COMMERCE HARRISBURG CAPITAL TRUST III PENNSYLVANIA COMMERCE BANCORP, INC.
EXHIBIT
10.1
$15,000,000
COMMERCE
HARRISBURG CAPITAL TRUST III
PENNSYLVANIA
COMMERCE BANCORP, INC.
7.75%
Capital Securities
(Liquidation
Amount $100,000 per Capital Security)
September
29, 2006
COMMERCE
BANK, N.A.
Commerce
Atrium
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▇▇▇▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Ladies
and Gentlemen:
Commerce
Harrisburg Capital Trust III (the “Trust”), a statutory trust organized under
the Statutory Trust Act (the “Delaware Act”) of the State of Delaware (Chapter
38, Title 12, of the Delaware Code. 12 Del. C. Section 3801 et seq), and
Pennsylvania Commerce Bancorp, Inc., a Pennsylvania corporation (the “Company”),
as depositor of the Trust and as guarantor, hereby confirms its agreement with
you as follows:
Section
1 Introduction.
The
Company agrees, upon the terms and conditions set forth in this Purchase
Agreement (this “Agreement”), to issue and sell to you (the “Purchaser”), an
aggregate liquidation amount of $15,000,000 (the “Capital Securities”) of the
Trust.
The
Capital Securities and the Common Securities (as defined herein) are to be
issued pursuant to the terms of a Declaration of Trust dated as of September
29,
2006 (the “Trust Agreement”), relating to the Trust among the Company, as
Sponsor, (and, together with the Trust, the “Offerors”), Wilmington Trust
Company, as property trustee (the “Property Trustee”), Wilmington Trust Company,
as Delaware trustee (the “Delaware Trustee”) and the Administrative Trustees
named therein (collectively, with the Property Trustee, the Delaware Trustee
and
the Administrative Trustees, the “Issuer Trustees”). The Capital Securities will
be guaranteed by the Company on a subordinated basis and subject to certain
limitations with respect to distributions and payments upon liquidation,
redemption or otherwise (the “Guarantee”) pursuant to the Guarantee Agreement
relating to the Capital Securities dated as of September 29, 2006 (the
“Guarantee Agreement”), between the Company and Wilmington Trust Company, as
Guarantee Trustee (the “Guarantee Trustee”). The
assets
of
the Trust will consist of junior subordinated deferrable interest debentures,
due September 29, 2036, (the “Junior Subordinated Debentures”) of the Company
which will be issued under an indenture, as supplemented from time to time,
dated as of September 29, 2006 (as so supplemented, the “Indenture”), between
the Company and Wilmington Trust Company, as Trustee (the “Debenture Trustee”).
Under certain circumstances, the Junior Subordinated Debentures will be
distributable to the holders of undivided beneficial interests in the assets
of
the Trust. The entire proceeds from the sale of the Capital Securities will
be
combined with the entire proceeds from the sale by the Trust to the Company
of
the Trust’s common securities (the “Common Securities”), and will be used by the
Trust to purchase an equivalent amount of the Junior Subordinated
Debentures.
Section
2 Representations
and Warranties.
Each
of
the Offerors represents and warrants to, and agrees with, the Purchaser as
follows:
(a) The
Company is duly incorporated and validly existing as a corporation in good
standing under the laws of the Commonwealth of Pennsylvania with full power
and
authority (corporate and other) to own, lease, and operate its properties and
conduct its business as presently conducted; the Company is duly registered
under the Bank Holding Company Act of 1956, as amended (the “BHCA”); the Company
has no material subsidiaries except those described in its Annual Report on
Form
10-K for the fiscal year ended December 31, 2005 (the “Annual Report”) (each a
“Subsidiary”); the Company owns, directly or indirectly, beneficially and of
record, all of the outstanding capital stock of each Subsidiary free and clear
of any claim, lien, encumbrance or security interest. The Company and each
of
its Subsidiaries is duly qualified to do business and is in good standing as
a
foreign corporation in each jurisdiction in which any of them own or lease
properties, has an office, or in which the business conducted by any of them
make such qualification necessary, except where the failure to so qualify would
not have a material adverse effect on the condition (financial or otherwise),
business, prospects, assets, properties, results of operations, or net worth
of
the Company or any of the Subsidiaries (“Material Adverse Effect”), and no
proceeding has been instituted in any), jurisdiction revoking, limiting or
curtailing, or seeking to revoke, limit or curtail, such power and authority
or
qualification.
(b) The
Capital Securities have been duly and validly authorized for issuance and sale
to the Purchaser pursuant to this Agreement and, when executed and authenticated
in accordance with the terms of the Trust Agreement and delivered to the
Purchaser against payment of the consideration set forth herein, will constitute
valid and legally binding obligations of the Trust enforceable in accordance
with their terms and the Purchaser shall be entitled to the benefits provided
by
the Trust Agreement. The Trust Agreement has been duly authorized and, when
executed by the Trustees thereof and delivered by the Trustees thereof, will
have been duly executed and delivered by the Trustees and will constitute the
valid and legally binding instrument of the Trustees, enforceable in accordance
with its terms, (except as enforcement thereof may be limited by bankruptcy,
insolvency or other laws relating to or affecting enforcement of creditors’
rights generally or by general principles of equity (regardless of whether
enforcement is sought in a proceeding in equity or at law)). The Junior
Subordinated Debentures have been duly and validly authorized for delivery
by
the Company and, when duly authenticated in accordance with the terms of the
Indenture and delivered to the Trust against payment of the consideration set
forth herein, will constitute valid and legally binding obligations of the
Company enforceable against the Company in accordance with their terms (except
as such enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, receivership, readjustment of debt, moratorium, fraudulent
conveyance or similar laws relating to or affecting creditors’ rights generally,
general equity principles (whether considered in a proceeding in equity or
at
law)) and the Trust shall be entitled to the benefits provided by the Indenture.
The Indenture has been duly authorized and, when executed by the proper officers
of the Company and delivered by the Company, will have been duly executed and
delivered by the Company and will constitute the valid and legally binding
instrument of the Company, enforceable in accordance with its terms, (except
as
enforcement thereof may be limited by bankruptcy, insolvency or other laws
relating to or affecting enforcement of creditors’ rights generally or by
general principles of equity (regardless of whether enforcement is sought in
a
proceeding in equity or at law)).
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(c) Neither
the Trust nor the Company or any Subsidiary, is, or with the giving of notice
or
lapse of time or both will be, in material violation or breach of, or in default
under, nor will the execution or delivery of, or the performance and
consummation of the transactions contemplated by this Agreement (including
the
offer, sale, or delivery of the Capital Securities), conflict with, or result
in
a material violation or breach of, or constitute a material default under,
any
provision of the organization documents of the Trust or the Articles of
Incorporation, Bylaws (as amended or restated) of the Company, or other
governing documents of the Trust, the Company or any Subsidiary, or of any
provision of any material agreement, contract, mortgage, deed of trust, lease,
loan agreement, indenture, note, bond, or other evidence of indebtedness, or
other material agreement or instrument to which the Trust, the Company or any
Subsidiary is a party or by which any of them is bound or to which any of their
properties is subject, nor will the performance by the Offerors of their
obligations hereunder violate any material rule, regulation, order, or decree,
applicable to the Trust, the Company or any Subsidiary of any court or any
regulatory body, administrative agency, or other governmental body having
jurisdiction over the Trust, the Company or any Subsidiary or any of their
respective properties, or any material order of any court or governmental agency
or authority entered in any proceeding to which the Trust, the Company or any
Subsidiary was or is now a Party or by which it is bound, except those, which
are not material to the Company and the Trust taken as a whole. No consent,
approval, filing, authorization, registration, qualification, or order,
including with or by any bank regulatory agency, is required for the execution,
delivery, and performance of this Agreement or the consummation of the
transactions contemplated by this Agreement, other than such that have been
obtained or made. This Agreement has been duly authorized, executed and
delivered by the Company and the Trust and constitutes a valid and binding
obligation of the Company and the Trust and is enforceable against the Company
and the Trust in accordance with the terms.
(d) ▇▇▇▇▇
▇▇▇▇▇▇ Company LLP has audited, reviewed, and expressed its opinion with respect
to the audited financial statements and schedules of the Company filed with
the
Securities and Exchange Commission (the “SEC”) as part of the Annual Report, and
whose report is included in the Annual Report, are independent accountants
as
required by the SEC.
(e) The
audited financial statements and the related notes thereto included in the
Annual Report present fairly the financial position of the entities purported
to
be shown thereby as of the respective dates of such financial statements and
schedules, and the results of operations and changes in equity and in cash
flows
of the entities purported to be shown thereby for the respective periods covered
thereby, all in conformity with generally accepted accounting principles
consistently applied throughout the periods involved, except as may be disclosed
in the Annual Report. All material adjustments necessary for a fair presentation
of the results of such periods have been made.
3
(f) There
is
no litigation or governmental proceeding, action, or investigation pending
or,
to the knowledge of the Trust or the Company, threatened, to which the Trust,
the Company or any Subsidiary is or may be a party or to which property owned
or
leased by the Company or any Subsidiary is or may be subject, or related to
environmental or discrimination matters which is required to be disclosed in
the
Annual Report and is not so disclosed.
(g) Either
the Company or a Subsidiary, as the case may be, has good and marketable title
in fee simple to all items of real property and good and marketable title to
all
the personal properties and assets reflected as owned by the Company or a
Subsidiary in the Annual Report, in each case clear of all liens, mortgages,
pledges, charges, or encumbrances of any kind or nature except those, if any,
reflected in the financial statements described above or which are not material
to the Company or any Subsidiary; all material properties held or used by the
Company or a Subsidiary under leases, licenses, franchises or other agreements
are held by them under valid, existing, binding, and enforceable leases,
franchises, licenses, or other agreements with respect to which it is not in
default.
(h) Except
as
reflected in or contemplated by the Annual Report, since the respective dates
as
of which information has been given in the Annual Report and prior to the
Closing Date (as such term is hereinafter defined):
(i) Neither
the Company nor any Subsidiary has or will have incurred any material
liabilities or obligations, direct or contingent, or entered into any material
transaction not in the ordinary course of business;
(ii) Neither
the Company nor any Subsidiary has or will have paid or declared any dividend
or
other distribution with respect to its capital stock (other than those
consistent with past practices) and neither the Company nor any Subsidiary
has
or will be delinquent in the payment of principal or interest on any outstanding
debt obligations; and
(iii) There
has
not been and will not be any material change in capital stock or any material
change in the indebtedness of the Company or any Subsidiary (except as may
result from the closing of the transactions contemplated by this Agreement),
or
any adverse change in the condition (financial or otherwise), or any development
involving a prospective adverse change in their respective businesses (resulting
from litigation or otherwise), prospects, properties, condition (financial
or
otherwise), net worth, or results of operations which is material to the Company
or any Subsidiary.
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(i) There
is
no contract or other document, transaction, or relationship required to be
described in the Annual Report or to be filed as an exhibit to the Annual Report
that has not been described or filed, as required.
(j) All
documents delivered or to be delivered by the Offerors or any of their
representatives in connection with the issuance and sale of the Capital
Securities were on the dates on which they were delivered, or will be on the
dates on which they are to be delivered, true, complete, and correct in all
material respects.
(k) The
Company and each Subsidiary have filed all necessary federal and all state
and
foreign income and franchise tax returns and paid all taxes shown as due
thereon; and no tax deficiency has been asserted or threatened against the
Company or any Subsidiary that would have a Material Adverse
Effect.
(l) Neither
the Trust nor the Company or any Subsidiary has, directly or indirectly, at
any
time:
(i) made
any
unlawful contribution to any candidate for political office, or failed to
disclose any contribution in violation of law; or
(ii) made
any
payment to any federal, state, local, or foreign government officer or official,
or other person charged with similar public or quasi-public duties, other than
payments required or permitted by the laws of the United States or any
jurisdiction thereof or applicable foreign jurisdictions.
(m) The
Company or a Subsidiary owns or possesses adequate rights to use all material
patents, patent applications, trademarks, service marks, trade names, trademark
registrations, servicemark registrations, copyrights, and licenses necessary
for
the conduct of the business of the Company and the Subsidiaries or ownership
of
their respective properties, and neither the Company nor any Subsidiary has
received notice of conflict with the asserted rights of others in respect
thereof which has not been resolved.
(n) The
Company and each Subsidiary have in place and effective such policies of
insurance, with limits of liability in such amounts, as are normal and prudent
in the ordinary scope of business similar to that of the Company and such
Subsidiary in the respective jurisdictions in which they conduct
business.
(o) The
Company and each Subsidiary have and hold, and at the Closing Date (as defined
herein) will have and hold, and are operating in compliance with, and have
fulfilled and performed all of their material obligations with respect to,
all
permits, certificates, franchises, grants, easements, consents, licenses,
approvals, charters, registrations, authorizations, and orders (collectively,
“Permits”) required under all laws, rules, and regulations in connection with
their respective businesses, and all of such Permits are in full force and
effect; and there is no pending proceeding, and neither the Company nor any
Subsidiary has received notice of any material threatened proceeding, relating
to the revocation or modification of any such Permits. Neither the Company
nor
any Subsidiary is or has been (by virtue of any action, omission to act,
contract to which it is a party or by which it is bound, or any occurrence
or
state of facts whatsoever) in violation of any applicable federal, state,
municipal, or local statutes, laws, ordinances, rules, regulations and/or orders
issued pursuant to foreign, federal, state, municipal, or local statutes, laws,
ordinances, rules, or regulations (including those relating to any aspect of
banking, bank holding companies, environmental protection, occupational safety
and health, and equal employment practices) heretofore or currently in effect,
except such violation that has been fully cured or satisfied without recourse
or
that is not reasonably likely to have a Material Adverse Effect.
5
(p) The
provisions of any employee pension benefit plan (“Pension Plan”) as defined in
Section 3(2) of the Employee Retirement Income Security Act of 1974, as amended
(“ERISA”), in which the Company or any Subsidiary is a participating employer
are in substantial compliance with ERISA, and neither the Company nor any
Subsidiary is in material violation of ERISA. The Company, each Subsidiary,
or
the plan sponsor thereof, as the case may be, has duly and timely filed the
reports required to be filed by ERISA in connection with the maintenance of
any
Pension Plans in which the Company or any Subsidiary is a participating
employer, and no facts, including any “reportable event”, as defined by ERISA
and the regulations thereunder, exist in connection with any Pension Plan in
which the Company or any Subsidiary is a participating employer which might
constitute grounds for the termination of such plan by the Pension Benefit
Guaranty Corporation or for the appointment by the appropriate U.S. District
Court of a trustee to administer any such plan. The provisions of any employee
benefit welfare plan, as defined in Section 3(1) of ERISA, in which the Company
or any Subsidiary is a participating employer, are in substantial compliance
with ERISA, and the Company, any Subsidiary, or the plan sponsor thereof, as
the
case may be, has duly and timely filed the reports required to be filed by
ERISA
in connection with the maintenance of any such plans.
(q) Neither
the Company nor the Trust is an open-end investment company, unit investment
trust or face-amount certificate company that is, or is required to be
registered under Section 8 of the Investment Company Act of 1940, as amended,
or
subject to regulation under such Act.
(r) The
Company is a member in good standing of the Federal Reserve System and the
deposits of each bank or savings bank Subsidiary are insured by the Federal
Deposit Insurance Corporation (“FDIC”) up to the legal limits.
(s) Neither
this Agreement nor any certificate, statement or other document delivered or
to
be delivered by the Offerors or any Subsidiary contains or will contain any
untrue statement of a material fact or omits or will omit to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading.
(t) Any
certificate signed by any director or officer of the Company or the Trust,
as
the case may be, and delivered to the Purchaser or to counsel for the Purchaser
shall be deemed a representation and warranty of the Company or the Trust,
as
the case may be, to the Purchaser as to the matters covered
thereby.
6
Any
certificate delivered by the Company or the Trust, as the case may be, to their
respective counsel for purposes of enabling such counsel to render an opinion
pursuant to Section 6 will also be furnished to the Purchaser and counsel
for the Purchaser and shall be deemed to be additional representations and
warranties to the Purchaser by the Company and the Trust as to the matters
covered thereby.
Section
3 Purchase
Sale and Delivery to Purchaser; Closing.
On
the
basis of the representations and warranties herein contained and subject to
the
terms and conditions herein set forth, the Trust and the Company, as the case
may be, agree that the Trust will issue and sell to the Purchaser, and the
Purchaser agrees, to purchase from the Trust, the Capital Securities. The
purchase price for the Capital Securities shall be $15,000,000 (“Purchase
Price”).
Payment
of the Purchase Price for, and delivery of, the Capital Securities shall be
made
at the offices of Blank Rome LLP, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, or at such other place as shall be agreed upon by the Purchaser, the
Trust and the Company, at 11:00 A.M. Eastern Standard Time, on the date of
this
Agreement, or such other time not later than ten (10) business days after such
date as shall be agreed upon by the Purchaser, the Trust and the Company (such
time and date of payment and delivery being herein called the “Closing
Date”).
Payment
for the Capital Securities shall be made to the Trust by wire transfer of next
day funds, against delivery to the Purchaser of the Capital Securities to be
purchased by it. The Capital Securities shall be issued in the form of one
or
more fully registered notes in the form of Exhibit A-1 to the Trust Agreement
in
such name or names as the Purchaser may request in writing at least two business
days before the Closing Date.
Section
4 Agreements
of the Offerors.
Each
of
the Offerors covenants and agrees with the Purchaser that:
(a) The
Offerors shall take or cause to be taken in cooperation with the Purchaser
and
counsel to the Purchaser all actions required in exempting, qualifying or
registering the Capital Securities for sale under the Federal securities laws
and the Blue Sky Laws of such jurisdictions as the Purchaser may reasonably
designate, provided the Offerors shall not be required to qualify generally
as
foreign corporations or to consent generally to the service of process under
the
law of any such state (except with respect to the offering and sale of the
Capital Securities), and will continue such exemptions, qualifications or
registrations in effect so long as reasonably requested by the Purchaser
(including, without limitation, compliance with all undertakings given pursuant
to such exemptions, qualifications or registrations). In each jurisdiction
where
any of the Capital Securities shall have been exempted, qualified or registered
as provided above, the Offerors will file such reports and statements as may
be
required to continue such exemption, qualification or registration for a period
of not less than one year from the date of this Agreement.
7
(b) The
Company will furnish to its security holders annual reports containing financial
statements audited by independent public accountants and quarterly reports
containing financial statements and financial information which may be
unaudited. During the period ending ten years after the date of this Agreement,
(i) as soon as practicable after the end of the fiscal year, the Company will
furnish to the Purchaser two copies of the annual report of the Company
containing the consolidated balance sheet of the Company as of the close of
such
fiscal year and corresponding consolidated statements of earnings, stockholders’
equity and cash flows for the year then ended, such consolidated statements
financial statements to be under the certificate or opinion of the Company’s
independent accountants, and (ii) the Company will file promptly and will
furnish to the Purchaser at or before the filing thereof copies of all reports
and any definitive proxy or information statements required to be filed by
the
Company with the SEC pursuant to Section 13, 14, or 15 of the Securities
Exchange Act of 1934, as amended. During such ten-year period the Company also
will furnish to the Purchaser one copy of the following:
(i) as
soon
as practicable after the filing thereof, each other report, statement, or other
document filed by the Company with the SEC;
(ii) as
soon
as available, each report, statement, or other document of the Company mailed
to
its stockholders.
(c) The
Offerors will use their best efforts to satisfy or cause to be satisfied the
conditions to the obligations of the Purchaser in Section 6 hereof.
(d) The
Company shall prepare and timely file with the SEC, from time to time, such
reports as may be required by the Securities Act Regulations.
(e) The
Trust
shall comply in all respects with the undertakings given by the Trust in
connection with the exemption, qualification or registration of the Capital
Securities for offering and sale under the Federal securities and/or Blue Sky
Laws.
(f) The
Trust
shall apply the net proceeds from the sale of the Capital Securities to be
sold
by it hereunder in the manner and for the purposes specified in writing to
the
Purchaser.
Section
5 Payment
of Expenses and Fees.
(a) Whether
or not the transactions contemplated hereunder are consummated, or if this
Agreement is terminated for any reason, the Company will pay or cause to be
paid
the costs, fees, and expenses incurred in connection with the offering of the
Capital Securities as follows:
(i) All
costs, fees, and expenses incurred in connection with the performance of the
Purchaser, the Company and the Trust’s obligations hereunder, including all fees
and expenses of the Purchaser, the Company and the Trust’s accountants and
counsel.
(ii) All
filing and registration fees and expenses, including the legal fees and
disbursements of counsel, incurred in connection with exempting, qualifying
or
registering all or any part of the Capital Securities, the Guarantee and the
Junior Subordinated Debentures for offer and sale under Federal securities
and/or the Blue Sky Laws.
8
(iii) All
fees
and expenses of the Offerors’ registrar and transfer agent, all transfer taxes,
if any, and all other fees and expenses incurred in connection with the sale
and
delivery of the Capital Securities to the Purchaser; and
(iv) All
other
costs and expenses incident to the performance of the Company’s and the Trust’s
obligations hereunder which are not otherwise provided for in this Section
5(a).
Section
6 Conditions
to the Obligations of the Purchaser.
The
obligations of the Purchaser under this Agreement shall be subject to the
accuracy of the representations and warranties on the part of the Company and
the Trust set forth herein as of the Closing Date, and to the accuracy of the
statements of the Offerors’ directors and officers, to the performance by the
Company and the Trust of their obligations hereunder, and to the following
additional conditions, except to the extent expressly waived in writing by
the
Purchaser:
(a) The
Capital Securities, the Guarantee and the Junior Subordinated Debentures shall
have been qualified or registered for sale, or subject to an available exemption
from such qualification or registration, under the Federal securities and Blue
Sky Laws of such jurisdictions as shall have been reasonably specified by the
Purchaser.
(b) Since
the
dates as of which information is given in the Annual Report:
(i) There
shall not have been any material adverse change, or any development involving
a
prospective material adverse change, in the ability of the Company or any
Subsidiary to conduct their respective business (whether by reason of any court,
legislative, other governmental action, order, decree, or otherwise, or in
the
general affairs, condition (financial and otherwise), business, prospects,
properties, management, financial position or earnings, results of operations,
or net worth of the Company or any Subsidiary, whether or not arising from
transactions in the ordinary course of business, and
(ii) Neither
the Company nor any Subsidiary shall have sustained any material loss or
interference from any labor dispute, strike, fire, flood, windstorm, accident.
or other calamity (whether or not insured) or from any court or governmental
action, order, or decree, the effect of which on the Company or any Subsidiary,
in any such case described in clause (b)(i) or (ii) above, is in the reasonable
opinion of the Purchaser so material and adverse as to make it impracticable
or
inadvisable to proceed with the private offering or the delivery of the Capital
Securities on the terms and in the manner contemplated in this
Agreement.
(c) There
shall have been furnished to the Purchaser on the Closing Date, except as
otherwise expressly provided below:
(i) The
favorable opinion of Mette, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel to the Company, dated
as of the Closing Date, in form and substance substantially in the form and
substance reasonably satisfactory to the Purchaser.
(ii) The
favorable opinions, dated the Closing Date, of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger,
counsel to the Property Trustee, the Delaware Trustee and the Debenture Trustee,
and special Delaware counsel to the Trust, substantially in the form and
substance reasonably satisfactory to the Purchaser.
9
(iii) The
favorable opinion, dated the Closing Date, of Blank Rome LLP, counsel to the
Purchaser as to such matters as the Purchaser shall reasonably
request.
In
rendering such opinions specified in clause (c)(ii), or (iii) above, counsel
may
rely upon an opinion or opinions, each dated the Closing Date, of other counsel
retained by them or the Company as to laws of any jurisdiction other than the
United States, the Commonwealth of Pennsylvania or the State of Delaware,
provided that (A) such reliance is expressly authorized by each opinion so
relied upon and a copy of each such opinion is delivered to the Purchaser,
and
(B) counsel shall state in their opinion that they believe that they and the
Purchaser are justified in relying thereon. Insofar as such opinions involve
factual matters, such counsel may rely, to the extent such counsel deems proper,
upon certificates of officers of the Company, its subsidiaries and the Trust
and
certificates of public officials.
(d) On
the
Closing Date, a certificate signed by the Chairman of the Board, the President,
a Vice Chairman of the Board or any Executive or Senior Vice President and
the
principal financial or accounting officer of the Company, dated the Closing
Date, to the effect that the signers of such certificate have carefully examined
the Annual Report and this Agreement and that:
(i) The
representations and warranties of the Company in this Agreement are true and
correct in all material respects on and as of the Closing Date with the same
effect as if made on the Closing Date and the Company has complied in all
material respects with all the agreements and satisfied in all material respects
all the conditions on its part to be performed or satisfied at or prior to
the
Closing Date; and
(ii) Each
of
the respective signatories of the certificate has carefully examined the Annual
Report and any amendments thereto, and such documents contain all statements
and
information required to be made therein. and neither the Annual Report nor
any
amendment thereto includes 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 not misleading and, since the date on which the Annual Report
was initially filed, no event has occurred that was required to be set forth
in
an amendment to the Annual Report that has not been so set forth;
and
(iii) Since
the
date on which the Annual Report was initially filed with the SEC, there has
not
been any material adverse change or a development involving a prospective
material adverse change in the business, properties, financial condition. or
earnings of the Company or any of its Subsidiaries, neither the Company nor
any
Subsidiary has incurred any material liability or obligation, direct or
indirect, or entered into any transaction that is material to the Company or
such Subsidiary, as the case may be, since such date and except as disclosed
there has not been any material change in the outstanding capital stock of
the
Company, or any change that is material to the Company or any of its
Subsidiaries in the short-term debt or long-term debt of the Company or any
Subsidiary; since such date and except as so disclosed, neither the Company
nor
any of its Subsidiaries have incurred any material contingent obligations,
and
no material litigation is pending or threatened against the Company or any
Subsidiary; and, since such date and except as so disclosed in writing to the
Purchaser, neither the Company nor any of its Subsidiaries have sustained any
material loss or interference from any strike, fire, flood, windstorm, accident
or other calamity (whether or not insured) or from any court or governmental
action, order, or decree.
10
(e) Prior
to
the Closing Date, the Company shall have furnished to the Purchaser such further
information, certificates and documents as the Purchaser may reasonably request
in connection with the offering of the Capital Securities.
If
any
condition specified in this Section shall not have been fulfilled when and
as
required to be fulfilled, this Agreement may be terminated by the Purchaser
by
notice from the Purchaser to the Company at any time without liability on the
part of the Purchaser, or the Company, except for expenses to be paid by the
Company pursuant to Section 5 hereof or reimbursed by the Company pursuant
to
Section 7 and except to the extent provided in Section 8.
Section
7 Reimbursement
of Purchaser’s Expenses.
If
the
sale of the Capital Securities provided for herein is not consummated (x) by
reason of acts of the Company pursuant to Section 10 hereof which permits
termination of this Agreement, (y) by reason of any failure, refusal or
inability on the part of the Company to perform any agreement on its part to
be
performed pursuant to this Agreement or (z) because any other condition of
the
Purchaser’s obligations set forth in Section 6 of this Agreement is not
fulfilled (unless such failure to perform such agreement or fulfill such
condition is due to the default or omission of the Purchaser or its counsel),
then the Company, shall reimburse the Purchaser for all reasonable out-of-pocket
expenses (including reasonable fees and expenses of their counsel) incurred
by
them in connection with this Agreement and the proposed purchase of the Capital
Securities.
Section
8 Indemnification
and Contribution.
(a) (a)The
Company and the Trust agree to jointly and severally indemnify and hold harmless
the Purchaser and each person, if any, who controls the Purchaser within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act,
against any and all losses, claims, damages, expenses, liabilities, or actions
in respect thereof (“Claims”), joint or several to which such Purchaser or each
such controlling person may become subject under the Securities Act, the
Exchange Act, the Securities Act Regulations, Blue Sky Laws or other federal
or
state statutory laws or regulations, at common law or otherwise (including
payments made in settlement of any litigation, if such settlement is effected
with the written consent of the Company, which consent shall not be unreasonably
withheld), insofar as such Claims arise out of or are based upon the inaccuracy
or breach of any representation, warranty, or covenant of the Company or the
Trust contained in this Agreement, any untrue statement or alleged untrue
statement of any material fact contained in the Annual Report, or any amendment
thereto, or in any application filed under any Federal securities or Blue Sky
Law or other document executed by the Offerors for that purpose or based upon
written information furnished by the Offerors and filed in any state or other
jurisdiction to exempt, to qualify or register any or all of the Capital
Securities under the securities laws thereof (any such document, application,
or
information being hereinafter called a “Blue Sky Application”), or arise out of
or are based upon the omission or alleged omission to state in any of the
foregoing a material fact required to be stated therein or necessary to make
the
statements therein not misleading. The Company agrees to reimburse the Purchaser
and each such controlling person promptly for any reasonable legal fees or
other
expenses incurred by the Purchaser or any such controlling person in connection
with investigating or defending any such Claim or appearing as a third-party
witness in connection with any such Claim.
11
(b) Promptly
after receipt by an indemnified party under subsection (a) of this Section
8 of
notice of the commencement of any action in respect of a Claim, such indemnified
party will, if a Claim in respect thereof is to be made against an indemnifying
party under such subsection, notify the indemnifying party in writing of the
commencement thereof. In case any such action is brought against any indemnified
party, and such indemnified party notifies an indemnifying party of the
commencement thereof, the indemnifying party will be entitled to participate
in
and, to the extent that it may wish, jointly with all other indemnifying
Parties, similarly notified, assume the defense thereof, with counsel reasonably
satisfactory to such indemnified party, provided, however, if the defendants
in
any such action include both the indemnified party and the indemnifying party
and the indemnified party shall have reasonably concluded that there may be
legal defenses available to the indemnified party and/or other indemnified
parties that are different from or additional to those available to the
indemnifying party, the indemnified party or parties shall have the right to
select separate counsel to assume such legal defenses and to otherwise
participate in the defense of such action on behalf of such indemnified party
or
parties.
(c) Upon
receipt of notice from the indemnifying party to such indemnified party of
the
indemnifying party’s election to assume the defense of such action and upon
approval by the indemnified party of counsel selected by the indemnifying party,
the indemnifying party will not be liable to such indemnified party under
subsection (a) of this Section 8 for any legal fees or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof, unless:
(i) the
indemnified party shall have employed separate counsel in connection with the
assumption of legal defenses in accordance with the proviso to the last sentence
of subsection b of this Section (it being understood, however, that the
indemnified party shall not be liable for the legal fees and expenses of more
than one separate counsel, if one or both of the Purchaser or their controlling
persons are the indemnified parties); or
(ii) the
indemnifying party shall not have employed counsel reasonably satisfactory
to
the indemnified party to represent the indemnified party within a reasonable
time after the indemnified party’s notice to the indemnifying party of
commencement of the action; or
(d) The
obligations of the Company, the Trust and the Purchaser under this Section
8
shall be in addition to any liability that the Company, the Trust or the
Purchaser may otherwise have.
Section
9 Effective
Date.
This
Agreement shall become effective immediately on the date hereof.
12
Section
10 Termination.
Without
limiting the right to terminate this Agreement pursuant to any other provision
hereof, this Agreement may be terminated by the Purchaser prior to the Closing
Date, if:
(a) The
Offerors shall have failed, refused, or been unable, at or prior to the Closing
Date to perform any agreement on its part to be performed
hereunder.
(b) Any
other
condition to the obligations of the Purchaser hereunder is not fulfilled;
or
(c) In
the
reasonable judgment of the Purchaser, payment for and delivery of the Capital
Securities is rendered impracticable or inadvisable because:
(i) Any
event
shall have occurred or shall exist that makes untrue or incorrect in any
material respect any statement or information contained in the Annual Report
or
that is not reflected in the Annual Report but should be reflected therein
to
make the statements or information contained therein not misleading in any
material respect; or
(ii) Any
outbreak or escalation of major hostilities or other national or international
calamity or any substantial change in political, financial or economic
conditions shall have occurred or shall have accelerated to such extent, in
the
reasonable judgment of the Purchaser, as to have a material adverse effect
on
the general securities market or make it impracticable or inadvisable to proceed
with completion of the sale and payment for the Capital Securities as provided
in this Agreement.
Any
termination pursuant to this Section 10 shall be without liability on the part
of the Purchaser to the Company or on the part of the Company to the Purchaser
(except for expenses to be paid by the Company pursuant to Section 5 or
reimbursed by the Company pursuant to Section 7 and except as to indemnification
to the extent provided in Section 8).
Section
11 Representations
and Indemnities to Survive Delivery.
The
respective indemnity and contribution agreements of the Company and the
representations, warranties, covenants, other statements of the Offerors and
of
their directors and officers set forth in or made pursuant to this Agreement
will remain in full force and effect, regardless of any investigation made
by or
on behalf of the Purchaser or any of their officers, directors, or any
controlling person and will survive delivery of and payment for the Capital
Securities sold hereunder or the termination or cancellation of this
Agreement.
13
Section
12 Notices.
All
communications hereunder shall be in writing and, if sent to the Company, will
be mailed, delivered, or telecopied (with receipt confirmed) to
Pennsylvania
Commerce Bancorp, Inc.
c/o
Commerce Bank/Harrisburg, N.A.
▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Attention:
▇▇▇▇ ▇▇▇▇
With
copies to:
Mette,
▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
P.
O. ▇▇▇
▇▇▇▇
▇▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇-▇▇▇▇
Attn:
▇▇▇▇▇▇▇ ▇▇▇, Esquire
If
sent
to the Trust, will be mailed, delivered, or telecopied (with receipt confirmed)
to
Commerce
Harrisburg Capital Trust II
c/o
Commerce Bank/Harrisburg, N.A.
▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Attention:
▇▇▇▇ ▇▇▇▇
With
copies to:
Mette,
▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
P.
O. ▇▇▇
▇▇▇▇
▇▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇-▇▇▇▇
Attn:
▇▇▇▇▇▇▇ ▇▇▇, Esquire
and
if
sent to the Purchaser, will be mailed, delivered, or telecopied (with receipt
confirmed) to:
Commerce
Bank, N.A.
Commerce
Atrium
▇▇▇▇
▇▇▇▇▇ ▇▇ ▇▇▇▇
▇▇▇▇▇▇,
▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
14
With
copies to
Blank
Rome LLP
▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Attention:
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esquire
Section
13 Successors.
This
Agreement will inure to the benefit of and be binding upon the parties hereto
and their respective successors or assigns, and to the benefit of the directors
and officers (and their personal representatives) and controlling persons
referred to in Section 8, and no other person shall acquire or have any right
or
obligation hereunder.
Section
14 Partial
Unenforceability.
If
any
section, subsection, clause, or provision of this Agreement is for any reason
determined to be invalid or unenforceable, such determination shall not affect
the validity or enforceability of any other section, subsection, clause, or
provision hereof.
Section
15 Governing
Law; Submission to Jurisdiction; Appointment of Agent for Service of
Process.
This
Agreement shall be governed by and construed in accordance with the laws of
the
State of Delaware, without regard to principles of conflict of laws. The parties
hereto hereby declare that it is their intention that this Agreement shall
be
regarded as made under the laws of the State of Delaware and that the laws
of
said State shall be applied in interpreting its provisions in all cases where
legal interpretation shall be required. Each of the parties hereto agrees (a)
that this Agreement involves at least $100,000.00, and (b) that this Agreement
has been entered into by the parties hereto in express reliance upon 6
Del.
C.§
2708.
Each of the parties hereto hereby irrevocably and unconditionally agrees (a)
to
be subject to the jurisdiction of the courts of the State of Delaware and of
the
federal courts sitting in the State of Delaware, and (b) (1) to the extent
such
party is not otherwise subject to service of process in the State of Delaware,
to appoint and maintain an agent in the State of Delaware as such party's agent
for acceptance of legal process, and (2) that, to the fullest extent permitted
by applicable law, service of process may also be made on such party by prepaid
certified mail with a proof of mailing receipt validated by the United States
Postal Service constituting evidence of valid service, and that service made
pursuant to (b) (1) or (2) above shall, to the fullest extent permitted by
applicable law, have the same legal force and effect as if served upon such
party personally within the State of Delaware. .
Section
16 Entire
Agreement.
This
Agreement embodies the entire agreement among the parties hereto with respect
to
the transactions contemplated herein, and there have been and are no agreements
among the parties with respect to such transactions other than as set forth
or
provided for herein.
15
Section
17 Counterparts.
This
Agreement may be executed in one or more counterparts, each of which shall
be
deemed an original, but all of which taken together shall constitute one and
the
same instrument.
16
If
the
foregoing is in accordance with your understanding of our agreement, kindly
sign
and return to us the enclosed counterparts hereof, whereupon it will become
a
binding agreement among the Company, the Trust and the Purchaser, in accordance
with its terms.
Very
truly yours,
COMMERCE
BANK, N.A.
By: _____________________
Name:
Title:
COMMERCE
HARRISBURG CAPITAL TRUST III
By: _____________________
Name:
Title:
PENNSYLVANIA
COMMERCE BANCORP, INC.
By: _____________________
Name:
Title:
17