties and to conduct the business of ▇▇▇▇▇▇
Financial as described in the Registration Statement and Public
Offering Prospectus. Each of the ▇▇▇▇▇▇ subsidiaries has been duly
organized and is validly existing and in good standing under the laws
of its jurisdiction of organization, and each has the corporate power
and authority to own, lease and operate its properties and to conduct
its business as described in the Registration Statement and Public
Offering Prospectus.
(5) Each of the ▇▇▇▇▇▇ Parties and their subsidiaries is
duly qualified as a foreign corporation to transact business and is in
good standing in each jurisdiction in which such qualification is and,
following consummation of the Reorganization, will be required, unless
the failure to be so qualified in one or more of such jurisdictions
would not have a material adverse effect on the financial condition or
the business, operations, net income or prospects of the ▇▇▇▇▇▇
Parties taken as a whole.
(6) All of the outstanding capital stock of the Bank is
duly authorized and validly issued, fully paid and non-assessable and,
upon consummation of the Reorganization, will be owned by the Company,
free and clear of any liens, encumbrances, claims or other
restrictions.
(7) The activities of each subsidiary of ▇▇▇▇▇▇ Financial,
the MHC and the Bank as described in the Registration Statement and
Public Offering Prospectus are permitted (i) to subsidiaries of a
Pennsylvania chartered savings bank and a bank holding company by the
rules, regulations, policies and practices of the Pennsylvania
Department of Banking, the FDIC, the Fed and any other federal or
state authority having jurisdiction
21
over such matters, and (ii) to subsidiaries of a federally-chartered
savings bank and savings and loan holding company by the rules,
regulations, policies and practices of the OTS and any other federal
or state authority having jurisdiction over such matters. All of the
outstanding stock of each subsidiary of ▇▇▇▇▇▇ Financial, the MHC and
the Bank has been duly authorized and validly issued and is fully paid
and nonassessable; and upon consummation of the Reorganization all
such stock will be owned of record and beneficially by the Bank, free
and clear of any security interest, mortgage, pledge, lien,
encumbrance, claim or equity.
(8) Upon consummation of the Reorganization, the authorized
equity capital of the Company will consist of 100,000,000 shares of
common stock and 10,000,000 shares of preferred stock, and the issued
and outstanding equity capital of the Company will be consistent with
that set forth in the Registration Statement and the Public Offering
Prospectus under the caption "Historical and Pro Forma
Capitalization"; no shares of the Company's common stock, or
securities exercisable into or exchangeable for common stock, will
have been issued prior to the Closing Time (other than ____ shares
held by the Bank, which shares will be cancelled upon consummation of
the Conversion); at the time of the Conversion the Shares will have
been duly and validly authorized for issuance, and when issued and
delivered by the Company pursuant to the Plan, will be duly authorized
and validly issued and fully paid and nonassessable; the issuance of
the Shares is not subject to any preemptive rights. Upon the issuance
of the Shares, against payment therefor in accordance with the Public
Offering Prospectus, the purchasers will have full legal title to the
shares, subject to such claims as may be asserted against the
purchasers thereof by third-party claimants.
(9) Each Reorganization Application has been approved by
the applicable regulatory authority pursuant to the Reorganization
Regulations and the Public Offering Prospectus has been authorized for
use by the OTS, and, to such counsel's knowledge, no action has been
taken or is pending or threatened to revoke any such authorization or
approval.
(10) Each Reorganization Application, as amended or
supplemented, if amended or supplemented, as filed with the applicable
regulatory authority complied as to form in all material respects with
the requirements of the Reorganization Regulations.
(11) The OTS's approval of the Plan remains in full force
and effect; the ▇▇▇▇▇▇ Parties have conducted the Reorganization in
all material respects in accordance with the requirements of the
Reorganization Regulations, federal law, all other applicable
regulations, decisions and orders and the Plan, including all material
applicable terms, conditions, requirements and conditions precedent to
the Reorganization imposed by the OTS; no order has been issued by the
OTS to suspend the Charter Conversion, the Conversion or the Merger
and no action for such purpose has been instituted or, to such
counsel's knowledge, threatened by the OTS; and, to such counsel's
knowledge, no person has sought to obtain review of the final action
of the OTS in approving any Reorganization Application or the Plan.
(12) This Agreement has been duly authorized, executed and
delivered by the MHC, ▇▇▇▇▇▇ Financial, the Company and the Bank and
is the legal, valid and binding agreement of the MHC, ▇▇▇▇▇▇
Financial, the Company and the Bank, subject, as to enforceability, to
bankruptcy, insolvency, reorganization, moratorium, conservatorship,
receivership and other laws of general applicability relating to or
affecting creditors'
22
rights or the rights of creditors of depository institutions the
deposits of which are insured by the BIF, to general principles of
equity (whether considered in an action at law or in equity) and to
the extent that rights to indemnity and contribution thereunder may be
limited under applicable laws or under considerations of public
policy.
(13) The Registration Statement is effective under the 1933
Act and no stop order suspending effectiveness has been issued under
the 1933 Act and, to such counsel's knowledge, no proceedings therefor
have been initiated or threatened by the Commission or any state
securities or Blue Sky authority.
(14) All conditions imposed by the OTS in connection with
its approvals of the Reorganization Applications have been satisfied,
and no further approval, authorization, consent or other order of any
federal or state board or body is required in connection with the
execution and delivery of this Agreement, the issuance of the Shares
and the consummation of the Reorganization, except as may be required
under the securities or Blue Sky laws of various jurisdictions.
(15) At the time the Registration Statement became
effective, (i) the Registration Statement (as amended or supplemented,
if so amended or supplemented) (other than the financial statements,
stock valuation information and other financial and statistical data
included therein, as to which no opinion need be rendered), complied
as to form in all material respects with the requirements of the 1933
Act and the 1933 Act Regulations and (ii) the Public Offering
Prospectus (other than the financial statements, stock valuation
information and other financial and statistical data included therein,
as to which no opinion need be rendered) complied as to form in all
material respects with the requirements of the Conversion Regulations.
(16) The information in the Registration Statement and
Public Offering Prospectus under the captions "Regulation,"
"Restrictions on Acquisition of New ▇▇▇▇▇▇ Financial" and "Description
of Capital Stock of New ▇▇▇▇▇▇ Financial," to the extent that it
constitutes matters of law, summaries of legal matters, documents or
proceedings or legal conclusions, has been reviewed by such counsel
and is correct in all material respects.
(17) The terms and provisions of the Common Stock conform in
all material respects to the description thereof contained in the
Public Offering Prospectus, and the form of certificate used to
evidence the Shares is in due and proper form.
(18) To such counsel's knowledge, there are no legal or
governmental proceedings pending or threatened against any ▇▇▇▇▇▇
Party or any subsidiary which are required to be disclosed in the
Registration Statement and Public Offering Prospectus other than those
disclosed therein, and all pending legal and governmental proceedings
to which any ▇▇▇▇▇▇ Party or any subsidiary is the subject which are
not disclosed in the Registration Statement, including ordinary
routine litigation, are, considered in the aggregate, not material.
(19) To such counsel's knowledge, there are no material
contracts, indentures, mortgages, loan agreements, notes, leases or
other instruments required to be described or referred to in the
Registration Statement and Public Offering Prospectus or to be filed
as exhibits thereto other than those described or referred to therein
or filed as
23
exhibits thereto, and the description thereof or references thereto
are correct in all material respects.
(20) To such counsel's knowledge, ▇▇▇▇▇▇ Financial, the Bank
and the subsidiaries have obtained all material licenses, permits and
other governmental authorizations currently required for the conduct
of their respective businesses, taken as a whole, as described in the
Registration Statement and Public Offering Prospectus; the Company has
obtained all material licenses, permits and other governmental
authorizations required for the conduct of the business of ▇▇▇▇▇▇
Financial, taken as a whole, as described in the Registration
Statement and Public Offering Prospectus, following consummation of
the Reorganization; all such licenses, permits and other governmental
authorizations are in full force and effect; and ▇▇▇▇▇▇ Financial, the
Company, the Bank and the subsidiaries are in all material respects
complying therewith.
(21) The Plan has been duly adopted by the required votes of
the Board of Trustees of the MHC, the Boards of Directors of ▇▇▇▇▇▇
Financial, the Bank and the Company, the stockholders of ▇▇▇▇▇▇
Financial, the stockholders of the Bank and the members of the MHC.
(22) The Company's articles of incorporation and bylaws
comply in all material respects with the [General Corporation Law
("GCL")] of the Commonwealth of Pennsylvania. The Company is not in
violation of its articles of incorporation or by-laws; the execution
and delivery of this Agreement, the incurrence of the obligations
herein set forth and the consummation of the transactions contemplated
herein will not result in any violation of the provisions of the
articles of incorporation or By-Laws of the Company.
(23) The Bank's, the MHC's and ▇▇▇▇▇▇ Financial's charter
and by-laws comply in all material respects with the HOLA and the
rules and regulations of the OTS. Neither the Bank, the MHC or ▇▇▇▇▇▇
Financial is in violation of its charter or by-laws; the execution and
delivery of this Agreement, the incurrence of the obligations herein
set forth and the consummation of the transactions contemplated herein
will not result in any violation of the provisions of the charter or
by-laws of the Bank, the MHC or ▇▇▇▇▇▇ Financial.
(24) To such counsel's knowledge, none of the ▇▇▇▇▇▇
subsidiaries is in violation of its charter or by-laws; to such
counsel's knowledge, the execution and delivery of this Agreement, the
incurrence of the obligations herein set forth and the consummation of
the transactions contemplated herein will not result in any violation
of the provisions of the charter or by-laws of such subsidiary.
(25) To such counsel's knowledge, none of the ▇▇▇▇▇▇ Parties
is in violation of any directive from the OTS to make any material
change in the method of conducting its business, and the ▇▇▇▇▇▇
Parties have conducted and are conducting their respective businesses
so as to comply in all material respect with all applicable statutes
and regulations (including, without limitation, regulations,
decisions, directives and orders of the Pennsylvania Department of
Banking, the FDIC, the FRB and the OTS).
(26) Neither ▇▇▇▇▇▇ Financial, the Company nor the Bank is
required to be registered as an investment company under the
Investment Company Act of 1940.
24
(27) The ▇▇▇▇▇▇ Parties have the power and authority to
consummate the transactions contemplated by the Merger Agreement.
(28) The Merger Agreement has been duly authorized, executed
and delivered by each of the ▇▇▇▇▇▇ Parties and constitutes the valid
and binding obligation of each of them, enforceable in accordance with
its terms subject to applicable bankruptcy, insolvency and similar
laws affecting creditors' rights and remedies generally and subject,
as to enforceability, to general principles of equity, whether applied
in a court of law or a court of equity.
(29) To such counsel's knowledge, all corporate acts and
other proceedings required to be taken by or on the part of the ▇▇▇▇▇▇
Parties to consummate the Merger have been properly taken and, as of
the closing of the merger of York Federal into the Bank (the "Bank
Merger"), all corporate acts and other proceedings required to be
taken by or on the part of the ▇▇▇▇▇▇ Parties to consummate the Bank
Merger will have been properly taken; neither the execution and
delivery of the Merger Agreement, nor the consummation of the
transactions contemplated thereby, with and without the giving of
notice or the lapse of time, or both, will violate any provision of
the Articles, Charter or Bylaws of any ▇▇▇▇▇▇ Party.
(30) Except as disclosed in such opinion, to such counsel's
knowledge, there are no actions, suits, proceedings or investigations
(public or private) of any nature pending or threatened that challenge
the validity or propriety of the transactions contemplated by the
Merger Agreement or which seek or threaten to restrain, enjoin or
prohibit or to obtain substantial damages in connection with the
consummation of such transactions.
(31) All regulatory and governmental approvals and consents
which are necessary to be obtained by the ▇▇▇▇▇▇ Parties and their
subsidiaries to permit the execution, delivery and performance of the
Merger Agreement have been obtained.
(32) All conditions precedent to consummation of the Merger
have been satisfied or waived, including but not limited to those
referenced in the Merger Agreement, and all statutory waiting periods
with respect to all regulatory and governmental approvals of the
Merger have expired.
(ii) The favorable opinion of Breyer & Associates, P.C., counsel
to York Financial and York Federal, dated as of the Closing Time and
addressed to the Representatives and for the Underwriters and their
counsel's benefit, concerning the following matters:
(1) York Financial is a corporation duly organized, validly
existing and in good standing under the laws of the Commonwealth of
Pennsylvania, and York Federal is a federally chartered savings bank
duly organized in stock form, validly existing and in good standing
under the laws of the United States.
(2) York Financial and York Federal have the corporate
power and authority to carry on their respective businesses as such
businesses are described in the Public Offering Prospectus and to
consummate the Merger and the Bank Merger, respectively.
25
(3) The Merger Agreement has been duly authorized and
approved by the Boards of Directors of York Financial and York
Federal, the Merger Agreement and the Merger have been approved by the
requisite vote of York Financial's shareholders, the Merger Agreement
has been duly executed and delivered by York Financial and York
Federal and the Merger Agreement constitutes the valid and binding
obligation of York Financial and York Federal, enforceable in
accordance with its terms subject to applicable bankruptcy, insolvency
and similar laws affecting creditors' rights and remedies generally
and subject, as to enforceability, to general principles of equity,
whether applied in a court of law or a court of equity. To such
counsel's actual knowledge, no other corporate acts or proceedings are
required to be taken by York Financial or York Federal in order to
consummate the Merger.
(4) To such counsel's actual knowledge, all federal and
state banking agency approvals, consents, authorizations or
notifications required to be received or made by York Financial or
York Federal prior to consummation of the Merger or Bank Merger have
been properly obtained or made; neither the execution and delivery of
the Merger Agreement nor the consummation of the Merger or Bank
Merger, with or without the giving of notice or the lapse of time, or
both, will (i) violate any provision of the Articles of Incorporation,
Charter or Bylaws of York Financial or York Federal; or (ii) to the
actual knowledge of such counsel, violate any federal or state banking
statute, rule or regulation applicable to York Financial and York
Federal, which would have a material adverse effect on the financial
condition, assets, liabilities, or business of York Financial and York
Federal; to the actual knowledge of such counsel, no consent,
approval, authorization, order, registration or qualification of or
with any court, federal or state banking regulatory authority or other
federal or state banking governmental body other than as specifically
contemplated by the Merger Agreement is required for the consummation
by York Financial and York Federal of the Merger or the Bank Merger,
respectively.
(5) To such counsel's actual knowledge, there are no
actions, suits, proceedings, or investigations of any nature pending
or threatened that challenge the validity or legality of the Merger or
the Bank Merger or which seek or threaten to restrain, enjoin or
prohibit (or obtain substantial damages in connection with) the
consummation of the Merger or the Bank Merger.
(6) To such counsel's actual knowledge, there is no
litigation, appraisal or other judicial or administrative proceeding
or governmental investigation pending or threatened against or
relating to the business or property of York Financial or York Federal
which would have a materially adverse effect on the consolidated
financial condition of York Financial, or any legal impediment to the
continued operation of the properties and business of York Financial
and York Federal in the ordinary course after the consummation of the
Merger or the Bank Merger.
Counsel may expressly exclude any opinions as to choice of law and anti-
trust matters and may add other qualifications and explanations of the basis of
its opinions as are consistent with the Legal Opinion Accord prepared by the
Section of Business Law of the American Bar Association.
(iii) The letter of ▇▇▇▇ ▇▇▇▇▇▇, addressed to the
Representatives, dated as of the Closing Time, in form and substance to the
effect that:
26
(1) During the preparation of the Conversion Applications,
the Registration Statement and the Public Offering Prospectus, such
counsel participated in conferences with management of and the
independent certified public accountants for the ▇▇▇▇▇▇ Parties. Based
upon such conferences and such review of corporate records of the
▇▇▇▇▇▇ Parties as such counsel conducted in connection with the
preparation of the Registration Statement and Conversion Applications,
nothing has come to their attention that would lead them to believe
that any Conversion Application, the Registration Statement, the
Public Offering Prospectus or any amendment or supplement thereto
(other than financial statements, stock valuation information and
other financial and statistical data included therein, as to which
such counsel need express no view), contained an untrue statement of a
material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein, in light
of the circumstances under which they were made, not misleading.
(iv) The favorable opinion, dated as of the Closing Time, of
▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇ LLP, counsel for the Underwriters, with respect to such
matters as the Representatives may reasonably require. Such opinion may
rely upon certificates of officers and directors of the ▇▇▇▇▇▇ Parties
delivered pursuant hereto or as such counsel shall reasonably request.
(v) A certificate of the Chief Executive Officer and the
Chief Financial Officer of each of the ▇▇▇▇▇▇ Parties, dated the Closing
Time, to the effect that: (i) since the respective dates as of which
information is given in the Registration Statement and the Public Offering
Prospectus, there has been no material adverse change in the financial
condition or in the net income, capital, properties, affairs or prospects
of the ▇▇▇▇▇▇ Parties and York Financial and York Federal, taken as a
whole, whether or not arising in the ordinary course of business; (ii) the
representations and warranties in Section 4 of this Agreement are true and
correct with the same force and effect as though expressly made at and as
of the Closing Time or the Option Closing Time, as the case may be; (iii)
the ▇▇▇▇▇▇ Parties have complied with all agreements and satisfied all
conditions on their part to be performed or satisfied at or prior to the
Closing Time or the Option Closing Time, as the case may be, and will
comply with all obligations to be satisfied by them after the Conversion;
(iv) no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose have been
initiated or threatened by the Commission or any state securities or Blue
Sky authority; and (v) no order suspending the Offering, the Conversion or
the effectiveness of the Public Offering Prospectus has been issued and no
proceedings for that purpose have been issued and no proceedings for that
purpose have been initiated or threatened by the OTS.
c. Prior to and at the Closing Time and the Option Closing Time, as
the case may be: (i) there shall have been no material adverse change in the
financial condition or in the net income, affairs or prospects of the ▇▇▇▇▇▇
Parties and York Financial and York Federal, taken as a whole, since the
respective dates as of which information is given in the Public Offering
Prospectus, except as referred to therein; (ii) there shall have been no
material transaction entered into by any ▇▇▇▇▇▇ Party, York Financial, York
Federal or any subsidiary thereof since the latest dates as of which the
financial condition of the Company and the Bank is set forth in the Public
Offering Prospectus, other than transactions referred to or contemplated
therein; (iii) no ▇▇▇▇▇▇ Party shall have received from the OTS or any other
government agency any direction (oral or written) to make any material change in
the method of conducting its business with which it has not complied (which
direction, if any, shall have been disclosed to the Representatives) or which
would materially and adversely affect its business, operations, financial
condition or net income; (iv) no ▇▇▇▇▇▇ Party, York Financial, York Federal or
any subsidiary thereof shall have been in default (nor shall an event have
occurred which, with notice or lapse of time or both, would constitute a
default) under any provision of any agreement or instrument relating to any
outstanding
27
indebtedness; (v) no action, suit or proceeding, at law or in equity or before
or by any federal or state commission, board or other administrative agency,
shall be pending or, to the knowledge of any ▇▇▇▇▇▇ Party, threatened against
any ▇▇▇▇▇▇ Party, York Financial, York Federal or any subsidiary thereof or
affecting any of their respective properties wherein an unfavorable decision,
ruling or finding would materially and adversely affect the business,
operations, financial condition or net income of the ▇▇▇▇▇▇ Parties, York
Financial and York Federal, taken as a whole; and (vi) the Shares shall have
been qualified or registered for offering and sale under the securities or Blue
Sky laws of the jurisdictions set forth in the Blue Sky Survey prepared by
▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇ LLP.
d. (1) Concurrently with the execution of this Agreement, the
Representatives and the ▇▇▇▇▇▇ Parties shall receive a letter from ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ dated the date hereof and addressed to the Representatives: (i)
confirming that ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ is a firm of independent certified public
accountants with respect to ▇▇▇▇▇▇ Financial, Inc. and the Bank within the
meaning of the 1933 Act and the 1933 Act Regulations and the Code of Ethics of
the American Institute of Certified Public Accountants and no information
concerning its relationship with or interests in any ▇▇▇▇▇▇ Party is required to
be disclosed in the Public Offering Prospectus, and stating in effect that in
its opinion the consolidated financial statements of ▇▇▇▇▇▇ Financial, Inc.
included in the Public Offering Prospectus and covered by its opinion included
therein comply as to form in all material respects with the applicable
accounting requirements of the 1933 Act, the 1934 Act, the 1933 Act Regulations,
the 1934 Act Regulations and generally accepted accounting principles; (ii)
stating in effect that, on the basis of certain agreed upon procedures (but not
an examination in accordance with generally accepted auditing standards)
consisting of a review, in accordance with Statement on Auditing Standards No.
71, of the latest available unaudited interim consolidated financial statements
of ▇▇▇▇▇▇ Financial, Inc. prepared by ▇▇▇▇▇▇ Financial, Inc., a reading of the
minutes of the meetings of the Board of Directors and stockholders of ▇▇▇▇▇▇
Financial, Inc. and Board of Directors of the Bank and consultations with
officers of ▇▇▇▇▇▇ Financial, Inc. and the Bank responsible for financial and
accounting matters, nothing has come to its attention which causes it to believe
that: (A) the unaudited consolidated financial statements of ▇▇▇▇▇▇ Financial,
Inc. included in the Public Offering Prospectus do not comply as to form in all
material respects with applicable accounting requirements; (B) such unaudited
consolidated financial statements are not in conformity with generally accepted
accounting principles applied on a basis substantially consistent with that of
the audited consolidated financial statements included in the Public Offering
Prospectus; (C) during the period from the date of the latest audited
consolidated financial statements included in the Public Offering Prospectus to
a specified date not more than five business days prior to the date hereof,
there was any material increase in borrowings by ▇▇▇▇▇▇ Financial, Inc. or the
Bank; or (D) there was any material decrease in retained earnings of ▇▇▇▇▇▇
Financial, Inc. at the date of such letter as compared with amounts shown in the
latest audited consolidated balance sheet included in the Public Offering
Prospectus or any material decrease in net income or net interest income of
▇▇▇▇▇▇ Financial, Inc. for the number of full months commencing immediately
after the period covered by the latest audited consolidated income statement
included in the Public Offering Prospectus and ended on the latest month end
prior to the date of the Public Offering Prospectus as compared to the
corresponding period in the preceding year; and (iii) stating that, in addition
to the examination referred to in its opinion included in the Public Offering
Prospectus and the performance of the procedures referred to in clause (ii) of
this paragraph (e), it has compared with the general accounting records of
▇▇▇▇▇▇ Financial, Inc.'s and/or the Bank's, as applicable, accounting system and
other data prepared by ▇▇▇▇▇▇ Financial, Inc. and/or the Bank, as applicable,
directly from such accounting records, to the extent specified in such letter,
such amounts and/or percentages set forth in the Public Offering Prospectus as
the Representatives may reasonably request; and they have found such amounts and
percentages to be in agreement therewith (subject to rounding).
(2) Concurrently with the execution of this Agreement, the
Representatives, and the ▇▇▇▇▇▇ Parties shall receive a letter from Ernst &
Young dated the date hereof and addressed to the
28
Representatives: (i) confirming that Ernst & Young is a firm of independent
certified public accountants with respect to York Financial and York Federal
within the meaning of the 1933 Act and the 1933 Act Regulations and the Code of
Ethics of the American Institute of Certified Public Accountants and no
information concerning its relationship with or interests in York Federal or
York Financial is required to be disclosed in the Public Offering Prospectus,
and stating in effect that in its opinion the consolidated financial statements
of York Financial included in the Public Offering Prospectus and covered by its
opinion included therein comply as to form in all material respects with the
applicable accounting requirements of the 1933 Act, the 1934 Act, the 1933 Act
Regulations, the 1934 Act Regulations and generally accepted accounting
principles; (ii) stating in effect that, on the basis of certain agreed upon
procedures (but not an examination in accordance with generally accepted
auditing standards) consisting of a review, in accordance with Statement on
Auditing Standards No. 71, of the latest available unaudited interim
consolidated financial statements of York Financial prepared by York Financial,
a reading of the minutes of the meetings of the Board of Directors and
stockholders of York Financial and consultations with officers of York Financial
responsible for financial and accounting matters, nothing has come to its
attention which causes it to believe that: (A) the unaudited consolidated
financial statements of York Financial included in the Public Offering
Prospectus do not comply as to form in all material respects with applicable
accounting requirements; (B) such unaudited consolidated financial statements
are not in conformity with generally accepted accounting principles applied on a
basis substantially consistent with that of the audited consolidated financial
statements included in the Public Offering Prospectus; (C) during the period
from the date of the latest audited consolidated financial statements included
in the Public Offering Prospectus to a specified date not more than five
business days prior to the date hereof, there was any material increase in
borrowings by York Financial or York Federal; or (D) there was any material
decrease in retained earnings of York Financial at the date of such letter as
compared with amounts shown in the latest audited consolidated balance sheet
included in the Public Offering Prospectus or any material decrease in net
income or net interest income of York Financial for the number of full months
commencing immediately after the period covered by the latest audited
consolidated income statement included in the Public Offering Prospectus and
ended on the latest month end prior to the date of the Public Offering
Prospectus as compared to the corresponding period in the preceding year; and
(iii) stating that, in addition to the examination referred to in its opinion
included in the Public Offering Prospectus and the performance of the procedures
referred to in clause (ii) of this paragraph (e), it has compared with the
general accounting records of York Financial and/or York Federal, as applicable,
accounting system and other data prepared by York Financial and/or York Federal,
as applicable, directly from such accounting records, to the extent specified in
such letter, such amounts and/or percentages set forth in the Public Offering
Prospectus as the Representatives may reasonably request; and they have found
such amounts and percentages to be in agreement therewith (subject to rounding).
e. At the Closing Time, the Representatives shall receive a letter
from ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇ & ▇▇▇▇▇, dated the Closing Time, addressed to the
Representatives, confirming the statements made by them in the letter delivered
by it pursuant to paragraph (e) of this Section 9, the "specified date" referred
to in clause (ii) (C) thereof to be a date specified in such letter, which shall
not be more than five business days prior to the Closing Time.
f. At the Closing Time, the Representatives shall have received a
letter from RP Financial, dated as of the Closing Time, confirming the
Independent Valuation.
g. At the Closing Time and the Option Closing Date, as the case may
be, counsel to 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 sale of the Shares as herein contemplated and related proceedings
or in order to evidence the accuracy or completeness of any of the
representations and warranties, or the fulfillment of any of the conditions,
herein contained; and all proceedings taken by the
29
▇▇▇▇▇▇ Parties in connection with the Reorganization and the sale of the Shares
as herein contemplated shall be satisfactory in form and substance to the
Representatives and counsel to the Underwriters.
h. The ▇▇▇▇▇▇ Parties shall not have sustained since the date of the
latest audited consolidated financial statements included in the Registration
Statement and Public Offering Prospectus any loss or interference with its
business from fire, explosion, flood or other calamity, whether or not covered
by insurance, or from any labor dispute or court or governmental action, order
or decree, other than as set forth or contemplated in the Registration
Statement, which is in the judgment of the Representatives sufficiently material
and adverse as to make it impracticable or inadvisable to proceed with the
Offering or the delivery of the Shares on the terms and in the manner
contemplated in the Public Offering Prospectus.
i. Subsequent to the date hereof, there shall not have occurred any
of the following: (i) a suspension or limitation in trading in securities
generally on the New York Stock Exchange or American Stock Exchange or in the
over-the-counter market, or quotations halted generally on the Nasdaq Stock
Market, or minimum or maximum prices for trading fixed, or maximum ranges for
prices for securities required by either of such exchanges or the NASD or by
order of the Commission or any other governmental authority; (ii) a general
moratorium on the operation of commercial banks, federal or state savings and
loan associations or savings banks in Pennsylvania or a general moratorium on
the withdrawal of deposits from commercial banks, federal or state savings and
loan associations or savings banks in Pennsylvania declared by either federal or
Pennsylvania authorities; (iii) the engagement by the United States in
hostilities which have resulted in the declaration, on or after the date hereof,
a national emergency or war; or (iv) a material decline in the price of equity
or debt securities, if the effect of such a decline, in the judgment or the
Representatives, makes it impracticable or inadvisable to proceed with the
Offering or the delivery of the Shares on the terms and in the manner
contemplated in the Public Offering Prospectus.
j. In the event the Underwriters exercise their option provided in
Section 2 hereof to purchase all or any portion of the Option Shares, the
obligations of the Underwriters to purchase the Option Shares that they have
agreed to purchase shall be subject to the receipt by the Representatives on the
Option Closing Date of:
(i) A certificate, dated the Option Closing Date, of the
Chief Executive Officer and Chief Financial Officer of each of the ▇▇▇▇▇▇
Parties confirming that the certificate delivered at the Closing Time
pursuant to Section 9(b)(v) hereof remains true as of the Option Closing
Date;
(ii) The favorable opinion of ▇▇▇▇ ▇▇▇▇▇▇, counsel for the
▇▇▇▇▇▇ Parties, addressed to the Representatives and dated the Option
Closing Date, in form satisfactory to counsel to the Underwriters, relating
to the Option Shares and otherwise to the same effect as the opinion
required by Section 9(b)(i) hereof;
(iii) The favorable opinion of Breyer & Associates, P.C.,
counsel to York Financial and York Federal, addressed to the
Representatives and dated the Option Closing Date, in form satisfactory to
counsel to the Underwriters, to the same effect as the opinion required by
Section 9(b)(ii) hereof;
(iv) A letter of ▇▇▇▇ ▇▇▇▇▇▇, counsel for the ▇▇▇▇▇▇
Parties, addressed to the Representatives and dated the Option Closing
Date, in form satisfactory to counsel to the Underwriters, to the same
effect as the letter required by Section 9(b)(iii) hereof;
30
(v) The favorable opinion of ▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇ LLP,
counsel to the Underwriters, dated the Option Closing Date, relating
to the Option Shares and otherwise to the same effect as the opinion
required by Section 9(b)(iv) hereof; and
(vi) Letters from ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇ & ▇▇▇▇▇,
addressed to the Representatives and dated the Option Closing Date, in
form and substance satisfactory to the Representatives and
substantially the same in form and substance as the letters furnished
to the Representatives pursuant to Section 9(e) hereof; and
(vii) A letter from RP Financial, addressed to the
Representatives and dated the Option Closing Date, confirming the
Independent Valuation.
SECTION 10. Termination. If any of the conditions specified in Section
-----------
9 shall not have been fulfilled when and as required by this Agreement, or by
March 31, 2001, this Agreement may be terminated by the Representatives and all
of the Underwriters' obligations hereunder may be canceled by the
Representatives by notifying the ▇▇▇▇▇▇ Parties of such cancellation in writing
or by fax at any time at or prior to the Closing Time, and any such termination
and cancellation shall be without liability of any party to any other party
except as otherwise provided in Sections 6 and 7 hereof. Notwithstanding the
above, if this Agreement is terminated pursuant to this paragraph, the ▇▇▇▇▇▇
Parties jointly and severally agree to reimburse the Underwriters for all of the
Underwriters' out-of-pocket expenses reasonably incurred by the Underwriters,
including any legal fees (and out-of-pocket expenses) to be paid to the
Underwriters' counsel, subject to the limits expressed in Section 6 hereof.
SECTION 11. Survival. The respective indemnities, agreements,
--------
representations, warranties and other statements of the ▇▇▇▇▇▇ Parties and the
Underwriters, as set forth in this Agreement, shall remain in full force and
effect, regardless of any investigation (or any statement as to the results
thereof) made by or on behalf of the Underwriters or any of the Underwriters'
officers or directors or any person controlling the Underwriters, or the ▇▇▇▇▇▇
Parties, or any of their respective officers or directors or any person
controlling the ▇▇▇▇▇▇ Parties, and shall survive termination of this Agreement
and receipt or delivery of any payment for the Shares.
SECTION 12. Waiver of Trial by Jury. Each of the Underwriters and the
-----------------------
Company waives all right to trial by jury in any action, proceeding, claim or
counterclaim (whether based on contract, tort, or otherwise) related to or
arising out of this Agreement.
SECTION 13. Miscellaneous. Notices hereunder, except as otherwise
-------------
provided herein, shall be given in writing or by telegraph, addressed (a) to
▇▇▇▇, ▇▇▇▇ at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
(Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, First Vice President), and to ▇▇▇▇ ▇▇▇▇▇ at ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ (Attention: ▇▇▇▇ ▇▇▇▇▇▇▇), in
each case with a copy to ▇▇▇▇▇, ▇▇▇▇ and ▇▇▇▇▇, LLP, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Esq.) and (b) to
the ▇▇▇▇▇▇ Parties at the Bank's principal office (Attention: ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇, ▇▇., President and Chief Executive Officer), with a copy to ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C., ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇, (Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Esq.).
This Agreement is made solely for the benefit of and will be binding
upon the parties hereto and their respective successors and the directors,
officers and controlling persons referred to in Section 7 hereof, and no other
person will have any right or obligation hereunder. The term "successors" shall
not include any purchaser of any of the Shares.
31
This Agreement shall be governed by and construed in accordance with
the laws of the State of New Jersey.
Time shall be of the essence of this Agreement.
This Agreement may be signed in various counterparts which together
will constitute one agreement.
If the foregoing correctly sets forth the arrangement among the
Company, the Bank and the Underwriters, please indicate acceptance thereof in
the space provided below for that purpose, whereupon this letter shall
constitute a binding agreement.
▇▇▇▇▇▇ FINANCIAL, INC. ▇▇▇▇▇▇ SAVINGS BANK
By:____________________________________ By:__________________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇., President ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇., President
NEW ▇▇▇▇▇▇ FINANCIAL, INC. ▇▇▇▇▇▇ FINANCIAL M.H.C.
By:____________________________________ By:__________________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇., President ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇., President
▇▇▇▇, ▇▇▇▇ & CO. ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, INC.
By:_____________________________________ By:__________________________________
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, First Vice President ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Managing Director
32
EXHIBIT A
PRICE AGREEMENT
__________, 2000
▇▇▇▇, ▇▇▇▇ & Co., Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Reference is made to the Underwriting Agreement, dated the date hereof
(the "Underwriting Agreement"), among the ▇▇▇▇▇▇ Parties (as defined in the
Underwriting Agreement), ▇▇▇▇, ▇▇▇▇ & Co., Inc. and ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, Inc.
(collectively, the "Underwriters"). The Underwriting Agreement provides for the
purchase by the Underwriters from New ▇▇▇▇▇▇ Financial, Inc. (the "Company") of
a number of shares of common stock of the Company to be determined in the manner
set forth in the Underwriting Agreement and to be set forth herein (the
"Shares").
This Agreement is the Price Agreement referred to in the Underwriting
Agreement.
Pursuant to Section 1 of the Underwriting Agreement, the Company
agrees with the Underwriters as follows:
1. The public offering price per Share shall be $10.
2. The purchase price for the Shares to be paid by the Underwriters
shall be $10 per Share.
3. The number of Initial Shares to be purchased by the several
Underwriters hereunder shall be as set forth opposite the
respective names of the Underwriters in Schedule I of the
Underwriting Agreement.
4. The Company agrees to pay a commission to the Underwriters for
their commitment hereunder in the amount of $_______ per Share.
5. The Company agrees to "carve out" 7,500,000 of the Conversion
Shares for the sale to the Underwriters hereunder, subject to the
priority of Subscription Shares subscribed for in the
Subscription Offering. In the event, however, that fewer than
7,500,000 shares are available for sale to the Underwriters as a
result of the subscriptions received in the Subscription
Offering, the Company agrees to pay to the Representatives a fee
equal to
33
1.5% of the difference between $75,000,000 and the gross proceeds
of the Shares actually sold to the Underwriters, as compensation
for acting as standby underwriters. This fee is in addition to
the commission payable on the Shares actually sold to the
Underwriters.
The ▇▇▇▇▇▇ Parties represent and warrant to the Underwriters that the
representations and warranties of the ▇▇▇▇▇▇ Parties set forth in Section 4 of
the Underwriting Agreement are accurate as though expressly made at and as of
the date hereof.
This Agreement shall be governed by the laws of the State of New
Jersey.
If the foregoing is in accordance with the understanding of the
Underwriters of the agreement between the Underwriters and the ▇▇▇▇▇▇ Parties,
please sign and return to the Company a counterpart hereof, whereupon this
instrument, along with all counterparts and together with the Underwriting
Agreement, shall be a binding agreement between the Underwriters and the Company
in accordance with its terms and the terms of the Underwriting Agreement.
▇▇▇▇▇▇ FINANCIAL, INC. ▇▇▇▇▇▇ SAVINGS BANK
By:____________________________________ By:__________________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇., President ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇., President
NEW ▇▇▇▇▇▇ FINANCIAL, INC. ▇▇▇▇▇▇ FINANCIAL M.H.C.
By:_____________________________________ By:__________________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇., President ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇., President
Confirmed and accepted as of the date first above written:
▇▇▇▇, ▇▇▇▇ & CO., INC.
By: _________________________
Name:________________________
Title:_______________________
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, INC.
By: _________________________
Name:________________________
Title:_______________________
34
Schedule I
NEW ▇▇▇▇▇▇ FINANCIAL, INC.
Underwriters
------------
Underwriter Number of Shares
----------- ----------------
▇▇▇▇, ▇▇▇▇ & Co.....................................
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, Inc.........................
[Other Underwriters]
35
EXHIBIT B
Lock-Up Agreement
▇▇▇▇, ▇▇▇▇ & Co., Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
RE: New ▇▇▇▇▇▇ Financial, Inc. (the "Company")
------------------------------------------
Ladies & Gentlemen:
The undersigned is an owner of record or beneficially of certain
shares of Common Stock of the ▇▇▇▇▇▇ Financial, Inc. ("Common Stock") or
securities convertible into or exchangeable or exercisable for Common Stock. The
Company proposes to carry out a public offering of Common Stock (the "Offering")
for which you will act as representatives (the "Representatives") of the several
underwriters. The undersigned recognizes that the Offering will be of benefit to
the undersigned and will benefit the Company by, among other things, raising
additional capital for its operations. The undersigned acknowledges that you and
the other underwriters are relying on the representations and agreements of the
undersigned contained in this letter in carrying out the Offering and in
entering into underwriting agreements with the Company with respect to the
Offering.
In consideration of the foregoing, the undersigned hereby agrees that
the undersigned will not offer to sell, contract to sell, or otherwise sell,
dispose of, loan, pledge or grant any rights with respect to (collectively, a
"Disposition") any shares of Common Stock, any options or warrants to purchase
any shares of Common Stock or any securities convertible into or exchangeable
for shares of Common Stock (collectively, "Securities") now owned or hereafter
acquired directly by such person or with respect to which such person has or
hereafter acquires the power of disposition, otherwise than (i) as a bona fide
gift or gifts, provided the donee or donees thereof agree in writing to be bound
by this restriction, (ii) as a distribution to partners or shareholders of such
person, provided that the distributees thereof agree in writing to be bound by
the terms of the restriction, (iii) with respect to dispositions of Common
Shares acquired on the open market, (iv) with respect to sales or purchases of
Common Stock acquired on the open market, or (v) with the prior written consent
of the Representatives, for a period commencing on the date hereof and
continuing to a date 180 days after the Post-Effective Amendment to the
Registration Statement is declared effective by the Securities and Exchange
Commission (the "Lock-up Period"). The foregoing restriction has been expressly
agreed to preclude the holder of the Securities from engaging in any hedging or
other transaction which is designed to or reasonably expected to lead to or
result in a Disposition of Securities during the Lock-up Period, even if such
Securities would be disposed of by someone other than such holder. Such
prohibiting hedging or other transactions would include, without limitation, any
short sale (whether or not against the box) or any purchase, sale or grant of
any right (including, without limitation, any put or call option) with respect
to any Securities or with respect to any security (other than a broad-based
market basket or index) that included, relates to or derives any significant
part of its value from Securities. The undersigned also agrees and consents to
the entry of stop transfer instructions with the Company's transfer agent and
registrar against the transfer of shares of Common Stock or Securities held by
the undersigned except in compliance with the foregoing restrictions.
36
This agreement is irrevocable and will be binding on the undersigned
and the respective successors, heirs, personal representatives, and assigns of
the undersigned. This letter agreement shall terminate and be no further force
and effect upon a decision by the Representatives or the Company not to proceed
with the Offering.
Dated: ________________________
-----------------------------------
[Printed Name of Holder]
By: ________________________________
[Signature]
-----------------------------------
Printed Name of Person Signing
37