$125,000,000
PROVIDENT CAPITAL TRUST II
8 3/4% Preferred Securities
as fully and unconditionally guaranteed by
PROVIDENT FINANCIAL GROUP, INC.
UNDERWRITING AGREEMENT
----------------------
June 23, 1999
To the Underwriters named
in Schedule 1 hereto
Dear Sirs:
Provident Capital Trust II, a statutory business trust formed under
the Business Trust Act of the State of Delaware (the "Trust") and Provident
Financial Group, Inc., an Ohio corporation (the "Company"), propose to issue and
sell an aggregate of $125 million liquidation amount of 8 3/4% Preferred
Securities, liquidation amount $25 per Preferred Security (the "Preferred
Securities") of 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") to be entered into by and between the Company and The
Chase Manhattan Bank, as guarantee trustee (the "Guarantee Trustee"), the form
of which has been filed as an exhibit to the Registration Statement (as defined
below). 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. Concurrently with the issuance of the Preferred
Securities and the Company's purchase of all of the Common Securities, the Trust
will invest the proceeds of each thereof in 8 3/4% Junior Subordinated
Debentures due 2029 (the "Junior Subordinated Debentures") issued by the
Company. The Junior Subordinated Debentures are to be issued pursuant to an
Indenture (the "Indenture") to be entered into between the Company and The Chase
Manhattan Bank, as indenture trustee (the "Indenture Trustee"), the form of
which has been filed as an exhibit to the Registration Statement. 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 Prospectus.
1. Representations, Warranties and Agreements of the Company and the
Trust. The Company and the Trust, jointly and severally, represent, warrant and
agree that:
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(a) A registration statement on Form S-3, and any amendments thereto,
with respect to the Securities have (i) been prepared by the Company and
the Trust in conformity with the requirements of the Securities Act of
1933, as amended (the "Securities Act"), and the rules and regulations
(the "Rules and Regulations") of the Securities and Exchange Commission
(the "Commission") thereunder, (ii) been filed with the Commission under
the Securities Act; and (iii) become effective under the Securities Act;
and the Indenture, the Declaration (as hereinafter defined) and the
Guarantee Agreement have been qualified under the Trust Indenture Act of
1939, as amended (the "Trust Indenture Act"). Copies of the registration
statement and any amendments to such registration statement have been
delivered by the Company and the Trust to you as the representatives (the
"Representatives") of the Underwriters. As used in this Agreement,
"Effective Time" means the date and the time as of which the registration
statement was declared effective by the Commission; "Effective Date" means
the date of the Effective Time; "Preliminary Prospectus" means each
prospectus included in such registration statement, or amendments thereof,
before it became effective under the Securities Act and any prospectus
filed with the Commission by the Company and the Trust with the consent of
the Representatives pursuant to Rule 424(a) of the Rules and Regulations;
the "Registration Statement" means such registration statement, as amended
at its Effective Time, including any documents incorporated by reference
therein at such time; and "Prospectus" means such final prospectus, as
first filed with the Commission pursuant to paragraph (1) or (4) of Rule
424(b) of the Rules and Regulations. Reference made herein to any
Preliminary Prospectus or to the Prospectus shall be deemed to refer to and
include any documents incorporated by reference therein pursuant to Item 12
of Form S-3 under the Securities Act, as of the date of such Preliminary
Prospectus or the Prospectus, as the case may be, and any reference to any
amendment or supplement to any Preliminary Prospectus or the Prospectus
shall be deemed to refer to and include any document filed under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), after the
date of such Preliminary Prospectus or the Prospectus, as the case may be,
and incorporated by reference in such Preliminary Prospectus or the
Prospectus, as the case may be; and any reference to any amendment to the
Registration Statement shall be deemed to include any annual report of the
Company filed with the Commission pursuant to Section 13(a) or 15(d) of the
Exchange Act after the Effective Time that is incorporated by reference in
the Registration Statement. The Commission has not issued any order
preventing or suspending the use of any Preliminary Prospectus.
(b) The Registration Statement conforms and the Prospectus and any
further amendments or supplements to the Registration Statement or the
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 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 Prospectus
in reliance upon and in conformity with written
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information furnished to the Company and the Trust through the
Representatives by or on behalf of any Underwriter specifically for
inclusion therein; the Indenture, the Declaration and the Guarantee
Agreement conform in all material respects to the requirements of the Trust
Indenture Act and the applicable rules and regulations thereunder.
(c) The documents incorporated by reference in the 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 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
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
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.
(S)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 Prospectus; the Trust has conducted and will conduct no business
other than the transactions contemplated by this Agreement as described in
the 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, when executed, the
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Amended and Restated Declaration of Trust (the "Declaration") among the
Company, The Chase Manhattan Bank, as property trustee (the "Property
Trustee"), Chase Manhattan Bank Delaware, 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 interests in the assets of the Trust, and the
agreements and instruments contemplated by the Declaration and described in
the 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 in the 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 by the Company and, when
duly executed and delivered by the Company, as Sponsor, and the Regular
Trustees, assuming due authorization, execution and delivery of the
Declaration by the Property Trustee and the Delaware Trustee, will be a
valid and binding obligation of the Company, enforceable against the
Company 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 Prospectus. Each of the Regular Trustees is an
employee of the Company, The Provident Bank, Information Leasing
Corporation and/or Provident Commercial Group, Inc. and has been duly
authorized by the Company, The Provident Bank, Information Leasing
Corporation and/or Provident Commercial Group, Inc., as applicable, 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 against payment
therefor as provided herein, 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 Prospectus.
(i) The Indenture has been duly authorized, and when duly executed by
the proper officers of the Company, assuming due execution and delivery by
the Indenture Trustee, and delivered by the Company, will constitute a
valid and 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; 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 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
5
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 Prospectus.
(j) The Guarantee Agreement has been duly authorized and, when duly
executed and delivered by the proper officers of the Company, assuming due
execution and delivery by the Guarantee Trustee, will constitute 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 Agreement, when executed and delivered, will conform in all
material respects to the description thereof contained in the Prospectus.
(k) This Agreement 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 and the Junior
Subordinated Debentures by the Company and the Trust, as applicable, and
the consummation of the 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 the registration of the Securities
under the Securities Act and such consents, approvals, authorizations,
registrations or qualifications 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 or the
consummation of the transactions contemplated herein and therein, including
the issuance of the Common Securities and the Preferred Securities by the
Trust and the purchase of the Junior Subordinated Debentures by the Trust
from the Company.
6
(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 Prospectus, any material loss or
interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor dispute or
court or governmental action, order or decree, otherwise than as set forth
or contemplated in the Prospectus; and, since 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 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 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
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 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 Prospectus or is
incorporated by reference therein and who have delivered the initial letter
referred to in Section 7(g) 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.
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(s) There are no contracts or other documents which are required to
be described in the 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 Prospectus or filed as exhibits to the
Registration Statement or incorporated therein by reference as permitted by
the Rules and Regulations.
(t) Neither the Company nor any of its subsidiaries (i) is in
violation of its charter or by-laws, (ii) 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 (iii) 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.
(u) 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.
(v) Except as set forth or contemplated in the 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.
(w) 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,
8
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.
(x) The Company is duly registered as a bank holding company under
the Bank Holding Company Act of 1956, as amended (the "BHC Act").
(y) 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.
(z) 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
understanding, extraordinary supervisory letter, commitment letter or
similar submission or any such board resolutions.
2. Purchase of the Preferred Securities by the Underwriters. (a)
The Trust and the Company hereby agree 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 Trust, 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.
(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
9
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 Prospectus.
4. Delivery of and Payment. (a) Delivery by the Trust 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 on
behalf of the Trust, shall take place at the office specified in Schedule 1
hereto and on the date and at the 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.
5. Further Agreements of the Company and the Trust. The Company and
the Trust, jointly and severally, each agrees:
(a) To prepare the 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 Prospectus or any amended 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 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
Preliminary Prospectus or the
10
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 Prospectus or for additional
information; and, in the event of the issuance of any stop order or of
any order preventing or suspending the use of any Preliminary
Prospectus or the Prospectus or suspending the use of any Preliminary
Prospectus or the 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;
(c) To deliver promptly to the Representatives such number of
the following documents as the Representatives shall reasonably
request: (i) 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), (ii) each Preliminary Prospectus,
the Prospectus (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 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 the
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
Prospectus as then amended or supplemented would include an untrue
statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made when such Prospectus is
delivered, not misleading, or, if for any other reason it shall be
necessary during such same period to amend or supplement the
Prospectus or to file under the Exchange Act any document incorporated
by reference in the 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 Prospectus which will correct such
statement or omission or effect such compliance;
(d) To file promptly with the Commission any amendment to the
Registration Statement or the Prospectus or any supplement to the
Prospectus that may, in the judgment of the Company or the
Representatives, be required by the Securities Act or requested by the
Commission;
11
(e) Prior to filing with the Commission any amendment to the
Registration Statement or supplement to the Prospectus, any document
incorporated by reference in the Prospectus or any 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;
(f) As soon as practicable after the Effective Date, to make
generally available to the Company's security holders and to deliver
to the Representatives 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);
(g) For a period of five years following the Effective 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;
(h) 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;
(i) For a period of 30 days from the date of the 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 sale of the Common
Securities to the Company and the sale of the Preferred Securities to
the Underwriters, as contemplated by this Agreement and the
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;
12
(j) Prior to the Effective 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 only to official notice of
issuance and evidence of satisfactory distribution, prior to the Closing
Date;
(k) To apply the net proceeds from the sale of the Securities as set
forth in the Prospectus; and
(l) 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.
6. Expenses. The Company and the Trust agree to pay (a) the costs
incident to the authorization, issuance, sale and delivery of the Securities and
any taxes payable in that connection; (b) the costs incident to the preparation,
printing and filing under the Securities Act of the Registration Statement, the
Preliminary Prospectus, the Prospectus and any amendments and exhibits thereto;
(c) 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), any Preliminary Prospectus, the Prospectus and any
amendment or supplement to the Prospectus or any document incorporated by
reference therein, all as provided in this Agreement; (d) 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; (e) any
applicable listing or other fees; (f) the fees and expenses of qualifying the
Securities under the securities laws of the several jurisdictions as provided in
Section 5(h) hereof and of preparing, printing and distributing a Blue Sky
Memorandum (including related fees and expenses of counsel to the Underwriters);
(g) any fees charged by securities rating services for rating the Securities;
(h) the fees and expenses of the Property Trustee, the Guarantee Trustee and the
Indenture Trustee; and (i) 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 6 and in Section 11
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.
7. 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 Prospectus shall have been timely filed with the Commission
in accordance with Section 5(a) 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
13
information in the Registration Statement or the 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
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.
(c) All corporate proceedings and 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 and the 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) ▇▇▇▇ ▇▇▇▇▇, Esq. shall have furnished to the Representatives his
written opinion, as general 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 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 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
14
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 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.
(5) The Guarantee Agreement has been duly authorized, executed
and delivered by the Company 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.
(7) The execution, delivery and performance of this Agreement,
the Declaration, the Indenture, the Junior Subordinated Debentures 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.
15
(8) All of the outstanding shares of capital stock of each
Significant Subsidiary (as such term is defined in Rule 12b-2 of the
Commission under the Exchange Act) have been duly authorized and
validly issued and are fully paid and non-assessable; except as
disclosed in the 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 and sale by the Trust of the Preferred
Securities, the issuance by the Company of the Junior Subordinated
Debentures, the issuance and sale of the Guarantee by the Company and
the compliance by the Company and Trust with all of the provisions of
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 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
Prospectus or filed as exhibits to the Registration Statements 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 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 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 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,
16
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) No stop order suspending the effectiveness of the
Registration Statement has been issued and, to the knowledge of such
counsel, no proceeding for that purpose is pending or threatened by
the Commission.
(18) The documents incorporated by reference in the Prospectus
and any further amendment or supplement to any such incorporated
document made by the Company or the Trust prior to the Closing Date
(other than the financial statements and related schedules contained
therein, as to which such counsel need express no opinion), complied
as to form in all material respects with the requirements of the
Securities Act or the Exchange Act, as applicable, when they became
effective or were filed with the Commission, as the case may be, and
the rules and regulations of the Commission thereunder.
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, and (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). 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, and (y) based on the foregoing, no facts have come to the
attention of such counsel which lead it to believe that
17
(I) the Registration Statement, as of the Effective Date, 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 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 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) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ shall have furnished to the
Company and the Representatives its written opinion, as special United
States federal income tax 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; and
(2) Subject to the qualifications and limitations set
forth therein, the statements set forth in the 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 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 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
18
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 against payment therefor as described in the Prospectus,
will be validly issued and (subject to the qualifications set
forth in this paragraph) fully paid undivided beneficial
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 against payment of
the consideration as set forth in the Underwriting Agreement, 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 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).
19
(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 and sale by the Trust of the Preferred
Securities and the Common Securities, the purchase by the Trust
of the Junior Subordinated Debentures, 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.
(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 Prospectus and other
related matters as the Representatives may reasonably require, and the
Company shall have furnished to such counsel such
20
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 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 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 shall 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 Prospectus and, in their opinion (i) the Registration
Statement, as of the Effective Date, and the Prospectus, as of
each of the Effective Dates, did not
21
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, in light of the
circumstances in which they were made, not misleading, and (ii)
since the Effective Date, no event has occurred which should have
been set forth in a supplement or amendment to the Registration
Statement or the Prospectus.
(k) (i) Neither the Company nor any of its subsidiaries shall
have sustained, since the date of the latest audited financial
statements included or incorporated by reference in the Prospectus,
any loss or interference with its business from fire, explosion, flood
or other calamity, whether or not covered by insurance, or from any
labor dispute or court or governmental action, order or decree,
otherwise than as set forth or contemplated in the Prospectus and (ii)
since such date there shall not have been any change in the capital
stock or long-term debt of the Company, The Provident Bank,
Information Leasing Corporation or Provident Commercial Group, Inc.
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 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 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
22
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 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.
8. 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 any Preliminary
Prospectus, the Registration Statement or the 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 any Preliminary Prospectus, the
Registration Statement or the 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 any Preliminary
23
Prospectus, the Registration Statement or the 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 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 any Preliminary Prospectus, the Registration
Statement or the 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 any Preliminary Prospectus, the Registration Statement or the
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
24
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 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
25
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 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 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 textual
26
paragraphs appearing under the caption "Underwriting" in the 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 Prospectus.
9. 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 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 2. 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 6 and 11 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 9, purchases the Securities which a defaulting Underwriter agreed but
failed to purchase.
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 Prospectus or in any other document or arrangement.
10. 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.
27
11. 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.
12. 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: Corporate Trust Department
(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: 513-
▇▇▇-▇▇▇▇);
All notices to an Underwriter pursuant to Section 8(c) 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.
13. 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 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.
28
14. Survival. The respective indemnities, representations, 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.
15. 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.
16. Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of New York.
17. 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.
18. 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.]
29
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: /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Executive Vice President
PROVIDENT CAPITAL TRUST II
By: Provident Financial Group, Inc., as
Sponsor
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Regular Trustee
Accepted:
▇▇▇▇▇▇ BROTHERS INC.
For themselves and as Representatives
of the several Underwriters named
in Schedule 1 hereto
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇
Authorized Representative
SCHEDULE I
Provident Capital Trust II # of
$125,000,000 8 3/4% SKIS due 2029 Shares
--------------------------------- -------
▇▇▇▇▇▇ Brothers Inc.................................................. 798,750
Prudential Securities Incorporated................................... 798,750
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc. ........................................... 798,750
PaineWebber Incorporated............................................. 798,750
▇.▇. ▇▇▇▇▇▇ Securities Inc. ......................................... 125,000
ABN AMRO Incorporated................................................ 70,000
Banc of America Securities LLC....................................... 70,000
Bear, ▇▇▇▇▇▇▇ & Co. Inc. ............................................ 70,000
CIBC World Markets Corp.............................................. 70,000
▇▇▇▇ ▇▇▇▇▇▇▇▇ Incorporated........................................... 70,000
Deutsche Bank Securities Inc. ....................................... 70,000
▇.▇. ▇▇▇▇▇▇▇ & Sons, Inc. ........................................... 70,000
Everen Securities, Inc. ............................................. 70,000
First Security ▇▇▇ ▇▇▇▇▇▇............................................ 70,000
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.................................................. 70,000
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, Incorporated................................. 70,000
McDonald Investments Inc., a KeyCorp Company......................... 70,000
▇▇ ▇▇▇▇▇ Securities Corporation...................................... 70,000
Advest, Inc. ........................................................ 35,000
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ & Co. Incorporated................................... 35,000
BB&T Capital Markets, a Division of ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇▇▇............. 35,000
▇.▇. ▇▇▇▇▇▇▇▇ & Co................................................... 35,000
▇▇▇▇▇▇▇▇▇ & Company LLC.............................................. 35,000
▇▇▇▇▇▇▇▇▇▇ & Co. Inc. ............................................... 35,000
First Albany Corporation............................................. 35,000
First Union Capital Markets Corp..................................... 35,000
JWGenesis Securities, Inc. .......................................... 35,000
Gibraltar Securities Co.............................................. 35,000
Gruntal & Co., L.L.C................................................. 35,000
J.J.B. ▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇, Inc. ................................... 35,000
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Inc. ........................................ 35,000
Mesirow Financial, Inc. ............................................. 35,000
▇▇▇▇▇▇ ▇▇▇▇▇▇ & Company, Inc. ....................................... 35,000
▇▇▇▇▇▇/Hunter Incorporated........................................... 35,000
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Associates, Inc. .................................... 35,000
The ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇ Company, LLC................................... 35,000
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Gull........................................... 35,000
U.S. Bancorp ▇▇▇▇▇ ▇▇▇▇▇▇▇ Inc. ..................................... 35,000
Wachovia Securities, Inc. ........................................... 35,000
The ▇▇▇▇▇▇▇▇ Capital Group, L.P...................................... 35,000
----------
Total............................................................. $5,000,000
==========