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EXHIBIT 1
$12,500,000
PROVIDENT CAPITAL TRUST III
10 1/4% TRUST PREFERRED SECURITIES
AS FULLY AND UNCONDITIONALLY GUARANTEED BY
PROVIDENT FINANCIAL GROUP, INC.
UNDERWRITING AGREEMENT
----------------------
November 20, 2000
▇▇▇▇▇▇ BROTHERS INC.
▇.▇. ▇▇▇▇▇▇▇ & SONS, INC.
PRUDENTIAL SECURITIES INCORPORATED
MCDONALD INVESTMENTS INC.
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
▇▇▇▇▇▇▇▇ INC.
As Representatives of the several
Underwriters named in Schedule 1
c/▇ ▇▇▇▇▇▇ Brothers Inc.
Three World Financial Center
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Provident Financial Group, Inc., an Ohio corporation (the
"Company"), proposes to sell an aggregate of $12.5 million liquidation amount of
10 1/4% Trust Preferred Securities, liquidation amount $25 per Trust Preferred
Security (the "Preferred Securities") of Provident Capital Trust III, a
statutory business trust formed under the Business Trust Act of the State of
Delaware (the "Trust"), guaranteed (the "Guarantee" and, together with the
Preferred Securities and the Junior Subordinated Debentures referred to below,
the "Securities") by the Company pursuant to the Guarantee Agreement (the
"Guarantee Agreement") between the Company and The Chase Manhattan Bank, as
guarantee trustee (the "Guarantee Trustee"), dated November 13, 2000. The
Company will be the owner of all of the undivided beneficial ownership interests
represented by the common securities (the "Common Securities") of the Trust. The
Trust will issue the Preferred Securities and the Common Securities to the
Company in exchange for 10 1/4% Junior Subordinated Debentures due 2030 (the
"Junior Subordinated Debentures") issued by the Company. The Junior Subordinated
Debentures are to be issued pursuant to an Indenture (the "Indenture") between
the Company and The Chase Manhattan Bank, as indenture trustee (the "Indenture
Trustee"), dated November 13, 2000. This is to confirm the agreement concerning
the purchase of the Securities from the Trust and the Company by the
Underwriters named in Schedule 1 hereto (the "Underwriters"). This is also an
acknowledgment that this Agreement applies only to the Securities and to no
other securities that may be offered or sold by the Company or any of its
statutory business trusts under the Registration Statement and by means of the
Basic Prospectus or the Final Prospectus.
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1. Representations, Warranties and Agreements of the Company and the Trust. The
Company and the Trust, jointly and severally, represent, warrant and agree that:
(a) The Company meets the requirements for the use of Form S-3 under
the Securities Act of 1933, as amended (the "Securities Act"), and the rules and
regulations promulgated thereunder (the "Rules and Regulations"), and has
carefully prepared and filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (File No. 333- 93603), which
has become effective, for the registration of the Securities under the
Securities Act. The registration statement, as amended at the date of this
Agreement, meets the requirements set forth in Rule 415(a)(1)(x) under the
Securities Act and complies in all other material respects with such rule. The
Company proposes to file with the Commission pursuant to Rule 424 under the
Securities Act ("Rule 424") a supplement to the form of prospectus included in
the registration statement relating to the initial offering of the Securities
and the plan of distribution thereof and has previously advised you of all
further information (financial and other) with respect to the Company to be set
forth therein. The term "Registration Statement" means the registration
statement, as amended at the date of this Agreement, including the exhibits
thereto, financial statements, and all documents incorporated therein by
reference pursuant to Item 12 of Form S-3 under the Securities Act (the
"Incorporated Documents"), and such prospectus as then amended, including the
Incorporated Documents, is hereinafter referred to as the "Basic Prospectus";
and such supplemented form of prospectus, in the form in which it shall be filed
with the Commission pursuant to Rule 424 (including the Basic Prospectus as so
supplemented), is hereinafter called the "Final Prospectus". Any preliminary
form of the Basic Prospectus or the Final Prospectus which has heretofore been
filed pursuant to Rule 424 is hereinafter called the "Interim Prospectus". Any
reference herein to the Registration Statement, the Basic Prospectus, any
Interim Prospectus or the Final Prospectus shall be deemed to refer to and
include the Incorporated Documents which were filed under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), on or before the date of
this Agreement or the issue date of the Basic Prospectus, any Interim Prospectus
or the Final Prospectus, as the case may be; and any reference herein to the
terms "amend", "amendment" or "supplement" with respect to the Registration
Statement, the Basic Prospectus, any Interim Prospectus or the Final Prospectus
shall be deemed to refer to and include the filing of any Incorporated Documents
under the Exchange Act after the date of this Agreement or the issue date of the
Basic Prospectus, any Interim Prospectus or the Final Prospectus, as the case
may be, and deemed to be incorporated therein by reference. Copies of the
Registration Statement and the amendment or amendments to such Registration
Statement have been delivered by the Company and the Trust to you as the
representative (the "Representatives") of the Underwriters. The Commission has
not issued any order preventing or suspending the use of the Registration
Statement and no proceeding for that purpose has been initiated by the
Commission.
(b) The Registration Statement conforms and the Final Prospectus and
any further amendments or supplements to the Registration Statement or the Final
Prospectus, when they become effective or were filed with the Commission, as the
case may be, will conform in all material respects to the requirements of the
Securities Act and the Rules and Regulations and do not and will not, as of the
applicable effective date (as to the Registration Statement and any amendment
thereto) and as of the applicable filing date (as to the Final Prospectus and
any amendment or supplement thereto) contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary
to make the statements therein, in light of the circumstances under which they
were made, not misleading; provided that no representation or warranty is made
as to information contained in or omitted from the Registration Statement or the
Final Prospectus in reliance upon and in conformity with written information
furnished to the Company and the Trust through the Representatives by or on
behalf
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of any Underwriter specifically for inclusion therein; the Indenture, the
Declaration and the Guarantee Agreement conform in all material respects to and
have been qualified under the requirements of the Trust Indenture Act of 1939,
as amended (the "Trust Indenture Act") and the applicable rules and regulations
thereunder.
(c) The documents incorporated by reference in the Final Prospectus,
when they were filed with the Commission, conformed in all material respects to
the requirements of the Exchange Act and the rules and regulations of the
Commission thereunder, and none of such documents contained an untrue statement
of a material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading; and any further
documents so filed and incorporated by reference in the Final Prospectus, when
such documents are filed with the Commission, will conform in all material
respects to the requirements of the Exchange Act, and the rules and regulations
of the Commission thereunder, and will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated therein, in
light of the circumstances under which they were made, or necessary to make the
statements therein not misleading.
(d) The Company and each of its subsidiaries (as defined in Section 15
hereof) have been duly incorporated and are validly existing as corporations or
as banking associations in good standing under the laws of their respective
jurisdictions of incorporation, are duly qualified to do business and are in
good standing as foreign corporations in each jurisdiction in which their
respective ownership or lease of property or the conduct of their respective
businesses requires such qualification other than where the failure to be so
qualified and in good standing could not reasonably be expected to have a
material adverse effect on the business, financial condition or operating
results of the Company and its subsidiaries taken as a whole, and each has all
power and authority necessary to own or hold their respective properties and to
conduct the businesses in which they are engaged.
(e) The Company has an authorized capitalization as set forth in the
Final Prospectus and all of the issued shares of capital stock of the Company
have been duly and validly authorized and issued and are fully paid and
non-assessable and conform to the description thereof contained in the Final
Prospectus; and all of the issued shares of capital stock of each subsidiary of
the Company have been duly and validly authorized and issued and are fully paid
and non-assessable (except as set forth in 12 U.S.C. ss.55) and are owned
directly or indirectly by the Company (except for directors' qualifying shares,
if any), free and clear of all liens, encumbrances, equities or claims.
(f) The Trust has been duly created and is validly existing as a
statutory business trust in good standing under the Business Trust Act of the
State of Delaware (the "Delaware Business Trust Act") with the trust power and
authority to own property and conduct its business as described in the Final
Prospectus; the Trust has conducted and will conduct no business other than the
transactions contemplated by this Agreement as described in the Final
Prospectus; the Trust is not a party to or bound by any agreement or instrument
other than this Agreement, the Declaration of Trust dated as of May 14, 1999 and
the Amended and Restated Declaration of Trust dated as of November 13, 2000 (the
"Declaration") among the Company, The Chase Manhattan Bank, as property trustee
(the "Property Trustee"), Chase Manhattan Bank USA, National Association, as
Delaware trustee (the "Delaware Trustee") and the individuals named therein as
the regular trustees (the "Regular Trustees," and together with the Property
Trustee and the Delaware Trustees, the "Trustees"), and the holders, from time
to time, of undivided beneficial ownership interests in the assets of the Trust,
and the agreements and instruments contemplated by the Declaration and described
in the Final Prospectus; the Trust has no liabilities or obligations other than
those arising out of the transactions contemplated by this Agreement and the
agreements and instruments contemplated by the Declaration and described
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in the Final Prospectus; and the Trust is not a party or subject to any action,
suit or proceeding of any nature.
(g) The Declaration has been duly authorized, executed and delivered by
the Company, as Sponsor, and the Regular Trustees, and, assuming due
authorization, execution and delivery of the Declaration by the Property Trustee
and the Delaware Trustee, constitutes a valid and legally binding obligation of
the Company and the Trust, enforceable against the Company and the Trust in
accordance with its terms, subject to the effects of bankruptcy, insolvency,
fraudulent conveyance and transfer, reorganization, moratorium and other similar
laws relating to or affecting the rights of creditors generally, general
equitable principles (whether considered in a proceeding in equity or at law)
and an implied covenant of good faith and fair dealing, and will conform in all
material respects to the description thereof contained in the Final Prospectus.
Each of the Regular Trustees is an employee of the Company and/or The Provident
Bank and has been duly authorized by the Company and/or The Provident Bank to
serve in such capacity and to execute and deliver the Declaration.
(h) The Preferred Securities and the Common Securities have been duly
and validly authorized and, when issued and delivered in exchange for the Junior
Subordinated Debentures as described above, will be duly and validly issued and
fully paid and the Preferred Securities will be non-assessable; and the
Preferred Securities and the Common Securities, when issued and delivered, will
conform in all material respects to the description thereof contained in the
Final Prospectus.
(i) The Indenture has been duly authorized, executed and delivered by
the proper officers of the Company, and assuming due execution and delivery by
the Indenture Trustee, constitutes a valid and legally binding agreement of the
Company enforceable against the Company in accordance with its terms, subject to
the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting creditors' rights
generally, general equitable principles (whether considered in a proceeding in
equity or at law) and an implied covenant of good faith and fair dealing; and
the Indenture, will conform in all material respects to the description thereof
contained in the Final Prospectus; the Junior Subordinated Debentures have been
duly authorized and, when duly executed, authenticated and delivered as provided
in the Indenture, will be duly and validly issued and outstanding and will
constitute valid and legally binding obligations of the Company entitled to the
benefits of the Indenture and enforceable against the Company in accordance with
their terms, subject to the effects of bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other similar laws relating to or
affecting creditors' rights generally, general equitable principles (whether
considered in a proceeding in equity or at law) and an implied covenant of good
faith and fair dealing; and the Junior Subordinated Debentures, when issued and
delivered, will conform in all material respects to the description thereof
contained in the Final Prospectus.
(j) The Guarantee Agreement has been duly authorized, executed and
delivered by the proper officers of the Company, and assuming due execution and
delivery by the Guarantee Trustee, constitutes a valid and legally binding
agreement of the Company, enforceable against the Company in accordance with its
terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or affecting
creditors' rights generally, general equitable principles (whether considered in
a proceeding in equity or at law) and an implied covenant of good faith and fair
dealing; and the Guarantee
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Agreement, will conform in all material respects to the description thereof
contained in the Final Prospectus.
(k) This Agreement (and the transactions contemplated hereby) has been
duly authorized, executed and delivered by each of the Company and the Trust.
(l) (i) The execution, delivery and performance of this Agreement, the
Declaration, the Guarantee Agreement, the Indenture, the Common Securities, the
Preferred Securities and the Junior Subordinated Debentures by the Company and
the Trust, as applicable, the issuance of the Common Securities and the
Preferred Securities by the Trust in exchange for the Junior Subordinated
Debentures, the issuance of the Junior Subordinated Debentures by the Company in
exchange for the Common Securities and the Preferred Securities, the sale of the
Preferred Securities by the Company and the consummation of the other
transactions contemplated herein and therein will not conflict with or result in
a breach or violation of any of the terms or provisions of, or constitute a
default under, any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which the Company or any of its subsidiaries is a
party or by which the Company or any of its subsidiaries is bound or to which
any of the property or assets of the Company or any of its subsidiaries is
subject and will not violate or conflict with any statute or any order, rule or
regulation of any court or governmental agency or body having jurisdiction over
the Company, any of its subsidiaries or the Trust or any of their properties or
assets, except for such conflict, breach, violations or defaults as would not,
either individually or in the aggregate, have a material adverse effect on the
business, financial condition or operating results of the Company and its
subsidiaries taken as a whole; nor will such actions result in any violation of
the provisions of the charter or by-laws of the Company or any of its
subsidiaries; and except for such consents, authorizations, registrations or
qualifications as have already been obtained or as may be required under the
Exchange Act and applicable state securities laws in connection with the
purchase and distribution of the Preferred Securities by the Underwriters, no
consent, approval, authorization or order of, or filing or registration with,
any such court or governmental agency or body is required for the execution,
delivery and performance of this Agreement, the Declaration, the Guarantee
Agreement, the Indenture or the Junior Subordinated Debentures, the issuance of
the Common Securities and the Preferred Securities by the Trust in exchange for
the Junior Subordinated Securities, the issuance of the Junior Subordinated
Debentures by the Company in exchange for the Common Securities and the
Preferred Securities, the sale of the Preferred Securities by the Company or the
consummation of the transactions contemplated herein and therein.
(m) There are no contracts, agreements or understandings between the
Company or any of its subsidiaries or the Trust and any person granting such
person the right to require the Company or the Trust to include any other
securities in the securities registered pursuant to the Registration Statement.
(n) Neither the Company nor any of its subsidiaries has sustained,
since the date of the latest audited financial statements included or
incorporated by reference in the Final Prospectus, any material loss or
interference with its business from fire, explosion, flood or other calamity,
whether or not covered by insurance, or from any labor dispute or court or
governmental action, order or decree, otherwise than as set forth or
contemplated in the Final Prospectus; and, since such date, there has not been
any material change in the capital stock or long-term debt of the Company or any
of its subsidiaries, or any material adverse change, or any development
involving a prospective material adverse change, in or affecting the general
affairs, management, financial position or results of operations of the Company
and its subsidiaries taken as a whole, otherwise than as set forth or
contemplated in the Final Prospectus.
(o) The financial statements (including the related notes and
supporting schedules) filed as part of the Registration Statement or included or
incorporated by reference in the Final
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Prospectus present fairly in all material respects the financial condition and
results of operations of the entities purported to be shown thereby, at the
dates and for the periods indicated, and have been prepared in conformity with
generally accepted accounting principles applied on a consistent basis
throughout the periods involved; the pro forma financial information included in
the Final Prospectus has been prepared in accordance with the requirements of
Regulation S-X promulgated by the Commission and contains all adjustments
necessary for a fair presentation of the information set forth therein; and the
information contained in the Final Prospectus that constitutes "forward-looking
statements" within the meaning of Section 21E(i)(1) of the Exchange Act has been
prepared on the basis of the Company's best current judgments and estimations as
to future operating plans and results.
(p) Ernst & Young, LLP, who have certified certain financial statements
of the Company, whose report appears in the Final Prospectus or is incorporated
by reference therein and who have delivered the initial letter referred to in
Section 7(h) hereof, are independent public accountants as required by the
Securities Act and the Rules and Regulations.
(q) There are no legal or governmental proceedings pending to which the
Company or any of its subsidiaries is a party or of which any property or assets
of the Company or any of its subsidiaries is the subject which, if determined
adversely to the Company or any of its subsidiaries, might have a material
adverse effect on the consolidated financial position, stockholders' equity,
results of operations or business of the Company and its subsidiaries taken as a
whole; and to the best of the Company's knowledge, no such proceedings are
threatened or contemplated by governmental authorities or threatened by others.
(r) The conditions for use of Form S-3, as set forth in the General
Instructions thereto, have been satisfied.
(s) There are no contracts or other documents which are required to be
described in the Final Prospectus or filed as exhibits to the Registration
Statement by the Securities Act or by the Rules and Regulations which have not
been described in the Final Prospectus or filed as exhibits to the Registration
Statement or incorporated therein by reference as permitted by the Rules and
Regulations.
(i) Neither the Company nor any of its subsidiaries is in
violation of its charter or by-laws, is in default in any material respect, and
no event has occurred which, with notice or lapse of time or both, would
constitute such a default, in the due performance or observance of any term,
covenant or condition contained in any material indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument to which it is a party or
by which it is bound or to which any of its property or assets is subject or is
in violation in any material respect of any law, ordinance, governmental rule,
regulation or court decree to which it or its property or assets may be subject
or has failed to obtain any material license, permit, certificate, franchise or
other governmental authorization or permit necessary to the ownership of its
properties or assets or to the conduct of its business.
(t) None of the Trust, the Company or any of the Company's subsidiaries
is an "investment company" within the meaning of such term under the Investment
Company Act of 1940, as amended (the "Investment Company Act"), and the rules
and regulations of the Commission thereunder.
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(u) Except as set forth or contemplated in the Final Prospectus, since
the date as of which information is given in the Registration Statement through
the date hereof, and except as may otherwise be disclosed in the Registration
Statement, as amended or supplemented, neither the Company nor the Trust has (i)
issued or granted any securities, (ii) incurred any liability or obligation,
direct or contingent, other than liabilities and obligations which were incurred
in the ordinary course of business, (iii) entered into any transaction not in
the ordinary course of business or (iv) in the case of the Company, declared or
paid any dividend on its capital stock.
(v) To the best of the Company's knowledge, there has been no storage,
disposal, generation, manufacture, refinement, transportation, handling or
treatment of toxic wastes, medical wastes, hazardous wastes or hazardous
substances by the Company or any of its subsidiaries (or, to the knowledge of
the Company, any of their predecessors in interest) at, upon or from any of the
properties now or previously owned or leased by the Company or its subsidiaries
in violation of any applicable law, ordinance, rule, regulation, order,
judgment, decree or permit or which would require remedial action under any
applicable law, ordinance, rule, regulation, order, judgment, decree or permit,
except for any violation or remedial action which would not have, or could not
be reasonably likely to have, singularly or in the aggregate with all such
violations and remedial actions, a material adverse effect on the general
affairs, management, financial position, stockholders' equity or results of
operations of the Company and its subsidiaries; there has been no material
spill, discharge, leak, emission, injection, escape, dumping or release of any
kind onto such property or into the environment surrounding such property of any
toxic wastes, medical wastes, solid wastes, hazardous wastes or hazardous
substances due to or caused by the Company or any of its subsidiaries or with
respect to which the Company or any of its subsidiaries have knowledge, except
for any such spill, discharge, leak, emission, injection, escape, dumping or
release which would not have or would not be reasonably likely to have,
singularly or in the aggregate with all such spills, discharges, leaks,
emissions, injections, escapes, dumpings and releases, a material adverse effect
on the business, financial position or operating results of the Company and its
subsidiaries; and the terms "hazardous wastes," "toxic wastes," "hazardous
substances" and "medical wastes" shall have the meanings specified in any
applicable local, state, federal and foreign laws or regulations with respect to
environmental protection.
(w) The Company is duly registered as a bank holding company under the
Bank Holding Company Act of 1956, as amended (the "BHC Act").
(x) The deposit accounts of each of the Company's bank subsidiaries are
insured by the Federal Deposit Insurance Corporation (the "FDIC") to the fullest
extent permitted by law and the rules and regulations of the FDIC; and no
proceedings for the termination of such insurance are pending or threatened.
(y) The Company and each of its subsidiaries are in compliance in all
material respects, as required, with all laws administered by and regulations of
the Board of Governors of the Federal Reserve System, the FDIC, the Ohio
Division of Financial Institutions and any other federal or state bank
regulatory authority with jurisdiction over the Company or any of its
subsidiaries (collectively, the "Bank Regulatory Authorities"), other than where
such failures to comply would not have a material adverse effect on the Company
and its subsidiaries, taken as a whole. Neither the Company nor any of its
subsidiaries is a party to any written agreement or memorandum of understanding
with, or a party to any commitment letter or similar undertaking to, or is
subject to any order or directive by, or is a recipient of any extraordinary
supervisory letter from, or has adopted any board resolutions at the request of,
any Bank Regulatory Authority which materially restricts the conduct of its
business, or in any manner relates to its capital adequacy, its credit policies
or its management, nor have any of them been advised by any Bank Regulatory
Authority that it is contemplating issuing or requesting, or is considering the
appropriateness of issuing or requesting, any such order, decree, agreement,
memorandum of
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understanding, extraordinary supervisory letter, commitment letter or similar
submission or any such board resolutions.
(aa) Immediately prior to the closing of the transactions
contemplated hereby on the Closing Date, the Company will have good and
valid title to the Preferred Securities to be sold by it hereunder,
free and clear of all liens, encumbrances, equities or claims; and upon
delivery of the Preferred Securities and payment therefor pursuant
hereto, good and valid title to the Preferred Securities, free and
clear of all liens, encumbrances, equities or claims, will pass to the
several Underwriters.
2. Purchase of the Preferred Securities by the Underwriters. (a) The Company
hereby agrees to sell to the several Underwriters, and each Underwriter, upon
the basis of the representations, warranties and agreements herein contained,
but subject to the conditions hereinafter stated, agrees, severally and not
jointly, to purchase from the Company, the respective liquidation amount of
Preferred Securities set forth in Schedule 1 hereto opposite their names at a
purchase price of 100% of the liquidation amount thereof plus accrued
distributions from November 13, 2000 to the Closing Date.
(b) As compensation to the Underwriters for their commitments
hereunder, the Company shall, on the Closing Date (as defined in Section 4
hereof) pay to the Representatives, for the accounts of the several
Underwriters, a commission equal to 3.15% of the liquidation amount of the
Preferred Securities to be delivered and purchased on the Closing Date.
(c) The Company and the Trust shall not be obligated to deliver any of
the Securities to be delivered on the Closing Date, except upon payment for all
the Securities to be purchased on such Delivery Date as provided herein.
3. Offering of Preferred Securities by the Underwriters. Upon authorization by
the Representatives of the release of the Preferred Securities, the several
Underwriters propose to offer the Preferred Securities for sale upon the terms
and conditions set forth in the Final Prospectus.
(a) Delivery of and Payment. Delivery by the Company of the Preferred
Securities to the Representatives for the respective accounts of the several
Underwriters and payment by the Underwriters therefor by wire transfer in
federal (same day) funds to such account as the Company shall specify, shall
take place at the offices of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, at 9:30 a.m. on November 27, 2000 or such other date
and time as agreed between the Representatives and the Company or as provided in
Section 9 hereof (such date and time of delivery and payment for the Preferred
Securities being herein called the "Closing Date").
(b) The Preferred Securities will be in the form of one or more global
Preferred Securities registered in the name of Cede & Co., as nominee of The
Depository Trust Company ("DTC").
(c) On the Closing Date, the Company shall pay, or cause to be paid,
the commissions payable on the Closing Date to the Representatives for the
accounts of the Underwriters under Section 2 by wire transfer in federal (same
day) funds to such account as the Representatives shall specify.
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4. Further Agreements of the Company and the Trust. Each of the Company and the
Trust, jointly and severally, agrees:
(a) To prepare the Final Prospectus in a form approved by the
Representatives and to file such Prospectus pursuant to Rule 424(b) under the
Securities Act not later than the Commission's close of business on the second
business day following the execution and delivery of this Agreement; to advise
the Representatives, promptly after it receives notice thereof, of the time when
any amendment to the Registration Statement has been filed or becomes effective
or any supplement to the Final Prospectus or any amended Final Prospectus has
been filed and to furnish the Representatives with copies thereof; to file
promptly all reports and any definitive proxy or information statements required
to be filed by the Company with the Commission pursuant to Section 13(a), 13(c),
14 or 15(d) of the Exchange Act subsequent to the date of the Final Prospectus
and for so long as the delivery of a prospectus is required in connection with
the offering or sale of the Securities; to advise the Representatives, promptly
after it receives notice thereof, of the issuance by the Commission of any stop
order or of any order preventing or suspending the use of any Interim Prospectus
or the Final Prospectus, of the suspension of the qualification of the
Securities for offering or sale in any jurisdiction, of the initiation or
threatening of any proceeding for any such purpose, or of any request by the
Commission for the amending or supplementing of the Registration Statement or
the Final Prospectus or for additional information; and, in the event of the
issuance of any stop order or of any order preventing or suspending the use of
any Interim Prospectus or the Final Prospectus or suspending the use of any
Interim Prospectus or the Final Prospectus or suspending any such qualification,
to use promptly its best efforts to obtain its withdrawal;
(b) To furnish promptly to the Representatives and to counsel for the
Underwriters a signed copy of the Registration Statement as originally filed
with the Commission, and each amendment thereto filed with the Commission,
including all consents and exhibits filed therewith;
(i) To deliver promptly to the Representatives such number of
the following documents as the Representatives shall reasonably request:
conformed copies of the Registration Statement as originally filed with the
Commission and each amendment thereto (in each case excluding exhibits other
than this Agreement, the Indenture, the Declaration, the Guarantee Agreement and
the computation of the ratio of earnings to fixed charges), each Interim
Prospectus, the Final Prospectus (including the Prospectus Supplement) (not
later than 10:00 A.M., New York City time, on the day following the execution
and delivery of this Agreement) and any amended or supplemented Final Prospectus
(not later than 10:00 A.M., New York City time, on the day following the date of
such amendment or supplement) and (iii) any document incorporated by reference
in any Interim Prospectus or the Final Prospectus (excluding exhibits thereto);
and, if the delivery of a prospectus is required at any time after the effective
time of the Registration Statement in connection with the offering or sale of
the Securities (or any other securities relating thereto) and if, at such time,
any events shall have occurred as a result of which the Final Prospectus as then
amended or supplemented would include an untrue statement of a material fact or
omit to state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made when such
Final Prospectus is delivered, not misleading, or, if for any other reason it
shall be necessary during such same period to amend or supplement the Final
Prospectus or to file under the Exchange Act any document incorporated by
reference in the Final Prospectus in order to comply with the Securities Act or
the Exchange Act, to notify the Representatives and, upon their request, to file
such document and to prepare and furnish without charge to each Underwriter and
to any dealer in securities as many copies as the Representatives may from time
to time reasonably request of an amended or supplemented Final Prospectus which
will correct such statement or omission or effect such compliance;
10
(c) To file promptly with the Commission any amendment to the
Registration Statement or the Final Prospectus or any supplement to the Final
Prospectus that may, in the judgment of the Company or the Representatives, be
required by the Securities Act or requested by the Commission;
(d) Prior to filing with the Commission any amendment to the
Registration Statement or supplement to the Final Prospectus, any document
incorporated by reference in the Final Prospectus or any Final Prospectus
pursuant to Rule 424 of the Rules and Regulations, to furnish a copy thereof to
the Representatives and counsel for the Underwriters and obtain the consent of
the Representatives to the filing;
(e) To make generally available to the Company's security holders and
to deliver to the Representatives as soon as practicable an earnings statement
of the Company and its subsidiaries (which need not be audited) complying with
Section 11(a) of the Securities Act and the Rules and Regulations (including, at
the option of the Company, Rule 158);
(f) For a period of five years following the Closing Date, to furnish
to the Representatives copies of all materials furnished by the Company to its
shareholders and all public reports and all reports and financial statements
furnished by the Company to the principal national securities exchange upon
which the Company's common stock may be listed or quoted pursuant to
requirements of, or agreements with, such exchange or to the Commission pursuant
to the Exchange Act or any rule or regulation of the Commission thereunder;
(g) Promptly from time to time to take such action as the
Representatives may reasonably request to qualify the Securities for offering
and sale under the securities laws of such jurisdictions in the United States as
the Representatives may request and to comply with such laws so as to permit the
continuance of sales and dealings therein in such jurisdictions for as long as
may be necessary to complete the distribution of the Securities; provided that
in connection therewith, neither the Trust nor the Company shall be obligated to
qualify as a foreign corporation or to file a general consent to service of
process;
(h) For a period of 30 days from the date of the Final Prospectus, not
to, directly or indirectly, (1) offer for sale, sell, pledge or otherwise
dispose of (or enter into any transaction or device which is designed to, or
could be expected to, result in the disposition by any person at any time in the
future of) any trust certificate or other securities of the Trust other than the
issuance of the Preferred Securities and Common Securities to the Company in
exchange for the Junior Subordinated Debentures and the sale of the Preferred
Securities by the Company to the Underwriters, as contemplated by this Agreement
and the Final Prospectus, any securities that are substantially similar to the
Securities, or any securities that are convertible into, or exchangeable or
exercisable for, any of the foregoing, or (2) enter into any swap or other
derivatives transaction that transfers to another, in whole or in part, any of
the economic benefits or risks of ownership of the Securities, whether any such
transaction described in clauses (1) and (2) of this paragraph is to be settled
by delivery of the Securities or other securities, in cash or otherwise, in each
case without the prior written consent of ▇▇▇▇▇▇ Brothers Inc., on behalf of the
Representatives;
(i) Prior to the Closing Date, to apply for the listing of the
Preferred Securities on the New York Stock Exchange, Inc. and to use its best
efforts to complete that listing, subject
11
only to official notice of issuance and evidence of satisfactory distribution,
prior to the Closing Date;
(j) To apply the net proceeds from the sale of the Securities
as set forth in the Final Prospectus; and
(k) To take such steps as shall be necessary to ensure that none of the
Company, any subsidiary of the Company or the Trust shall become an "investment
company" within the meaning of such term under the Investment Company Act and
the rules and regulations of the Commission thereunder.
5. Expenses. The Company and the Trust agree to pay the costs incident to the
authorization, issuance, sale and delivery of the Securities and any taxes
payable in that connection; the costs incident to the preparation, printing and
filing under the Securities Act of the Registration Statement, the Basic
Prospectus, any Interim Prospectus, the Final Prospectus and any amendments and
exhibits thereto; the costs of distributing the Registration Statement as
originally filed and each amendment thereto and any post-effective amendments
thereof (including, in each case, exhibits thereto), the Basic Prospectus, any
Interim Prospectus, the Final Prospectus and any amendment or supplement to any
such prospectus or any document incorporated by reference therein, all as
provided in this Agreement; the costs of producing and distributing this
Agreement and any other related documents in connection with the offering,
purchase, sale and delivery of the Securities; any applicable listing or other
fees; the fees and expenses of qualifying the Securities under the securities
laws of the several jurisdictions as provided in Section hereof and of
preparing, printing and distributing a Blue Sky Memorandum (including related
fees and expenses of counsel to the Underwriters); any fees charged by
securities rating services for rating the Securities; the fees and expenses of
the Property Trustee, the Guarantee Trustee and the Indenture Trustee; and all
other costs and expenses incident to the performance of the obligations of the
Company and the Trust under this Agreement; provided that, except as provided in
this Section and in Section hereof, the Underwriters shall pay their own costs
and expenses, including the costs and expenses of their counsel, any transfer
taxes on the Securities which they may sell and the expenses of advertising any
offering of the Preferred Securities made by the Underwriters.
6. Conditions of Underwriters' Obligations. The respective obligations of the
Underwriters hereunder are subject to the accuracy, when made and on the Closing
Date, of the representations and warranties of the Company and the Trust
contained herein, to the performance by the Company and the Trust of their
respective obligations hereunder, and to each of the following additional terms
and conditions:
(a) The Final Prospectus shall have been timely filed with the
Commission in accordance with Section hereof; no stop order suspending the
effectiveness of the Registration Statement or any part thereof shall have been
issued and no proceeding for that purpose shall have been initiated or
threatened by the Commission; and any request of the Commission for inclusion of
additional information in the Registration Statement or the Final Prospectus or
otherwise shall have been complied with.
(b) No Underwriter shall have discovered and disclosed to the Company
on or prior to the Closing Date that the Registration Statement or the Final
Prospectus or any amendment or supplement thereto contains an untrue statement
of a fact which, in the opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for the
Underwriters, is material or omits to state a fact which, in the opinion of such
counsel, is material and is required to be stated therein or is necessary to
make the statements therein not misleading.
12
(c) All corporate proceedings an other legal matters incident to the
authorization, form and validity of this Agreement, the Indenture, the
Declaration, the Guarantee Agreement, the Securities, the Junior Subordinated
Debentures, the Registration Statement, the Basic Prospectus, any Interim
Prospectus and the Final Prospectus, and all other legal matters relating to
this Agreement and the transactions contemplated hereby, shall be reasonably
satisfactory in all material respects to counsel for the Underwriters; and the
Company and the Trust shall have furnished to such counsel all documents and
information that they may reasonably request to enable them to pass upon such
matters.
(d) ▇▇▇▇▇▇▇, Muething & ▇▇▇▇▇▇▇ P.L.L. shall have furnished to the
Representatives its written opinion, as counsel to the Company, addressed to the
Underwriters and dated the Closing Date, in form and substance satisfactory to
the Representatives, to the effect that:
(1) The Company and each of its Significant Subsidiaries (as
such term is defined in Rule 12b-2 of the Commission under the Exchange Act)
have been duly incorporated and are validly existing as corporations or banking
associations in good standing under the laws of their respective jurisdictions
of incorporation, are duly qualified to do business and are in good standing as
foreign corporations in each jurisdiction in which their respective ownership or
lease of property or the conduct of their respective businesses requires such
qualification (other than those jurisdictions in which the failure to so qualify
would not have a material adverse effect on the Company or the Company and its
subsidiaries taken as a whole), and have all power and authority necessary to
own or hold their respective properties and conduct the businesses in which they
are engaged.
(2) The Underwriting Agreement has been duly authorized,
executed and delivered by the Company and has been duly executed and delivered
by the Trust.
(3) The Indenture has been duly authorized, executed, and
delivered by the Company, has been duly qualified under the Trust Indenture Act
and, assuming due authorization, execution and delivery thereof by the Indenture
Trustee, constitutes a valid and legally binding obligation of the Company,
enforceable against the Company in accordance with its terms, subject to the
effects of bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting creditors' rights
generally, general equitable principles (whether considered in a proceeding in
equity or at law) and an implied covenant of good faith and fair dealing.
(4) The Junior Subordinated Debentures have been duly
authorized, executed and delivered by the Company, and, assuming due
authentification thereof by the Indenture Trustee and payment and delivery as
provided herein, constitute valid and legally binding obligations of the Company
enforceable against the Company in accordance with their terms, subject to the
effects of bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting creditors' rights
generally, general equitable principles (whether considered in a proceeding in
equity or at law) and an implied covenant of good faith and fair dealing, and
entitled to the benefits of the Indenture.
(5) The Guarantee Agreement has been duly authorized, executed
and delivered by the Company, has been duly qualified under the Trust
13
Indenture Act and, assuming due authorization, execution and delivery by the
Guarantee Trustee, constitutes a valid and legally binding obligation of the
Company, enforceable against the Company in accordance with its terms, subject
to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting creditors' rights
generally, general equitable principles (whether considered in a proceeding in
equity or at law) and an implied covenant of good faith and fair dealing.
(6) The Declaration has been duly authorized, executed and
delivered by the Company in its capacity as sponsor thereunder and has been duly
qualified under the Trust Indenture Act.
(7) The execution, delivery and performance of this Agreement,
the Declaration, the Indenture, the Junior Subordinated Debentures, the
Preferred Securities, the Common Securities and the Guarantee Agreement by the
Company and the Trust, as applicable, and the consummation of the transactions
contemplated hereby and thereby, will not constitute a material breach of, or
constitute a default under, any material indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument to which the Company or any of
its Significant Subsidiaries is a party or by which the Company or any of its
Significant Subsidiaries is bound or to which any of the property or assets of
the Company or any of its Significant Subsidiaries is subject, nor will such
actions result in any violation of the provisions of the charter or by-laws of
the Company or any of its Significant Subsidiaries or any statute or any order,
rule or regulation of any court or governmental agency or body having
jurisdiction over the Company or any of its Significant Subsidiaries or any of
their respective properties or assets, the effects of which breach, violation or
default would be material to the Company and its subsidiaries taken as a whole.
(8) All of the outstanding shares of capital stock of each
Significant Subsidiary have been duly authorized and validly issued and are
fully paid and non-assessable; except as disclosed in the Final Prospectus, all
such shares are owned by the Company (except for any directors' qualifying
shares) free and clear of any pledge, lien, security interest, charge, claim,
equitable right or encumbrance of any kind.
(9) No consent, approval authorization, order, registration or
qualification of or with any Federal or Ohio governmental agency or body or, to
such counsel's knowledge, any Federal or Ohio court is required for the issue by
the Trust of the Preferred Securities and the Common Securities in exchange for
the Junior Subordinated Debentures, the issuance by the Company of the Junior
Subordinated Debentures in exchange for the Common Securities and the Preferred
Securities, the sale by the Company of the Preferred Securities, the issuance
and sale of the Guarantee by the Company and the compliance by the Company and
the Trust with all of the provisions of this Agreement and the consummation of
the transactions contemplated by this Agreement, except for such consents,
approvals, authorizations, registrations or qualifications as may be required
under state securities or Blue Sky laws in connection with the purchase and
distribution of the Preferred Securities by the Underwriters.
(10) To the best of such counsel's knowledge, there are no
contracts or other documents which are required to be described in the Final
Prospectus or filed as exhibits to the Registration Statement by the Securities
Act or by the Rules and Regulations which have not been described or filed as
exhibits to the Registration Statements or incorporated therein by reference as
permitted by the Rules and Regulations.
(11) To the best of such counsel's knowledge, no contracts,
agreements or understandings exist between the Company and any person granting
14
such person the right to require the Company to include any securities of the
Company owned or to be owned by such person in the securities registered
pursuant to the Registration Statement.
(12) To the best of such counsel's knowledge, there is no
pending or threatened legal or governmental proceeding which is required to be
described in the Final Prospectus which is not described as required.
(13) To the best of such counsel's knowledge, the Trust is not
a party to or otherwise bound by any agreement other than those described in the
Final Prospectus.
(14) Neither the Company nor the Trust is required to be
registered as an "investment company" under the Investment Company Act.
(15) The Company is duly registered as a bank holding company
under the BHC Act; and the deposit accounts of the Company's bank subsidiaries
are insured by the FDIC to the fullest extent permitted by law and the rules and
regulations of the FDIC, and to the best knowledge of such, counsel no
proceedings for the termination of such insurance are pending or threatened.
(16) The Company and each of its subsidiaries are in
compliance with all laws administered by and regulations of the Bank Regulatory
Authorities, other than where such failures to comply would not have a material
adverse effect on the Company and its subsidiaries, taken as a whole. Neither
the Company nor any of its Significant Subsidiaries is a party to any written
agreement or memorandum of understanding with, or a party to any commitment
letter or similar undertaking to, or is subject to any order or directive by, or
is a recipient of any extraordinary supervisory letter from, or has adopted any
board resolutions at the request of, any Bank Regulatory Authority which
materially restricts the conduct of its business, or in any manner relates to
its capital adequacy, its credit policies or its management, nor have any of
them been advised by any Bank Regulatory Authority that it is contemplating
issuing or requesting (or is considering the appropriateness of issuing or
requesting) any such order, decree agreement, memorandum of understanding,
extraordinary supervisory letter, commitment letter or similar submission, or
any such board resolutions.
(17) The Registration Statement has become effective under the
Securities Act, and no stop order suspending the effectiveness of the
Registration Statement has been issued and, to the best knowledge of such
counsel, no proceeding for that purpose is pending or threatened by the
Commission.
(18) The Registration Statement, the Final Prospectus, the
documents incorporated by reference in the Final Prospectus and each and any
amendment or supplement to the Registration Statement, the Final Prospectus or
any such incorporated document made by the Company or the Trust on or prior to
the Closing Date (other than the financial statements and related schedules
contained therein, as to which such counsel need express no opinion), comply as
to form in all material respects with the requirements of the Securities Act or
the Exchange Act, as applicable, the Trust Indenture Act and the rules and
regulations of the Commission thereunder, when they became effective or were
filed with the Commission, as the case may be.
15
(19) The statements made in the Final Prospectus under the
captions "The Trusts," "Description of Debt Securities," "Description of the
Trust Preferred Securities," "Description of the Guarantees," "Summary
Information Q&A," "Certain Terms of the Capital Securities," "Certain Terms of
the Junior Subordinated Debentures," "Provident Capital Trust III," and
"Relationship among the Capital Securities, the Junior Subordinated Debentures
and the Guarantee," insofar as they purport to constitute summaries of the terms
of the documents referred to therein, constitute accurate summaries of the terms
of such documents in all material respects.
(20) Upon payment for, and delivery of, the Preferred
Securities to be sold by the Company under this Agreement in accordance with the
terms hereof, the Underwriters will acquire all of the rights of the Company in
the Preferred Securities and will also acquire the interest of the Company in
the Preferred Securities free of any adverse claim (within the meaning of the
Uniform Commercial Code).
In rendering such opinion, such counsel may state that its
opinion is limited to matters governed by the Federal laws of the
United States of America and the laws of the State of Ohio and that (i)
as to matters concerning the Trust given in such opinion, such counsel
relied on special Delaware counsel to the Company and the Trust, (ii)
as to matters governed by New York law, such counsel has relied upon
the opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel to the Underwriters,
delivered pursuant to Section 7(g) and (iii) has relied on a
certificate of ▇▇▇▇ ▇▇▇▇▇, Esq., general counsel to the Company, as to
certain factual matters attached to such opinion. Such counsel shall
also have furnished to the Representatives a written statement,
addressed to the Underwriters and dated the Closing Date, in form and
substance satisfactory to the Representatives, to the effect that (x)
such counsel has acted as counsel to the Company in connection with the
preparation of the Registration Statement, the Final Prospectus and the
documents incorporated by reference therein, and in the course of
preparation of those documents such counsel has participated in
conferences with representatives of the Company and its subsidiaries
(at which conferences the business, affairs and properties of the
Company and its subsidiaries were discussed) and with representatives
of Ernst & Young LLP and (y) based upon such counsel's examination of
the Registration Statement, the Final Prospectus and the documents
incorporated by reference therein, such counsel's investigations made
in connection with the preparation of the Registration Statement, the
Final Prospectus and the documents incorporated by reference therein
and such counsel's participation in the conferences referred to above,
such counsel has no reason to believe that (I) the Registration
Statement, as of its effective date and as of the date of the Annual
Report on Form 10-K of the Company for the fiscal year ended December
31, 1999 (including such Annual Report), contained any untrue statement
of a material fact or omitted to state any material fact required to be
stated therein or necessary to make the statements therein not
misleading, or that the Final Prospectus contains any untrue statement
of a material fact or omits to state any material fact required to be
stated therein or necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading,
or (II) any documents incorporated by reference in the Final
Prospectus, when they were filed with the Commission, contained an
untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they were
made, not misleading.
(e) ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ P.L.L. shall have furnished to the
Company and the Representatives its written opinion, as special United States
federal income tax
16
counsel to the Company and the Trust, addressed to the Company and the
Underwriters and dated the Closing Date to the effect that:
(1) The Trust will be classified as a grantor trust for United
States federal income tax purposes and not as an association taxable as
a corporation;
(2) The Junior Subordinated Debentures will be classified as
indebtedness for United States federal income tax purposes; and
(3) Subject to the qualifications and limitations set forth
therein, the statements set forth in the Final Prospectus under the
caption "United States Federal Income Tax Consequences," insofar as
they purport to constitute summaries of matters of United States
federal tax law and regulations or legal conclusions with respect
thereto, constitute accurate summaries of the matters described therein
in all material respects.
(f) ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A. shall have furnished to the
Representatives its written opinion, as special Delaware counsel to the Company
and the Trust, addressed to the Underwriters and dated the Closing Date, in form
and substance satisfactory to the Representatives, to the effect that:
(1) The Trust has been duly created and is validly existing in
good standing as a business trust under the Delaware Business Trust Act; and all
filings required under the laws of the State of Delaware with respect to the
creation and valid existence of the Trust as a business trust have been made;
and under the Declaration and the Delaware Business Trust Act, the Trust has the
trust power and authority to own property and to conduct its business as
described in the Final Prospectus and to enter into and perform its obligations
under each of this Agreement, the Preferred Securities and the Common
Securities.
(2) The Declaration constitutes a valid and legally binding
obligation of the Company and the Trustees, and is enforceable against the
Company and the Trustees, in accordance with its terms, subject, as to
enforcement, to the effect upon the Declaration of (i) bankruptcy, insolvency,
moratorium, receivership, reorganization, liquidation, fraudulent transfer and
other similar laws relating to the rights and remedies of creditors generally,
(ii) principles of equity, including applicable law relating to fiduciary duties
(regardless of whether considered and applied in a proceeding in equity or at
law), and (iii) the effect of applicable public policy on the enforceability of
provisions relating to indemnification or contribution.
(3) Under the Delaware Business Trust Act and the Declaration,
the Trust has the trust power and authority (i) to execute and deliver and to
perform its obligations under, this Agreement and (ii) to execute and deliver
the Preferred Securities and the Common Securities.
(4) The Common Securities have been duly authorized by the
Declaration and, when issued and delivered by the Trust to the Company in
exchange for the Junior Subordinated Debentures as described in the Final
Prospectus, will be validly issued and (subject to the qualifications set forth
in this paragraph) fully paid undivided beneficial
17
ownership interests in the assets of the Trust (such counsel may note that the
holders of Common Securities will be subject to the withholding provisions of
Section 10.4 of the Declaration, will be required to make payment or provide
indemnity or security as set forth in the Declaration and will be liable for the
debts and obligations of the Trust to the extent provided in Section 9.1 of the
Declaration); under the Delaware Business Trust Act and the Declaration, the
issuance and sale of the Common Securities is not subject to preemptive or other
similar rights.
(5) The Preferred Securities have been duly authorized by the
Declaration and, when issued and delivered in exchange for the Junior
Subordinated Debentures as described in the Final Prospectus, the Preferred
Securities will be duly and validly issued and (subject to the qualifications
set forth in this paragraph) fully paid and nonassessable undivided beneficial
ownership interests in the assets of the Trust; the holders of the Preferred
Securities will be entitled to the benefits of the Declaration and, as
beneficial owners of the Trust, will be entitled to the same limitation of
personal liability extended to stockholders of private corporations for profit
organized under the General Corporation Law of the State of Delaware (such
counsel may note that the Holders of Preferred Securities will be subject to the
withholding provisions of Section 10.4 of the Declaration and will be required
to make payment or provide indemnity or security in connection with taxes or
governmental charges arising from transfers or exchanges of certificates for
Preferred Securities and the issuance of replacement certificates for Preferred
Securities, and to provide security or indemnity in connection with requests of
or directions to the Property Trustee to exercise its rights and powers under
the Declaration, all as set forth in the Declaration).
(6) Under the Delaware Business Trust Act and the Declaration,
all necessary trust action has been taken to duly authorize the execution and
delivery by the Trust of this Agreement and the performance by the Trust of its
obligations thereunder.
(7) Under the Delaware Business Trust Act and the Declaration,
the issuance of the Preferred Securities is not subject to preemptive rights.
(8) The issuance by the Trust of the Preferred Securities and
the Common Securities in exchange for the Junior Subordinated Debentures, the
sale by the Company of the Preferred Securities, the execution, delivery and
performance by the Trust of this Agreement, the consummation by the Trust of the
transactions contemplated by this Agreement, the compliance by the Trust with
its obligations thereunder and the performance by the Company, as sponsor, of
its obligations under the Declaration (A) do not violate (i) any of the
provisions of the Certificate of Trust or the Declaration or (ii) any applicable
Delaware law or administrative regulation and do not require any consent,
approval, license, authorization or validation of, or filing or registration
with, any Delaware legislative, administrative or regulatory body under the laws
or administrative regulations of the State of Delaware (other that as may be
required under the securities or blue sky laws of the state of Delaware, as to
which such counsel need express no opinion) and (B) do not require any consent,
approval, license, authorization or validation of, or filing or registration
with, any Delaware legislative, administrative or regulatory body under the laws
or administrative regulations of the State of Delaware (except that such counsel
need express no opinion with respect to the securities laws of the State of
Delaware).
(9) Assuming that the Trust derives no income from or
connected with services provided within the State of Delaware and has no assets,
activities (other than having a Delaware Trustee as required by the Delaware
Business Trust Act and the filing of documents with the Secretary of State of
the State of Delaware) or employees in the State of Delaware, the holders of the
Preferred Securities (other than those holders of Preferred Securities who
reside or are domiciled in the State of Delaware) will have no liability for
income taxes imposed by the State of Delaware solely as a result of their
participation in the Trust, and the Trust will not be liable for any income tax
imposed by the State of Delaware.
18
(g) The Representatives shall have received from ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ &
▇▇▇▇▇▇▇▇, counsel for the Underwriters, such opinion or opinions, dated the
Closing Date, with respect to the issuance and sale of the Securities, the
Registration Statement, the Final Prospectus and other related matters as the
Representatives may reasonably require, and the Company shall have furnished to
such counsel such documents as they reasonably request for the purpose of
enabling them to pass upon such matters.
(h) At the time of execution of this Agreement, the Representatives
shall have received from Ernst & Young, LLP a letter, in form and substance
satisfactory to the Representatives, addressed to the Underwriters and dated the
date hereof (i) confirming that they are independent public accountants within
the meaning of the Securities Act and are in compliance with the applicable
requirements relating to the qualification of accountants under Rule 2-01 of
Regulation S-X of the Commission, (ii) stating, as of the date hereof (or, with
respect to matters involving changes or developments since the respective dates
as of which specified financial information is given in the Final Prospectus, as
of a date not more than five days prior to the date hereof), the conclusions and
findings of such firm with respect to the financial information and other
matters ordinarily covered by accountants' "comfort letters" to underwriters in
connection with registered public offerings.
(i) With respect to the letter of Ernst & Young, LLP referred to in the
preceding paragraph and delivered to the Representatives concurrently with the
execution of this Agreement (the "initial letter"), the Company shall have
furnished to the Representatives a letter (the "bring-down letter") of such
accountants, addressed to the Underwriters and dated the Closing Date (i)
confirming that they are independent public accountants within the meaning of
the Securities Act and are in compliance with the applicable requirements
relating to the qualification of accountants under Rule 2-01 of Regulation S-X
of the Commission, (ii) stating, as of the date of such bring-down letter (or,
with respect to matters involving changes or developments since the respective
dates as of which specified financial information is given in the Final
Prospectus, as of a date not more than five days prior to the date of the
bring-down letter), the conclusions and findings of such firm with respect to
the financial information and other matters covered by the initial letter and
(iii) confirming in all material respects the conclusions and findings set forth
in the initial letter.
(j) The Company and the Trust shall each have furnished to the
Representatives a certificate, dated the Closing Date, of its Chairman of the
Board, its President or an Executive Vice President and its chief financial
officer stating that:
(A) The representations, warranties and agreements of the
Company and the Trust in Section 1 hereof are true and correct as of
the Closing Date; the Company and the Trust have complied with all
their agreements contained herein and the conditions set forth in
paragraphs (a) and (k) of this Section 7 have been fulfilled, and;
(B) They have carefully examined the Registration Statement
and the Final Prospectus and, in their opinion (i) the Registration
Statement, as of its effective date, and the Final Prospectus, as of
its date and as of the Closing Date, did not include any untrue
statement of a material fact and did not omit to state a material fact
required to be stated therein or necessary to make the statements
therein,
19
in light of the circumstances in which they were made, not misleading,
and (ii) since such dates, no event has occurred which should have been
set forth in a supplement or amendment to the Registration Statement or
the Final Prospectus.
(k) any of its subsidiaries shall have sustained, since the date of the
latest audited financial statements included or incorporated by reference in the
Final Prospectus, any loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by insurance, or from
any labor dispute or court or governmental action, order or decree, otherwise
than as set forth or contemplated in the Final Prospectus and (ii) since such
date there shall not have been any change in the capital stock or long-term debt
of the Company or The Provident Bank or any change, or any development involving
a prospective change, in or affecting the general affairs, management, financial
position, stockholders' equity or results of operations of the Company and its
subsidiaries taken as a whole, otherwise than as set forth or contemplated in
the Final Prospectus, the effect of which, in any such case described in clause
(i) or (ii) of this paragraph, is, in the reasonable judgment of the
Representatives, so material and adverse as to make it impracticable or
inadvisable to proceed with the public offering or the delivery of the
Securities on the terms and in the manner contemplated in the Final Prospectus.
(l) Subsequent to the execution and delivery of this Agreement (i) no
downgrading shall have occurred in the rating accorded the Company's debt
securities or preferred stock by any "nationally recognized statistical rating
organization," as that term is defined by the Commission for purposes of Rule
436(g)(2) of the Rules and Regulations; and (ii) no such organization shall have
publicly announced that it has under surveillance or review, with possible
negative implications, its rating of any of the Company's debt securities or
preferred stock.
(m) Subsequent to the execution and delivery of this Agreement there
shall not have occurred any of the following: (i) trading in securities
generally on the New York Stock Exchange or in the over-the-counter market, or
trading in any securities of the Company on any exchange or in the
over-the-counter market, shall have been suspended or minimum prices shall have
been established on the New York Stock Exchange or such market by the
Commission, by such exchange or by any other regulatory body or governmental
authority having jurisdiction, (ii) a banking moratorium shall have been
declared by Federal or state authorities, (iii) the United States shall have
become engaged in hostilities, there shall have been an escalation in
hostilities involving the United States or there shall have been a declaration
of a national emergency or war by the United States or (iv) there shall have
occurred such a material adverse change in general economic, political or
financial conditions (or the effect of international conditions on the financial
markets in the United States shall be such) as to make it, in the judgment of a
majority in interest of the several Underwriters, impracticable or inadvisable
to proceed with the public offering or delivery of the Securities on the terms
and in the manner contemplated in the Final Prospectus.
(n) The New York Stock Exchange shall have approved the Preferred
Securities for listing, subject only to official notice of issuance and evidence
of satisfactory distribution.
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance reasonably satisfactory
to counsel for the Underwriters.
20
5. Indemnification and Contribution.
(a) The Company and the Trust, jointly and severally, shall indemnify
and hold harmless each Underwriter, its officers and employees and each person,
if any, who controls any Underwriter within the meaning of the Securities Act,
from and against any loss, claim, damage or liability, joint or several, or any
action in respect thereof (including, but not limited to, any loss, claim,
damage, liability or action relating to purchases and sales of the Securities),
to which that Underwriter, officer, employee or controlling person may become
subject, under the Securities Act or otherwise, insofar as such loss, claim,
damage, liability or action arises out of, or is based upon, (i) any untrue
statement or alleged untrue statement of a material fact contained (A) in the
Basic Prospectus, any Interim Prospectus, the Registration Statement or the
Final Prospectus, or in any amendment or supplement thereto, or (B) in any blue
sky application or other document prepared or executed by the Company or the
Trust (or based upon any written information furnished by the Company or the
Trust) specifically for the purpose of qualifying any or all of the Securities
under the securities laws of any state or other jurisdiction (any such
application, document or information being hereinafter called a "Blue Sky
Application"), or (ii) the omission or alleged omission to state in the Basic
Prospectus, any Interim Prospectus, the Registration Statement or the Final
Prospectus, or in any amendment or supplement thereto, or in any Blue Sky
Application any material fact required to be stated therein or necessary to make
the statements therein not misleading or the offering contemplated hereby, and
which is included as part of or referred to in any loss, claim, damage,
liability or action arising out of or based upon matters covered by clause (i)
or (ii) above and shall reimburse each Underwriter and each such officer,
employee or controlling person promptly upon demand for any legal or other
expenses reasonably incurred by that Underwriter officer, employee or
controlling person in connection with investigating or defending or preparing to
defend against any such loss, claim, damage, liability or action as such
expenses are incurred; provided, however, that the Company and the Trust shall
not be liable in any such case to the extent that any such loss, claim, damage,
liability or action arises out of, or is based upon, any untrue statement or
alleged untrue statement or omission or alleged omission made in the Basic
Prospectus, any Interim Prospectus, the Registration Statement or the Final
Prospectus, or in any such amendment or supplement, or in any Blue Sky
Application in reliance upon and in conformity with written information
concerning such Underwriter furnished to the Company through the Representatives
by or on behalf of such Underwriter specifically for inclusion therein which
information consists solely of the information specified in Section 8(e) hereof.
The foregoing indemnity agreement is in addition to any liability which the
Company or the Trust may otherwise have to any Underwriter or to any officer,
employee or controlling person of that Underwriter.
(b) Each Underwriter, severally and not jointly, shall indemnify and
hold harmless the Company and the Trust, their officers and employees, each of
their directors and each person, if any, who controls the Company within the
meaning of the Securities Act, from and against any loss, claim, damage or
liability, joint or several, or any action in respect thereof, to which the
Company or the Trust or any such director, officer or controlling person may
become
21
subject, under the Securities Act or otherwise, insofar as such loss, claim,
damage, liability or action arises out of, or is based upon, (i) any untrue
statement or alleged untrue statement of a material fact contained (A) in the
Basic Prospectus, any Interim Prospectus, the Registration Statement or the
Final Prospectus, or in any amendment or supplement thereto, or (B) in any Blue
Sky Application or (ii) the omission or alleged omission to state in the Basic
Prospectus, any Interim Prospectus, the Registration Statement or the Final
Prospectus, or in any amendment or supplement thereto, or in any Blue Sky
Application any material fact required to be stated therein or necessary to make
the statements therein not misleading, but in each case only to the extent that
the untrue statement or alleged untrue statement or omission or alleged omission
was made in reliance upon and in conformity with written information concerning
such Underwriter furnished to the Company and the Trust through the
Representatives by or on behalf of that Underwriter specifically for inclusion
therein, and shall reimburse the Company and the Trust and any such director,
officer or controlling person for any legal or other expenses reasonably
incurred by the Company or the Trust or any such director, officer or
controlling person in connection with investigating or defending or preparing to
defend against any such loss, claim, damage, liability or action as such
expenses are incurred. The foregoing indemnity agreement is in addition to any
liability which any Underwriter may otherwise have to the Company and the Trust
or any such director, officer, employee or controlling person.
(c) Promptly after receipt by an indemnified party under this Section 8
of notice of any claim or the commencement of any action, the indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party under this Section 8, notify the indemnifying party in writing of the
claim or the commencement of that action; provided, however, that the failure to
notify the indemnifying party shall not relieve it from any liability which it
may have under this Section 8 except to the extent it has been materially
prejudiced by such failure and, provided further, that the failure to notify the
indemnifying party shall not relieve it from any liability which it may have to
an indemnified party otherwise than under this Section 8. If any such claim or
action shall be brought against an indemnified party, and it shall notify the
indemnifying party thereof, the indemnifying party shall be entitled to
participate therein and, to the extent that it wishes, jointly with any other
similarly notified indemnifying party, to assume the defense thereof with
counsel satisfactory to the indemnified party. After notice from the
indemnifying party to the indemnified party of its election to assume the
defense of such claim or action, the indemnifying party shall not be liable to
the indemnified party under this Section 8 for any legal or other expenses
subsequently incurred by the indemnified party in connection with the defense
thereof other than reasonable costs of investigation; provided, however, that
the Representatives shall have the right to employ counsel to represent jointly
the Representatives and those other Underwriters and their respective officers,
employees and controlling persons who may be subject to liability arising out of
any claim in respect of which indemnity may be sought by the Underwriters
against the Company under this Section 8 if, in the reasonable judgement of the
Representatives, it is advisable for the Representatives and those Underwriters,
officers, employees and controlling persons to be jointly represented by
separate counsel, and in that event the fees and expenses of such separate
counsel shall be paid by the Company. Each indemnified party, as a condition of
the indemnity agreements contained in Sections 8(a) and 8(b), shall use its best
efforts to cooperate with the indemnifying party in the defense of any such
action or claim. No indemnifying party shall (i) without the prior written
22
consent of the indemnified parties (which consent shall not be unreasonably
withheld), settle or compromise or consent to the entry of any judgment with
respect to any pending or threatened claim, action, suit or proceeding in
respect of which indemnification or contribution may be sought hereunder
(whether or not the indemnified parties are actual or potential parties to such
claim or action) unless such settlement, compromise or consent includes an
unconditional release of each indemnified party from all liability arising out
of such claim, action, suit or proceeding, or (ii) be liable for any settlement
of any such action effected without its written consent (which consent shall not
be unreasonably withheld), but if settled with the written consent of the
indemnifying party or if there be a final judgment of the plaintiff in any such
action, the indemnifying party agrees to indemnify and hold harmless any
indemnified party from and against any loss or liability by reason of such
settlement or judgment.
(d) If the indemnification provided for in this Section 8 shall for any
reason be unavailable to or insufficient to hold harmless an indemnified party
under Section 8(a) or 8(b) in respect of any loss, claim, damage or liability,
or any action in respect thereof, referred to therein, then each indemnifying
party shall, in lieu of indemnifying such indemnified party, contribute to the
amount paid or payable by such indemnified party as a result of such loss,
claim, damage or liability, or action in respect thereof, (i) in such proportion
as shall be appropriate to reflect the relative benefits received by the Company
and the Trust on the one hand and the Underwriters on the other from the
offering of the Securities or (ii) if the allocation provided by clause (i)
above is not permitted by applicable law, in such proportion as is appropriate
to reflect not only the relative benefits referred to in clause (i) above but
also the relative fault of the Company and the Trust on the one hand and the
Underwriters on the other with respect to the statements or omissions which
resulted in such loss, claim, damage or liability, or action in respect thereof,
as well as any other relevant equitable considerations. The relative benefits
received by the Company and the Trust on the one hand and the Underwriters on
the other with respect to such offering shall be deemed to be in the same
proportion as the total net proceeds from the offering of the Securities
purchased under this Agreement (before deducting expenses) received by the
Company and the Trust, on the one hand, and the total underwriting discounts and
commissions received by the Underwriters with respect to the shares of the
Securities purchased under this Agreement, on the other hand, bear to the total
gross proceeds from the offering of the shares of the Securities under this
Agreement, in each case as set forth in the table on the cover page of the Final
Prospectus. The relative fault shall be determined by reference to whether the
untrue or alleged untrue statement of a material fact or omission or alleged
omission to state a material fact relates to information supplied by the Company
and the Trust or the Underwriters the intent of the parties and their relative
knowledge, access to information and opportunity to correct or prevent such
statement or omission. For purposes of the preceding two sentences, the net
proceeds deemed to be received by the Company shall be deemed to be also for the
benefit of the Trust and information supplied by the Company shall also be
deemed to have been supplied by the Trust. The Company, the Trust and the
Underwriters agree that it would not be just and equitable if contributions
pursuant to this Section 8(d) were to be determined by pro rata allocation (even
if the Underwriters were treated as one entity for such purpose) or by any other
23
method of allocation which does not take into account the equitable
considerations referred to herein. The amount paid or payable by an indemnified
party as a result of the loss, claim, damage or liability, or action in respect
thereof, referred to above in this Section 8(d) shall be deemed to include, for
purposes of this Section 8(d), any legal or other expenses reasonably incurred
by such indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this Section 8(d), no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Securities underwritten by it and
distributed to the public was offered to the public exceeds the amount of any
damages which such Underwriter has otherwise paid or become liable to pay by
reason of any untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The
Underwriters' obligations to contribute as provided in this Section 8(d) are
several in proportion to their respective underwriting obligations and not
joint.
(e) The Underwriters severally confirm and the Company and the Trust
acknowledge that the statements with respect to the public offering of the
Securities by the Underwriters set forth on the cover page of and the concession
and reallowance figures and the information in the first paragraph appearing
under the caption "Underwriting--Commission and Discounts," and the textual
paragraphs appearing under the caption "Underwriting -- Confirmation to
Discretionary Accounts" and " -- Price Stabilization and Short Positions" in the
Final Prospectus constitute the only information concerning such Underwriters
furnished in writing to the Company by or on behalf of the Underwriters
specifically for inclusion in the Registration Statement and the Final
Prospectus.
6. Defaulting Underwriters. If, on the Closing Date, any Underwriter defaults in
the performance of its obligations under this Agreement, the remaining
non-defaulting Underwriters shall be obligated to purchase the Securities which
the defaulting Underwriter agreed but failed to purchase on the Closing Date in
the respective proportions which the aggregate liquidation amount of Preferred
Securities set opposite the name of each remaining non-defaulting Underwriter in
Schedule 1 hereto bears to the total aggregate liquidation amount of Preferred
Securities set opposite the names of all the remaining non-defaulting
Underwriters in Schedule 1 hereto; provided, however, that the remaining
non-defaulting Underwriters shall not be obligated to purchase any of the
Securities on the Closing Date if the total Securities which the defaulting
Underwriter or Underwriters agreed but failed to purchase on such date exceeds
9.09% of the total Securities to be purchased on the Closing Date, and 15 any
remaining non-defaulting Underwriter shall not be obligated to purchase more
than 110% of the Securities which it agreed to purchase on the Closing Date
pursuant to the terms of Section . If the foregoing maximums are exceeded, the
remaining non-defaulting Underwriters, or those other underwriters satisfactory
to the Representatives who so agree, shall have the right, but shall not be
obligated, to purchase, in such proportion as may be agreed upon among them, all
the Securities to be purchased on the Closing Date. If the remaining
Underwriters or other underwriters satisfactory to the Representatives do not
elect to purchase the Securities which the defaulting Underwriter or
Underwriters agreed but failed to purchase on the Closing Date, this Agreement
shall terminate without liability on the part of any non-defaulting Underwriter
or the Company and the Trust, except that the Company and the Trust will
continue to be liable for the payment of expenses to the extent set forth in
Sections and hereof. As used in this Agreement, the term "Underwriter" includes,
for all purposes of this Agreement unless the context requires otherwise, any
party not listed in Schedule 1 hereto who, pursuant to this Section , purchases
the Securities which a defaulting Underwriter agreed but failed to purchase.
24
Nothing contained herein shall relieve a defaulting Underwriter of any
liability it may have to the Company or the Trust for damages caused by its
default. If other underwriters are obligated or agree to purchase the Securities
of a defaulting or withdrawing Underwriter, either the Representatives, the
Company or the Trust may postpone the Closing Date for up to seven full business
days in order to effect any changes that in the opinion of counsel for the
Company or counsel for the Underwriters may be necessary in the Registration
Statement, the Final Prospectus or in any other document or arrangement.
7. Termination. The obligations of the Underwriters hereunder may be terminated
by the Representatives by notice given to and received by the Company and the
Trust prior to delivery of and payment for the Preferred Securities if, prior to
that time, any of the events described in Sections 7(k), 7(l) or 7(m) shall have
occurred or if the Underwriters shall decline to purchase the Securities for any
reason permitted under this Agreement.
8. Reimbursement of Underwriters' Expenses. If (a) the Trust shall fail to
tender the Securities for delivery to the Underwriters for any reason or (b) the
Underwriters shall decline to purchase the Securities for any reason permitted
by this Agreement, the Company and the Trust shall reimburse the Underwriters
for all out-of-pocket expenses (including fees and disbursements of counsel)
incurred by the Underwriters in connection with this Agreement and the proposed
purchase of the Securities, and upon demand the Company and the Trust shall pay
the full amount thereof to the Representatives. If this Agreement is terminated
pursuant to Section 9 by reason of the default of one or more Underwriters,
neither the Company nor the Trust shall be obligated to reimburse any defaulting
Underwriter on account of those expenses.
9. Notices, etc. All statements, requests, notices and agreements hereunder
shall be in writing, and:
(a) if to the Underwriters, shall be delivered or sent by mail, telex
or facsimile transmission to ▇▇▇▇▇▇ Brothers Inc., ▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Debt Capital Markets (FIG Group)
(Fax:▇▇▇-▇▇▇-▇▇▇▇);
(b) if to the Company or to the Trust, shall be delivered or sent by
mail, telex or facsimile transmission to the address of the Company set forth in
the Registration Statement, Attention: General Counsel (Fax: ▇▇▇-▇▇▇-▇▇▇▇);
All notices to an Underwriter pursuant to Section shall be delivered or
sent by mail, telex or facsimile transmission to such Underwriter at
its address set forth in its acceptance telex to the Representatives,
which address will be supplied to any other party hereto by the
Representatives upon request. Any such statements, requests, notices or
agreements shall take effect at the time of receipt thereof. The
Company and the Trust shall be entitled to act and rely upon any
request, consent, notice or agreement given or made on behalf of the
Underwriters by ▇▇▇▇▇▇ Brothers Inc.
10. Persons Entitled to Benefit of Agreement. This Agreement shall inure to the
benefit of and be binding upon the Underwriters, the Company and the Trust and
their respective successors. This Agreement and the terms and provisions hereof
are for the sole benefit of only those persons, except that (a) the
representations, warranties, indemnities and agreements of the Company and the
Trust contained in this Agreement shall also be deemed to
25
be for the benefit of the person or persons, if any, who control any Underwriter
within the meaning of Section 15 of the Securities Act and (b) the indemnity
agreement of the Underwriters contained in Section 8(b) of this Agreement shall
be deemed to be for the benefit of directors of the Company, officers of the
Company who have signed the Registration Statement and any person controlling
the Company within the meaning of Section 15 of the Securities Act. Nothing in
this Agreement is intended or shall be construed to give any person, other than
the persons referred to in this Section 13, any legal or equitable right, remedy
or claim under or in respect of this Agreement or any provision contained
herein.
11. Survival. The respective indemnities, representations, warranties and
agreements of the Company and the Trust and the Underwriters contained in this
Agreement or made by or on behalf of them, respectively, pursuant to this
Agreement, shall survive the delivery of and payment for the Securities and
shall remain in full force and effect, regardless of any investigation made by
or on behalf of any of them or any person controlling any of them.
12. Definition of the Terms "Business Day" and "Subsidiary". For purposes of
this Agreement, (a) "business day" means each Monday, Tuesday, Wednesday,
Thursday or Friday which is not a day on which banking institutions in New York
are generally authorized or obligated by law or executive order to close and (b)
"subsidiary" has the meaning set forth in Rule 405 of the Rules and Regulations.
13. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF NEW YORK.
14. Counterparts. This Agreement may be executed in one or more counterparts
and, if executed in more than one counterpart, the executed counterparts shall
each be deemed to be an original but all such counterparts shall together
constitute one and the same instrument.
15. Headings. The headings herein are inserted for convenience of reference only
and are not intended to be part of, or to affect the meaning or interpretation
of, this Agreement.
[The remainder of page intentionally left blank; the signature page follows.]
26
If the foregoing correctly sets forth the agreement among the
Company and the Trust and the Underwriters, please indicate your acceptance in
the space provided for that purpose below.
Very truly yours,
PROVIDENT FINANCIAL GROUP, INC.
By:
-------------------------------
Name:
Title:
PROVIDENT CAPITAL TRUST III
By: Provident Financial Group, Inc., as Sponsor
By:
-------------------------------
Name:
Title:
Accepted:
▇▇▇▇▇▇ BROTHERS INC.
▇.▇. ▇▇▇▇▇▇▇ & SONS, INC.
PRUDENTIAL SECURITIES INCORPORATED
MCDONALD INVESTMENTS INC.
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
▇▇▇▇▇▇▇▇ INC.
For themselves and as Representatives
of the several Underwriters named
in Schedule 1 hereto
By ▇▇▇▇▇▇ BROTHERS INC.
By:
-------------------------------
Authorized Representative
27
SCHEDULE 1
PROVIDENT CAPITAL TRUST III
$12,500,000 10 1/4% TRUST
PREFERRED SECURITIES DUE 2030 LIQUIDATION AMOUNT
--------------------------------------------------------------------------------
▇▇▇▇▇▇ Brothers Inc. $ 2,578,125
▇.▇. ▇▇▇▇▇▇▇ & Sons, Inc. 2,546,875
Prudential Securities Incorporated 2,546,875
McDonald Investments Inc. 859,375
▇.▇. ▇▇▇▇▇▇ Securities Inc. 859,375
▇▇▇▇▇▇▇▇ Inc. 859,375
ABN AMRO Incorporated $ 156,250
Bear, ▇▇▇▇▇▇▇ & Co. Inc. 156,250
▇▇▇▇ ▇▇▇▇▇▇▇▇ Incorporated 156,250
Deutsche Bank Securities Inc. 156,250
First Union Securities, Inc. 156,250
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, Inc. 156,250
U.S. Bancorp ▇▇▇▇▇ ▇▇▇▇▇▇▇ Inc. 156,250
Wachovia Securities, Inc. 156,250
Advest, Inc. $ 62,500
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ & Co. Incorporated 62,500
BB&T Capital Markets, a Division of ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇▇▇ 62,500
▇▇▇▇▇▇▇▇▇ & Co. LLC 62,500
▇▇▇▇▇▇▇▇▇▇ & Co. Inc. 62,500
Gibraltar Securities 62,500
Gruntal & Co., L.L.C 62,500
J.J.B. ▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇, Inc. 62,500
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ LLC 62,500
▇▇ ▇▇▇▇▇▇▇ Securities, Inc. 62,500
Mesirow Financial, Inc. 62,500
▇▇▇▇▇▇ ▇▇▇▇▇▇ & Company, Inc. 62,500
▇▇▇▇▇▇/Hunter Incorporated 62,500
The ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇ Company, LLC 62,500
TD Securities (USA) Inc. 62,500
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Incorporated 62,500
--------------------------------------------------------------------------------
TOTAL $12,500,000