Exhibit 10
$75,000,000
PROVIDENT FINANCIAL GROUP, INC.
8.375% SENIOR NOTES DUE 2032
UNDERWRITING AGREEMENT
----------------------
July 15, 2002
Lehman Brothers Inc.,
As Representative of the several
Underwriters named in Schedule I
745 Seventh Avenue
New York, New York 10019
Dear Sirs:
Provident Financial Group, Inc., an Ohio corporation (the
"Company"), proposes to issue and sell $75 million aggregate principal amount of
its 8.375% Senior Notes Due 2032 (the "Notes") to the several Underwriters named
in Schedule I hereto (the "Underwriters"). The Notes are to be issued pursuant
to an Indenture (the "Indenture") dated as of July 15, 2002 between the Company
and J.P. Morgan Trust Company, National Association, as trustee (the "Trustee").
This is to confirm the agreement concerning the purchase of the Notes by the
Underwriters. This is also an acknowledgment that this Agreement applies only to
the Notes and to no other securities that may be offered or sold by the Company
under the Registration Statement and by means of the Prospectus.
1. Representations, Warranties and Agreements of the Company.
The Company represents, warrants and agrees that:
(a) A registration statement on Form S-3 (No. 333-93603), and
any amendments thereto, with respect to the Notes has (i) been prepared
by the Company 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 no stop order suspending the
effectiveness of the Registration Statement or any post-effective
amendment thereto has been issued and no proceeding for that purpose
has been initiated or threatened by the Commission; and the Indenture
has 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 to you. 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; 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 the prospectus contained in the Registration
Statement at the Effective Time as supplemented by any prospectus
supplement relating to the Notes (the
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"Prospectus Supplement"). Reference made herein 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 the Prospectus and any reference to any
amendment or supplement to 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 the Prospectus
and incorporated by reference in the Prospectus; 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.
(b) The Registration Statement and the Prospectus conform and
any further amendments or supplements to the Registration Statement or
the Prospectus, including any Prospectus Supplement, when they become
effective or are 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 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
information furnished to the Company through you, as the representative
(the "Representative") of the Underwriters, by or on behalf of any
Underwriter specifically for inclusion therein; the Indenture conforms
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 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 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
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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, considered as one enterprise, 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 Significant Subsidiary of the Company (as defined under
Section 12b-2 of the Exchange Act) have been duly and validly
authorized and issued and are fully paid and non-assessable (except as
set forth in 12 U.S.C.ss.55 and Ohio Revised Code Section 1107.07) 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 Indenture has been duly authorized, executed and
delivered by the Company and is duly qualified under the Trust
Indenture Act, and, assuming due execution and delivery by the Trustee,
constitutes 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 Notes 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 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 Notes, when issued and
delivered, will conform in all material respects to the description
thereof contained in the Prospectus.
(g) This Agreement has been duly authorized, executed and
delivered by the Company.
(h) The execution, delivery and performance of this Agreement,
the Indenture and the Notes by the Company, 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
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subsidiaries 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, considered as one enterprise; 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 such as have already
been obtained and applicable state securities laws in connection with
the purchase and distribution of the Notes 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 Indenture or
the Notes or the consummation of the transactions contemplated herein
and therein.
(i) 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, considered as one enterprise, otherwise than as
set forth or contemplated in the Prospectus.
(j) 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 judgments and estimations as of the
date of such statements as to future operating plans and results.
(k) Ernst & Young, LLP, who have certified certain financial
statements of the Company, whose report appears in the Prospectus or is
incorporated by reference therein, are independent public accountants
as required by the Securities Act and the Rules and Regulations.
(l) 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
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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,
considered as one enterprise; and to the best of the Company's
knowledge, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others.
(m) The conditions for use of Form S-3, as set forth in the
General Instructions thereto, have been satisfied.
(n) 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.
(o) Neither the Company nor any of its subsidiaries (A) is in
violation of its charter or by-laws, (B) 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 (C) 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.
(p) Neither the Company nor 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.
(q) 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,
the Company has not (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) declared or paid any dividend on its capital
stock.
(r) 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,
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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, considered as one enterprise; there
has been no material spill, discharge, leak, emission, injection,
escape, dumping or release of any kind onto such property or into the
environment surrounding such property of any toxic wastes, medical
wastes, solid wastes, hazardous wastes or hazardous substances due to
or caused by the Company or any of its subsidiaries or with respect to
which the Company or any of its subsidiaries have knowledge, except for
any such spill, discharge, leak, emission, injection, escape, dumping
or release which would not have or would not be reasonably likely to
have, singularly or in the aggregate with all such spills, discharges,
leaks, emissions, injections, escapes, dumpings and releases, a
material adverse effect on the business, financial position or
operating results of the Company and its subsidiaries, considered as
one enterprise; 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.
(s) The Company is duly registered as a bank holding company
under the Bank Holding Company Act of 1956, as amended (the "BHC Act").
(t) 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.
(u) 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, considered as one enterprise. 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 indicates
that it is not "well-capitalized" under regulations issued by the
Federal Reserve Board, 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.
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2. Purchase of the Notes by the Underwriters. (a) The Company
hereby agrees to sell to the several Underwriters and each of the Underwriters,
severally and not jointly, upon the basis of the representations, warranties and
agreements herein contained, but subject to the conditions hereinafter stated,
agrees to purchase from the Company, the principal amount of Notes set forth
opposite that Underwriter's name in Schedule I hereto at a purchase price of
96.85% of the principal amount thereof.
(b) The Company shall not be obligated to deliver any of the
Notes to be delivered on the Closing Date, except upon payment for all the Notes
to be purchased on such Closing Date.
3. Offering of the Notes by the Underwriters. Upon
authorization by the Representative of the release of the Notes, the several
Underwriters propose to offer the Notes for sale upon the terms and conditions
set forth in the Prospectus.
4. Delivery and Payment. (a) Delivery by the Company of the
Notes to the Representative for the account of each Underwriter against payment
by the Underwriters therefor by wire transfer in federal (same day) funds to
such account as the Company shall specify, shall take place at the offices of
Simpson Thacher & Bartlett, 425 Lexington Avenue, New York, New York on July 18,
2002 or such other date as agreed between the Representative and the Company
(such date and time of delivery and payment for the Notes being herein called
the "Closing Date").
(b) The Notes will be in the form of one or more global Notes
registered in the name of Cede & Co., as nominee of The Depository
Trust Company ("DTC").
5. Further Agreements of the Company. The Company agrees:
(a) To prepare the Prospectus Supplement in a form approved by
the Representative and to file such Prospectus Supplement 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 Representative, 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 Representative 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 Notes; to
advise the Representative, 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 the Prospectus, of the suspension
of the qualification of the Notes 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
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or suspending the use of the Prospectus or suspending the use of the
Prospectus or suspending any such qualification, to use promptly its
best efforts to obtain its withdrawal;
(b) To furnish promptly to the Representative 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 Representative such number of
the following documents as the Representative shall reasonably request:
(A) conformed copies of the Registration Statement as originally filed
with the Commission and each amendment thereto (in each case excluding
exhibits other than the Indenture and the computation of the ratio of
earnings to fixed charges), (B) the Prospectus (including the
Prospectus Supplement) as promptly as practicable prior to the Closing
Date 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 (C) 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
Notes 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 Representative 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 Representative 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
Representative, be required by the Securities Act or requested by the
Commission;
(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 Representative and counsel for the Underwriters and obtain the
consent of the Representative to the filing;
(f) As soon as practicable after the effective date of the
Registration Statement (as defined in the Rules and Regulations), to
make generally available to the Company's
9
security holders and to deliver to the Representative 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) Promptly from time to time to take such action as the
Representative may reasonably request to qualify the Notes for offering
and sale under the securities laws of such jurisdictions in the United
States as the Representative 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 Notes; provided that in connection therewith, the
Company shall not be obligated to qualify as a foreign corporation or
to file a general consent to service of process;
(h) For a period of 30 days from the date of the Prospectus
Supplement, not to, directly or indirectly, 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 securities
that are substantially similar to the Notes, or any securities that are
convertible into, or exchangeable or exercisable for, any of the
foregoing without the prior written consent of the Representative;
(i) To apply the net proceeds from the sale of the Notes as
set forth in the Prospectus; and
(j) To take such steps as shall be necessary to ensure that
none of the Company or any subsidiary of the Company 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 agrees to pay (a) the costs incident
to the authorization, issuance, sale and delivery of the Notes 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
Prospectus and any amendments or supplements 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), 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 Notes; (e) any applicable listing or other fees; (f) the fees
and expenses of qualifying the Notes under the securities laws of the several
jurisdictions as provided in Section 5(g) hereof and of preparing, printing and
distributing a Blue Sky Memorandum (including related fees and expenses of
counsel to the Underwriters in an amount not to exceed $7,500.00); (g) any fees
charged by securities rating services for rating the Notes; (h) the fees and
expenses of the Trustee; and (i) all other costs and expenses incident to the
performance of the obligations of the Company 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,
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including the costs and expenses of their counsel and the expenses of
advertising any offering of the Notes made by the Underwriters.
7. Conditions of Underwriters' Obligations. The 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 contained
herein, to the performance by the Company of its obligations hereunder, and to
each of the following additional terms and conditions:
(a) The Prospectus Supplement 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 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 Simpson Thacher &
Bartlett, 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 Notes, 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
shall have furnished to such counsel all documents and information that
they may reasonably request to enable them to pass upon such matters.
(d) Keating, Muething & Klekamp, P.L.L., counsel to the
Company, shall have furnished to the Representative its written
opinion, addressed to the Underwriters and dated the Closing Date, in
form and substance satisfactory to the Representative, to the effect
that:
(1) The Company and each of its Significant
Subsidiaries (as such term is defined in
Rule 12b-2 of the Commission under the
Exchange Act) have been duly incorporated
and are validly existing as corporations or
banking associations in good standing under
the laws of their respective jurisdictions
of incorporation, are duly qualified to do
business and are in good standing as foreign
corporations in each jurisdiction in which
their respective ownership or lease of
property or the conduct of their respective
businesses requires such qualification
(other than those
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jurisdictions in which the failure to so
qualify would not have a material adverse
effect on the Company or the Company and its
subsidiaries, considered as one enterprise),
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.
(3) The Indenture has been duly authorized,
executed, and delivered by the Company and
duly qualified under the Trust Indenture Act
and, assuming due authorization, execution
and delivery thereof by the Trustee,
constitutes a valid and legally binding
obligation of the Company, enforceable
against the Company in accordance with its
terms, subject to the effects of bankruptcy,
insolvency, fraudulent conveyance,
reorganization, moratorium and other similar
laws relating to or affecting creditors'
rights generally, general equitable
principles (whether considered in a
proceeding in equity or at law) and an
implied covenant of good faith and fair
dealing.
(4) The Notes have been duly authorized,
executed and delivered by the Company and,
assuming due authentication thereof by the
Trustee and payment and delivery as provided
herein, constitute valid and legally binding
obligations of the Company, enforceable
against the Company in accordance with their
terms, subject to the effects of bankruptcy,
insolvency, fraudulent conveyance,
reorganization, moratorium and other similar
laws relating to or affecting creditors'
rights generally, general equitable
principles (whether considered in a
proceeding in equity or at law) and an
implied covenant of good faith and fair
dealing, and entitled to the benefits of the
Indenture.
(5) The statements made in the Prospectus under
the caption "Description of Debt Securities"
and in the Prospectus Supplement under the
caption "Description of Notes", taken
together, insofar as they purport to
constitute summaries of the terms of the
documents referred to therein, constitute
accurate summaries of the terms of such
documents in all material respects
(6) The statements made in the Prospectus
Supplement under the caption "Certain United
States Federal Income Tax
12
Consequences" insofar as they purport to
constitute summaries of matters of United
States federal tax law or regulations or
legal conclusions with respect thereto,
constitute accurate summaries of the matters
described therein in all material respects.
(7) The execution, delivery and performance of
this Agreement, the Indenture and the Notes
by the Company and the consummation of the
transactions contemplated hereby and
thereby, will not, to the best of such
counsel's knowledge, 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, to the best of such
counsel's knowledge, 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, considered as one enterprise.
(8) All of the outstanding shares of capital
stock of each Significant Subsidiary have
been duly authorized and validly issued and
are fully paid and non-assessable (except as
set forth in 12 U.S.C.ss.55 and Ohio Revised
Code Section 1107.07); 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 Company of the Notes and the
compliance by the Company with all of the
provisions of this Agreement, except for
such consents approvals, authorizations,
registrations or qualifications as may be
required under
13
state securities or Blue Sky laws in
connection with the purchase and
distribution of the Notes 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, as amended, 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,
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.
(12) The Company is not required to be registered
as an "investment company" under the
Investment Company Act.
(13) The Company is duly registered as a bank
holding company under the BHC Act; and the
deposit accounts of the Company's bank
subsidiaries are insured by the FDIC to the
fullest extent permitted by law and the
rules and regulations of the FDIC, and to
the best knowledge of such counsel, no
proceedings for the termination of such
insurance are pending or threatened.
(14) To the best of such counsel's knowledge, 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,
considered as one enterprise. 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 indicates that it is not
"well-capitalized" under regulations issued
by the Federal Reserve Board, nor have any
of them been advised by any Bank Regulatory
Authority that it is contemplating issuing
or requesting (or
14
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.
(15) 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.
(16) The documents incorporated by reference in
the Prospectus and any further amendment or
supplement to any such incorporated document
made by the Company 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.
(17) The Registration Statement as of its
Effective Date and the Prospectus as of its
date, and any further amendments or
supplements thereto as of their respective
dates (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 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 governed by New York law,
such counsel has relied upon the opinion of Simpson Thacher &
Bartlett, counsel to the Underwriters, delivered pursuant to
Section 7(e) and (ii) has relied on a certificate of Mark
Magee, Esq., general counsel to the Company, as to certain
factual matters attached to such opinion. Such counsel shall
also have furnished to the Representative a written statement,
addressed to the Underwriters and dated the Closing Date, in
form and substance satisfactory to the Representative, 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
(I) the Registration Statement, as of the Effective Date,
contained any untrue statement of a material fact or omitted
to state any
15
material fact required to be stated therein or necessary to
make the statements therein not misleading, or that the
Prospectus, as amended or supplemented, 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) The Underwriters shall have received from Simpson Thacher
& Bartlett, counsel for the Underwriters, such opinion or opinions,
dated the Closing Date, with respect to the issuance and sale of the
Notes, the Registration Statement, the Prospectus and other related
matters as the Representative may reasonably require, and the Company
shall have furnished to such counsel such documents as they reasonably
request for the purpose of enabling them to pass upon such matters.
(f) On the Closing Date, the Representative shall have
received from Ernst & Young, LLP a letter, in form and substance
satisfactory to the Representative, 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 thereof (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 thereof), 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.
(g) The Company shall have furnished to the Representative 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 in Section 1 hereof are
true and correct as of the Closing Date; the Company
has complied with all their agreements contained
herein and the conditions set forth in paragraphs (a)
and (h) 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 the
Closing Date, did not include any untrue statement of
a material fact and did not omit to state a material
fact required to be stated therein or necessary to
make the statements therein not misleading, and (ii)
since the Effective Date, no
16
event has occurred which should have been set forth
in a supplement or amendment to the Registration
Statement or the Prospectus but was not so set forth.
17
(h) (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 or Provident Bank or any change, or any
development involving a prospective change, in or affecting the general
affairs, management, financial position, stockholders' equity or
results of operations of the Company and its subsidiaries, considered
as one enterprise, 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
Representative, so material and adverse as to make it impracticable or
inadvisable to proceed with the public offering or the delivery of the
Notes on the terms and in the manner contemplated in the Prospectus.
(i) 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.
(j) 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, or settlement of such securities shall have been
materially disrupted, (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, including without
limitation as a result of terrorist activities after the date hereof,
(or the effect of international conditions on the financial markets in
the United States shall be such) as to make it, in the judgment of the
Representative, impracticable or inadvisable to proceed with the public
offering or delivery of the Notes on the terms and in the manner
contemplated in the Prospectus.
(k) The New York Stock Exchange, Inc., shall have approved the
Notes for listing, subject only to official notice of issuance.
18
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 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 Notes), to which the Underwriter, officer, employee or controlling
person may become subject, under the Securities Act or otherwise,
insofar as such loss, claim, damage, liability or action arises out of,
or is based upon, (i) any untrue statement or alleged untrue statement
of a material fact contained (A) in the 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 based upon any written information furnished by the
Company) specifically for the purpose of qualifying any or all of the
Notes under the securities laws of any state or other jurisdiction (any
such application, document or information being hereinafter called a
"Blue Sky Application"), (ii) the omission or alleged omission to state
in 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, 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 shall not be liable in any such
case to the extent that any such loss, claim, damage, liability or
action arises out of, or is based upon, any untrue statement or alleged
untrue statement or omission or alleged omission made in the
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 Representative by or on behalf of
any 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 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, its officers and employees,
each of its 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 any such director, officer or
controlling person may become subject, under the Securities Act or
otherwise, insofar as such loss, claim,
19
damage, liability or action arises out of, or is based upon, (i) any
untrue statement or alleged untrue statement of a material fact
contained (A) in the 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 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 through the Representative by or
on behalf of that Underwriter specifically for inclusion therein, and
shall reimburse the Company and any such director, officer or
controlling person for any legal or other expenses reasonably incurred
by the Company 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 or any such director, officer, employee or controlling person.
(c) Promptly after receipt by an indemnified party under this
Section 8 of notice of any claim or the commencement of any action, the
indemnified party shall, if a claim in respect thereof is to be made
against the indemnifying party under this Section 8, notify the
indemnifying party in writing of the claim or the commencement of that
action; provided, however, that the failure to notify the indemnifying
party shall not relieve it from any liability which it may have under
this Section 8 except to the extent it has been materially prejudiced
by such failure and, provided further, that the failure to notify the
indemnifying party shall not relieve it from any liability which it may
have to an indemnified party otherwise than under this Section 8. If
any such claim or action shall be brought against an indemnified party,
and it shall notify the indemnifying party thereof, the indemnifying
party shall be entitled to participate therein and, to the extent that
it wishes, jointly with any other similarly notified indemnifying
party, to assume the defense thereof with counsel satisfactory to the
indemnified party. After notice from the indemnifying party to the
indemnified party of its election to assume the defense of such claim
or action, the indemnifying party shall not be liable to the
indemnified party under this Section 8 for any legal or other expenses
subsequently incurred by the indemnified party in connection with the
defense thereof other than reasonable costs of investigation; provided,
however, that the Representative shall have the right to employ counsel
to represent jointly the Representative 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 judgment of the Representative, it
is advisable for the Representative 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. 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
20
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 on the one hand and the Underwriters on the other from the
offering of the Notes or (ii) if the allocation provided by clause (i)
above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in
clause (i) above but also the relative fault of the Company 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 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 Notes purchased under this Agreement
(before deducting expenses) received by the Company, on the one hand,
and the total underwriting discounts and commissions received by the
Underwriter with respect to the Notes purchased under this Agreement,
on the other hand, bear to the total gross proceeds from the offering
of the Notes 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 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. The Company 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 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.
21
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 Notes 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 that the Company
acknowledges that the statements made in the last paragraph on the
cover page of, and the concession and reallowance figures appearing
under the caption "Underwriting" in, the Prospectus are correct and
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
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
Notes which the defaulting Underwriter agreed but failed to purchase on the
Closing Date in the respective proportions which the principal amount of Notes
set opposite the name of each remaining non-defaulting Underwriter in Schedule I
hereto bears to the aggregate principal amount of Notes set opposite the names
of all the remaining non-defaulting Underwriters in Schedule I hereto; provided,
however, that the remaining non-defaulting Underwriters shall not be obligated
to purchase any of the Notes on the Closing Date if the aggregate total amount
of Notes which the defaulting Underwriter or Underwriters agreed but failed to
purchase on such date exceeds 9.09% of the total number of Notes to be purchased
on the Closing Date, and any remaining non-defaulting Underwriter shall not be
obligated to purchase more than 110% of the principal amount of Notes which it
agreed to purchase on the Closing Date pursuant to the terms of Section 3. If
the foregoing maximums are exceeded, the remaining non-defaulting Underwriters,
or those other underwriters satisfactory to the Representative 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 Notes to be purchased on
the Closing Date. If the remaining Underwriters or other underwriters
satisfactory to the Representative do not elect to purchase the Notes 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, except that the Company will
continue to be liable for the payment of expenses to the extent set forth in
Sections 6 and 11. 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 I hereto who, pursuant to this Section 9, purchases
which a defaulting Underwriter agreed but failed to purchase.
22
Nothing contained herein shall relieve a defaulting Underwriter of any
liability it may have to the Company for damages caused by its default. If other
underwriters are obligated or agree to purchase the Notes of a defaulting or
withdrawing Underwriter, either the Representative or the Company 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 Representative by notice given to and received by the
Company prior to delivery of and payment for the Notes if, prior to that time,
any of the events described in Sections 7(h), 7(i) or 7(j) shall have occurred
or if the Underwriters shall decline to purchase the Notes for any reason
permitted under this Agreement.
11. Reimbursement of Underwriters' Expenses. If (a) the
Company shall fail to tender the Notes for delivery to the Underwriters for any
reason or (b) the Underwriters shall decline to purchase the Notes for any
reason permitted by this Agreement, the Company 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 Notes, and upon demand the Company shall pay the full amount
thereof to the Representative on behalf of the Underwriters. If this Agreement
is terminated pursuant to Section 9 by reason of default of one or more
Underwriters, the Company shall not 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 Lehman Brothers Inc., 745
Seventh Avenue, New York, New York 10019, Attention: Debt Capital
Markets, Financial Institutions Group (Fax: 212-526-0943);
(b) if to the Company, 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:
513-579-2861);
provided, however, that any notice 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 Representative, which address will be supplied
to any other party hereto by the Representative upon request. Any such
statements, requests, notices or agreements shall take effect at the
time of receipt thereof.
13. Persons Entitled to Benefit of Agreement. This Agreement
shall inure to the benefit of and be binding upon the Underwriters, the Company
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
23
Company 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.
14. Survival. The respective indemnities, representations,
warranties and agreements of the Company 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 Notes 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.]
24
If the foregoing correctly sets forth the agreement among the
Company and the Underwriter, please indicate your acceptance in the space
provided for that purpose below.
Very truly yours,
PROVIDENT FINANCIAL GROUP, INC.
By: __________________________
Name:
Title:
Accepted:
LEHMAN BROTHERS INC.
For itself and as Representative of the
several Underwriters named in Schedule I hereto
By: __________________________
Authorized Representative
25
SCHEDULE I
Underwriters Principal Amount of Notes
to be Purchased
Lehman Brothers Inc....................... $20,250,000
A.G. Edwards & Sons, Inc.................. $20,250,000
McDonald Investments Inc.................. $20,250,000
Prudential Securities..................... $7,125,000
Stifel, Nicolaus & Company................ $7,125,000
TOTAL..................................... $75,000,000