<PAGE>
As filed with the Securities and Exchange Commission on May 12, 1999
Registration No. 333-76647
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
Amendment No. 2
to
FORM S-2
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
YARDVILLE NATIONAL BANCORP
(Exact Name of Registrant as Specified in its Charter)
NEW JERSEY 22-2670267
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification Number)
3111 Quakerbridge Road
Mercerville, New Jersey 08619
(609) 585-5100
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
Patrick M. Ryan
President and Chief Executive Officer
Yardville National Bancorp
3111 Quakerbridge Road
Mercerville, NJ 08619
(609) 585-5100
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
With Copies to:
Brian S. Vargo, Esquire John F. Bales, III, Esquire
Pepper Hamilton LLP Morgan, Lewis & Bockius LLP
3000 Two Logan Square 1701 Market Street
18th and Arch Streets Philadelphia, PA 19103
Philadelphia, PA 19103
Approximate date of commencement of proposed sale to the public: As soon as
practicable after the effective date of this Registration Statement.
If any of the securities being registered on this form are to be offered
on a delayed or continuous basis pursuant to Rule 415 under the Securities Act
of 1933, check the following box. / /
If the registrant elects to deliver a copy of its latest annual report to
securityholders or a complete and legible facsimile thereof, pursuant to item
11(a)(1) of this form, check the following box. / /
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. / /
If this form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / /
If this form is a post-effective amendment filed pursuant to Rule 462(d)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / /
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. / /
<PAGE>
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
===================================================================================================
Proposed Proposed
Maximum Maximum Amount of
Title of Shares to be Amount to be Offering Price Aggregate Registration
Registered Registered Per Unit Offering Price Fee
- ---------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock (1) ......... 1,610,000 $ 12.75(2) $ 20,527,500(2) $ 5,707(3)
===================================================================================================
</TABLE>
(1) Includes 210,000 shares that may be sold pursuant to the over-allotment
option granted to the underwriters.
(2) Estimated in accordance with Rule 457(c), based upon the average of the
high and low prices of the common stock as reported by the Nasdaq National
Market System on April 15, 1999 for purposes of calculating the
registration fee.
(3) Previously paid with initial filing.
The Registrant hereby amends this registration statement on such date or dates
as may be necessary to delay its effective date until the Registrant shall file
a further amendment which specifically states that this registration statement
shall thereafter become effective in accordance with Section 8(a) of the
Securities Act of 1933 or until the registration statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
================================================================================
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-2 and has duly caused this amendment to its
registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Trenton, State of New Jersey on May 12, 1999.
YARDVILLE NATIONAL BANCORP
By: /s/ Patrick M. Ryan
------------------------------------
Patrick M. Ryan
President and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this registration
statement has been signed below by the following persons in the capacities and
on the date indicated above.
<TABLE>
<CAPTION>
SIGNATURES TITLE
---------- -----
<S> <C>
/s/ Jay G. Destribats* Chairman of the Board and Director
- -----------------------------
Jay G. Destribats
/s/ Patrick M. Ryan President and Chief Executive Officer (Principal
- ----------------------------- Executive Officer) and Director
Patrick M. Ryan
/s/ Stephen F. Carman* Treasurer and Secretary (Principal Financial Officer
- ----------------------------- and Principal Accounting Officer)
Stephen F. Carman
/s/ C. West Ayres* Director
- -----------------------------
C. West Ayres
/s/ Elbert G. Basolis, Jr.* Director
- -----------------------------
Elbert G. Basolis, Jr.
/s/ Lorraine Buklad* Director
- -----------------------------
Lorraine Buklad
/s/ Anthony M. Giampetro* Director
- -----------------------------
Anthony M. Giampetro
/s/ Sidney L. Hofing* Director
- -----------------------------
Sidney L. Hofing
/s/ James J. Kelly* Director
- -----------------------------
James J. Kelly
/s/ Gilbert W. Lugossy* Director
- -----------------------------
Gilbert W. Lugossy
/s/ Louis R. Matlack* Director
- -----------------------------
Louis R. Matlack
/s/ Weldon J. McDaniel, Jr.* Director
- -----------------------------
Weldon J. McDaniel, Jr.
/s/ F. Kevin Tylus* Director
- -----------------------------
F. Kevin Tylus
*By: /s/ Patrick M. Ryan
------------------------
Patrick M. Ryan,
Attorney-in-Fact
</TABLE>
II-5
<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Exhibit
Number Description Page
-------- -------------------------------------------------------------------------- -----
<S> <C> <C> <C>
1 Form of Underwriting Agreement
(H) 3.1 Restated Certificate of Incorporation of the Company, as amended by
the Certificate of Amendment thereto filed on March 6, 1998
(B) 3.2 By-Laws of the Company
(B) 4.1 Specimen Share of Common Stock
(I) 4.2 See Exhibits 3.1 and 3.2 for the Registrant's Certificate of Incorpora-
tion and By-Laws, which contain provisions defining the rights of
stockholders of the Registrant
(I) 4.3 Amended and Restated Trust Agreement dated October 16, 1997,
among the Registrant, as depositor, Wilmington Trust Company, as
property trustee, and the Administrative Trustees of Yardville Capital
Trust
(I) 4.4 Indenture dated October 16, 1997, between the Registrant and
Wilmington Trust Company, as trustee, relating to the Registrant's
9.25% Subordinated Debentures due 2027
(I) 4.5 Preferred Securities Guarantee Agreement dated as of October 16,
1997, between the Registrant and Wilmington Trust Company, as
trustee, relating to the Preferred Securities of Yardville Capital Trust
5 Opinion of Pepper Hamilton LLP
(L) 10.1 Employment Contract between Registrant and Patrick M. Ryan.
(L) 10.2 Employment Contract between Registrant and Jay G. Destribats
(L) 10.3 Employment Contract between Registrant and Stephen F. Carman
(L) 10.4 Employment Contract between Registrant and James F. Doran
(L) 10.5 Employment Contract between Registrant and Richard A. Kauffman
(L) 10.6 Employment Contract between Registrant and Mary C. O'Donnell
(L) 10.7 Employment Contract between Registrant and Frank Durand III
(D) 10.8 Salary Continuation Plan for the Benefit of Patrick M. Ryan
(D) 10.9 Salary Continuation Plan for the Benefit of Jay G. Destribats
(E) 10.10 1988 Stock Option Plan
(L) 10.11 Employment Contract between Registrant and Thomas L. Nash
(A) 10.12 Directors' Deferred Compensation Plan
(B) 10.13 Lease Agreement between Jim Cramer and the Bank dated November
3, 1993
(L) 10.14 Lease Agreement between Carduners Property Partnership and the
Bank
(A) 10.15 Agreement between the Lalor Urban Renewal Limited Partnership
and the Bank dated October, 1994
(C) 10.16 Survivor Income Plan for the Benefit of Stephen F. Carman
(C) 10.17 Lease Agreement between Devon Inc. and the Bank dated as of
February 9, 1996
(F) 10.18 1997 Stock Option Plan
(L) 10.19 Employment contract between Registrant and Howard N. Hall
(L) 10.20 Employment contract between Registrant and Sarah J. Strout
(L) 10.21 Employment contract between Registrant and Nina D. Melker
</TABLE>
<PAGE>
INDEX TO EXHIBITS (continued)
<TABLE>
<CAPTION>
Exhibit
Number Description Page
-------------- ---------------------------------------------------------------- -----
<S> <C> <C> <C>
(L) 10.22 Employment contract between Registrant and Timothy J. Losch
(G) 10.23 Survivor Income Plan for the Benefit of Timothy J. Losch
(G) 10.24 Lease Agreement between the Ibis Group and the Bank dated July
1997
(H) 10.25 Lease agreement between Hilton Realty Co. of Princeton and the
Bank dated March 31, 1998
(H) 10.26 1994 Stock Option Plan
(J) 10.27 Lease agreement between Crestwood Construction and the Bank
dated May 25, 1998
(J) 10.28 Lease Agreement between Carduners Property Partnership and the
Bank
(K) 10.29 Yardville National Bank Employee Stock Ownership Plan
(L) 10.30 Lease agreement between Sycamore Street Associates and the Bank
dated October 30, 1998
(L) 21 List of Subsidiaries of the Registrant.
**23.1 Consent of KPMG LLP
23.2 Consent of Pepper Hamilton LLP (included in Exhibit 5)
**24 Power of Attorney
</TABLE>
- ------------
* To be filed by Amendment.
** Previously filed.
(A) Incorporated by reference to the Registrant's Annual Report on Form
10-KSB/A filed on July 25, 1995.
(B) Incorporated by reference to the Registrant's Registration Statement on
Form SB-2 (Registration No. 33-78050).
(C) Incorporated by reference to the Registrant's Annual Report on Form 10-KSB
for fiscal year ended December 31, 1995.
(D) Incorporate by reference to the Registrant's Annual Report on Form 10-K for
the fiscal year ended December 31, 1996.
(E) Incorporated by reference to the Registrant's Quarterly Report on Form 10-Q
for the fiscal quarter ended June 30, 1997, as amended by Form 10-Q/A
filed on August 15, 1997.
(F) Incorporated by reference to the Registrant's Registration Statement on
Form S-8 (Registration NO. 333-28193).
(G) Incorporated by reference to the Registrant's Annual Report on Form 10-K
for the fiscal year ended December 31, 1997.
(H) Incorporated by reference to the Registrant's Quarterly Report on Form 10-Q
for the fiscal quarter ended March 31, 1998, as amended by Form 10-Q/A
filed June 9, 1998.
(I) Incorporated by reference to the Registrant's Registration Statement on
Form S-2 (Registration Nos. 333-35061 and 333-35061-01).
(J) Incorporated by reference to the Registrant's Quarterly Report on Form 10-Q
for the fiscal quarter ended June 30, 1998.
(K) Incorporated by reference to the Registrant's Registration Statement of
Form S-8 (Registration No. 333-71741).
(L) Incorporated by reference to the Registrant's Annual Report on Form 10-K
for the fiscal year ended December 31, 1998, as amended by Form 10-K/A
filed on April 20, 1999.
<PAGE>
1,400,000 Shares
YARDVILLE NATIONAL BANCORP
Common Stock
UNDERWRITING AGREEMENT
May , 1999
LEGG MASON WOOD WALKER, INCORPORATED
ADVEST, INC.
c/o Legg Mason Wood Walker, Incorporated
100 Light Street
Baltimore, MD 21203-1476
Dear Ladies and Gentlemen:
Yardville National Bancorp, a New Jersey corporation (the "Company"),
proposes to sell to you as the underwriters named in Schedule I hereto (the
"Underwriters"), an aggregate of 1,400,000 shares (the "Firm Stock") of the
Company's common stock, no par value per share (the "Common Stock"). In
addition, the Company proposes to grant to the Underwriters an option to
purchase up to an additional 210,000 shares of Common Stock on the terms and for
the purposes set forth in Section 2 hereof (the "Option Stock"). The Firm Stock
and the Option Stock, if purchased, are hereinafter called the "Stock." This is
to confirm the agreement concerning the purchase of the Stock from the Company
by the Underwriters.
1. Company Representations and Warranties. The Company represents,
warrants and agrees that:
(a) A Registration Statement (as defined below) on Form S-2
(File No. 333-76647), with respect to the Stock (i) has been prepared
by the Company in conformity with the requirements of the Securities
Act of 1933, as amended (the "Act"), and the Rules and Regulations (as
defined below) of the Securities and Exchange Commission (the
"Commission") thereunder, (ii) has been filed by the Company with the
Commission under the Act and (iii) has become effective under the Act.
If any post-effective amendment to such Registration Statement has been
filed with the Commission prior to the execution and delivery of this
Agreement, the most recent such amendment has been declared effective
by the Commission. Copies of such Registration Statement as amended to
date (including all forms of the Preliminary Prospectus (as defined
below) heretofore delivered to you have been delivered by the Company
to you. The Commission has not issued any order suspending the
effectiveness of the Registration Statement or preventing or suspending
the use of any Preliminary Prospectus or Prospectus (as defined below),
and no proceedings for
-1-
<PAGE>
that purpose have been instituted or threatened. The Company has
complied in all material respects with all requests of the Commission
for additional information to be included in the Registration Statement
or in any Preliminary Prospectus or the Prospectus. As used in this
Agreement, "Effective Time" means the date and the time as of which
such Registration Statement, or the most recent post-effective
amendment thereto, if any, was declared effective by the Commission;
"Effective Date" means the date of the Effective Time; "Preliminary
Prospectus" means each prospectus included in such Registration
Statement, or amendments thereto, before the Effective Time and any
Prospectus filed with the Commission by the Company with the consent of
the Underwriters pursuant to Rule 424(a) of the Rules and Regulations;
"Registration Statement" means such registration statement, including
all exhibits and financial schedules thereto and any documents
incorporated by reference therein, as amended at the Effective Time,
including all information deemed to be a part thereof as of the
Effective Time pursuant to paragraph (b) of Rule 430A of the Rules and
Regulations; "Rules and Regulations" means the rules and regulations
adopted by the Commission under either the Act or the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), as applicable;
and "Prospectus" means the form of prospectus relating to the Stock as
first filed with the Commission by the Company with the consent of the
Underwriters pursuant to Rule 424(b) ("Rule 424(b)") of the Rules and
Regulations. Reference made herein to any Preliminary Prospectus or to
the Prospectus, as amended or supplemented, shall include all documents
and information incorporated by reference therein. If the Company has
filed an abbreviated registration statement to register additional
Common Stock pursuant to Rule 462(b) under the Act (the "Rule 462
Registration Statement"), then any reference herein to the term
"Registration Statement" shall be deemed to include such Rule 462
Registration Statement.
(b) The Registration Statement contains, and any
post-effective amendment to the Registration Statement filed with the
Commission after the Effective Time, the Prospectus and the Prospectus
as amended or supplemented will contain, in all material respects, all
statements which are required by the Act and the Rules and Regulations.
On the Effective Date, the Registration Statement did not, and any
post-effective amendment to the Registration Statement filed with the
Commission after the Effective Time, the Prospectus and the Prospectus
as amended or supplemented will not, contain any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading;
provided that the Company makes no representation or warranty 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 by or on behalf of any Underwriter
specifically for use in the preparation thereof. The documents which
are incorporated by reference in any Preliminary Prospectus or the
Prospectus or from which information is so incorporated by reference,
when they became effective or were filed with the Commission, as the
case may be (or, if an amendment with respect to any such documents was
filed or became effective, when such amendment was filed or became
effective), complied in all material respects with the requirements of
the Act or the Exchange Act, as applicable, and the Rules and
Regulations
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<PAGE>
and did not contain any untrue statement of material fact or omit to
state a material fact required to be stated therein, or necessary to
make the statements therein, in light of the circumstances under which
they were made, not misleading.
(c) Neither the Company nor any of its subsidiaries (as
defined in Section 11) is in violation of its corporate charter or
by-laws or in default under any agreement, indenture or instrument to
which the Company or any of its subsidiaries is a party or to which any
of them is bound, or in violation of any law, rule or regulation, the
effect of which violation or default would be material to the Company
and its subsidiaries taken as a whole; the execution, delivery and
performance of this Agreement will not conflict with, result in the
creation or imposition of any lien, charge or encumbrance upon any of
the assets of the Company or any of its subsidiaries pursuant to the
terms of, or constitute a default under, any agreement, indenture or
instrument, or result in a violation of the corporate charter or
by-laws of the Company or any of its subsidiaries or any order, rule or
regulation of any court or governmental agency having jurisdiction over
the Company, any of its subsidiaries or any of their properties, the
effect of which conflict, lien, default or violation would be material
to the Company and its subsidiaries taken as a whole; and except as
required by the Act, the Exchange Act, applicable state securities laws
and the National Association of Securities Dealers, Inc., no consent,
authorization or order of or filing or registration with, any court or
governmental agency (including the Comptroller of the Currency, the
Board of Governors of the Federal Reserve System, the Federal Deposit
Insurance Corporation and any state regulatory agency having
jurisdiction over the Company or any of its subsidiaries) is required
for the execution, delivery and performance of this Agreement by the
Company.
(d) Subsequent to the respective dates as of which information
is given in the Registration Statement and the Prospectus and except as
described therein, neither the Company nor its subsidiaries has
incurred any material liability or obligation, direct or contingent, or
entered into any material transaction (other than loans made in the
ordinary course of business), whether or not in the ordinary course of
its business, and there has not been any material change on a
consolidated basis in the capital stock, or any increase in the
short-term and long-term debt, or any issuance of options, warrants,
convertible securities or other rights to purchase capital stock of the
Company or its subsidiaries (except for options granted under the
Company's existing stock option plans) or any material adverse change
in, or any adverse development which materially affects, the business,
franchises, properties, condition (financial or other), results of
operations or prospects of the Company or the Company and its
subsidiaries taken as a whole.
(e) Each of the Company and its subsidiaries holds good and
marketable title to, or valid and enforceable leasehold interests in,
all items of real and personal property which are material to the
business of the Company and its subsidiaries taken as a whole, free and
clear of all liens, encumbrances and claims which might materially
interfere with the conduct of the business of the Company or the
Company and its subsidiaries taken as a whole, and the Company and its
subsidiaries own or have the right to use in accordance with the terms
-3-
<PAGE>
thereof all licenses, permits, consents, approvals or authorizations of
and certificates from any public or governmental authority that are
necessary for the ownership, maintenance and operation of the
properties, assets and business operations of the Company or the
Company and its subsidiaries taken as a whole, and that, if not
obtained, could have a material adverse effect on the Company or the
Company and its subsidiaries taken as a whole. Except as described in
the Prospectus, each of the foregoing is valid and in full force and
effect and no event has occurred and is continuing which permits, or
after notice or lapse of time or both would permit, modifications or
terminations of the foregoing which, in the aggregate, would have a
material adverse effect on the business, assets, operations or
financial condition of the Company or the Company and its subsidiaries
taken as a whole. Each of the Company and its subsidiaries carries
insurance in such amounts and covering such risks as is adequate for
the conduct of its business and the value of its properties.
(f) KPMG LLP, whose report appears in the Prospectus, are
independent public accountants as required by the Act and the Rules and
Regulations.
(g) At the date or dates indicated in the Prospectus, the
Company had the duly authorized and outstanding capitalization set
forth under the caption "Capitalization" in the Prospectus and will
have, as of the issuance of the Firm Shares on the First Delivery Date,
the as adjusted capitalization set forth under that heading. All the
authorized shares of Common Stock, including the Stock, have been duly
authorized, and all the issued and outstanding shares of Common Stock
are, and all the shares of the Stock, when issued, delivered and paid
for in the manner described in the Prospectus on the First Delivery
Date and the Second Delivery Date, if any (each as hereinafter
defined), will be, validly issued and outstanding, fully paid and
nonassessable with no personal liability attaching to the ownership
thereof. None of the shares of the Stock to be sold by the Company when
issued, sold and delivered in accordance with this Agreement will be
subject to any lien, claim, encumbrance, preemptive rights or any other
claim of any third party; and the Stock will conform to the description
thereof contained in the Registration Statement under the caption
"Description of Capital Stock." On the Effective Date, the First
Delivery Date and Second Delivery Date, if any, there will be no
options or warrants or other outstanding rights to purchase, agreements
or obligations to issue or agreements or other rights to convert or
exchange any obligation or security into, capital stock of the Company
or securities convertible into or exchangeable for capital stock of the
Company, except as described in the Prospectus or the grant of options
after the date of the Prospectus under option plans of the Company. The
information in the Prospectus insofar as it relates to all outstanding
options and other rights to acquire securities of the Company as of the
Effective Date and immediately prior to the First Delivery Date and the
Second Delivery Date, if any, is complete and correct in all material
respects. All previous offers and sales of the outstanding shares of
capital stock of the Company were made in conformity with applicable
federal, state or foreign securities laws. The certificates
representing the Stock are in proper legal form under, and conform in
all material respects to the requirements of, New Jersey corporate law.
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<PAGE>
(h) The Common Stock (including the Stock) is registered
pursuant to Section 12(g) of the Exchange Act. The issued and
outstanding shares of Common Stock are included for quotation on the
Nasdaq National Market. Neither the Company nor, to the knowledge of
the Company, any other person has taken any action designed to cause,
or likely to result in, the termination of the registration of the
Common Stock under the Exchange Act. The Company has not received any
notification from the Commission or the National Association of
Security Dealers, Inc. that either that agency or entity is
contemplating terminating such registration or inclusion.
(i) Each of the Company and its subsidiaries has been duly
incorporated, and is validly existing and in good standing under the
laws of its respective jurisdiction of incorporation. Each of the
Company and its subsidiaries is duly qualified to do business and is in
good standing as a foreign corporation in each jurisdiction in which
its ownership of property or the conduct of its business requires such
qualification (except where the failure so to qualify would not have a
material adverse effect on the Company and its subsidiaries taken as a
whole) and has all power and authority necessary to own or hold its
properties and to conduct the business in which it is engaged. All of
the outstanding shares of capital stock of the subsidiaries of the
Company have been duly authorized and validly issued, are fully paid
and nonassessable, and are owned by the Company directly, or indirectly
through wholly-owned subsidiaries, free and clear of any lien, pledge
or encumbrance. The Yardville National Bank, Yardville National
Investment Corporation, Yardville Capital Trust, YNB Realty, Inc., YNB
Real Estate Holding Co., Inc., YNB Financial Services, Inc.,
Nancy-Beth, Inc., Jim Mary, Inc. and Brendan, Inc. are the only direct
or indirect subsidiaries of the Company.
(j) Except as described in the Registration Statement and the
Prospectus, there is no material litigation or governmental proceeding
pending or, to the knowledge of the Company, threatened against the
Company or any of its subsidiaries which might result in any material
adverse change in the business, properties, condition (financial or
other), results of operations or prospects of the Company and its
subsidiaries taken as a whole or which is required to be disclosed in
the Registration Statement and the Prospectus.
(k) The consolidated financial statements and schedules
(including the related notes) of the Company and its subsidiaries
included or incorporated by reference in the Registration Statement,
any Preliminary Prospectus or 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, except as set forth in the
Registration Statement and the Prospectus, on a consistent basis
throughout the periods involved except as specified therein. The
financial information included in the Prospectus under the captions
"Summary Financial Data" and "Selected Historical Consolidated
Financial Data" present fairly the information shown therein and has
been compiled on a basis consistent with that of the audited financial
statements included in the Prospectus.
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<PAGE>
(l) There is no contract or other document which is required
by the Act or by the Rules and Regulations to be described in the
Registration Statement, any Preliminary Prospectus or the Prospectus,
to be filed as an exhibit to the Registration Statement, or to be
incorporated by reference into the Prospectus which has not been
described, filed or incorporated by reference as required.
(m) There are no holders of securities of the Company who, by
reason of the filing of the Registration Statement under the Act or the
execution by the Company of this Agreement, have the right (other than
a right which has been waived or satisfied) to request or demand that
the Company register under the Act securities held by them except as
set forth in the Registration Statement and the Prospectus.
(n) The Company has not taken within the 90 day period
preceding the date of this Agreement, and agrees that during the 90 day
period following the date of this Agreement it will not take, directly
or indirectly, any action which might reasonably be expected to cause
or result in stabilization or manipulation of the price of the Common
Stock of the Company.
(o) The Company has all corporate power and authority
necessary to execute and deliver this Agreement and to perform its
obligations hereunder. This Agreement has been duly authorized,
executed and delivered by the Company and constitutes the valid and
legally binding obligation of the Company, enforceable against the
Company in accordance with its terms, except as enforcement may be
limited by bankruptcy, insolvency, reorganization, moratorium or other
similar laws relating to creditors' rights generally or by equitable
principles (whether considered in an action at law or in equity) and
except as the rights to indemnification or contribution hereunder may
be limited by federal or state securities laws.
(p) The conditions for use of Form S-2, set forth in the
General Instructions thereto, have been satisfied.
2. Purchase of the Stock by the Underwriters. On the basis of the
representations and warranties contained in, and subject to the terms and
conditions of, this Agreement, the Company agrees to sell the Firm Stock to the
Underwriters, and each of the Underwriters, severally and not jointly, agrees to
purchase the number of shares of the Firm Stock set forth opposite that
Underwriter's name in Schedule I hereto.
In addition, the Company grants to the Underwriters, solely for the
purpose of covering over-allotments in the sale of the Firm Stock, an option to
purchase all or any portion of the Option Stock exercisable as provided in
Section 4 hereof. Shares of Option Stock shall be purchased severally for the
account of each Underwriter in the proportion that the number of shares of Firm
Stock set forth opposite the name of such Underwriter in Schedule I hereto bears
to the total number of shares of the Firm Stock to be purchased by the
Underwriters pursuant to this Agreement, except that the respective purchase
obligations of each Underwriter shall be adjusted so that no Underwriter shall
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<PAGE>
be obligated to purchase Option Stock other than in full share amounts. The
price of both the Firm Stock and the Option Stock to be paid by the Underwriters
to the Company shall be $_______ per share.
The Underwriters are to make a public offering of the Firm Stock and
such of the Option Stock as they may determine on or as soon after the Effective
Date as you deem it advisable for them so to do. The Stock is to be initially
offered to the public at the public offering price set forth on the cover page
of the Prospectus (such price being hereinafter called the "public offering
price"). You may from time to time increase or decrease the public offering
price after the initial public offering to such extent as you, in your sole
discretion, deem advisable. You may enter into one or more agreements as you, in
your sole discretion deem advisable, with one or more broker-dealers who shall
act as dealers in connection with such public offering.
3. Default by the Underwriters. If, on the First Delivery Date or the
Second Delivery Date, as the case may be, any Underwriter defaults in the
performance of its obligations under this Agreement and the total number of
shares of the Firm Stock or Option Stock, as the case may be, which the
defaulting Underwriter or Underwriters agreed but failed to purchase does not
exceed 15% of the number of shares of Firm Stock or Option Stock, as the case
may be, covered hereby, the remaining non-defaulting Underwriters shall be
obligated, severally, to purchase the Firm Stock or the Option Stock, as the
case may be, which the defaulting Underwriter agreed but failed to purchase on
such date in the respective proportions which the number of shares of the Firm
Stock set forth opposite the name of each remaining non-defaulting Underwriter
in Schedule I hereto bears to the total number of shares of the Firm Stock set
forth opposite the names of all the remaining non-defaulting Underwriters in
Schedule I hereto.
If the aggregate number of shares of Firm Stock or Option Stock, as the
case may be, with respect to which such default shall occur exceeds 15% of the
Firm Stock or Option Stock, as the case may be, covered hereby, the remaining
non-defaulting Underwriters, or those other underwriters satisfactory to the
non-defaulting Underwriters 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 Firm Stock or all the Option Stock, as the case may be, to be purchased
under this Agreement on such date. If the remaining Underwriters or other
underwriters satisfactory to the remaining Underwriters do not elect to purchase
the Stock which the defaulting Underwriter or Underwriters agreed but failed to
purchase, then 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 as set forth in Section 5(l)),
unless the Company and the remaining non-defaulting Underwriters make an
election in writing within 24 hours after the First Delivery Date or the Second
Delivery Date, as the case may be, to proceed with the offering contemplated by
this Agreement notwithstanding such default. In the event that the Company and
the remaining non-defaulting Underwriters so elect, each such remaining
non-defaulting Underwriter shall continue to be obligated, upon the conditions
set forth in this Agreement and subject to the provisions of the next paragraph,
to purchase (severally and not jointly) the number of shares of Firm Stock and
Option Stock, as the case may be, provided for by Section 2 hereof.
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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 Stock of a defaulting or
withdrawing Underwriter, or the Company and the remaining non-defaulting
Underwriters elect to proceed with the offering contemplated hereby
notwithstanding such default, either the remaining Underwriters or the Company
may postpone the First Delivery Date or the Second Delivery Date, as the case
may be, 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 agreement, and to file promptly any necessary amendments or
supplements to the Registration Statement or the Prospectus.
4. Delivery of Stock. Delivery of and payment for the Firm Stock shall
be made at the offices of Legg Mason Wood Walker, Incorporated, 100 Light
Street, Baltimore, Maryland 21203 at 10:00 A.M., Baltimore, Maryland time, on
the third business day following the date of this Agreement or at such later
date as shall be determined by agreement between the Underwriters and the
Company. This date and time are sometimes referred to as the "First Delivery
Date". On the First Delivery Date, the Company shall deliver the certificates
representing the Firm Stock to the Underwriters against payment to or upon the
order of the Company of the purchase price by certified or official bank check
or checks payable in next-day funds settled through the Baltimore, Maryland
Clearing House. Time shall be of the essence, and delivery at the time and place
specified pursuant to this Agreement is a further condition of the obligation of
each Underwriter hereunder. Upon delivery, the Firm Stock shall be registered in
such names and in such denominations as the Underwriters shall request in
writing not less than two full business days prior to the First Delivery Date.
For the purpose of expediting the checking and packaging of the Firm Stock, the
Company shall make the certificates representing the Firm Stock available for
inspection by the Underwriters in New York, New York, not later than 2:00 P.M.,
New York City time, on the business day prior to the First Delivery Date. The
First Delivery Date and the place of delivery of and payment for the Firm Stock
may be varied by agreement between the Company and the Underwriters.
At any time on or before the thirtieth day after the date on which this
Agreement becomes effective, the option granted in Section 2 may be exercised by
written notice being given by the Underwriters to the Company. Such notice shall
set forth the aggregate number of shares of Option Stock as to which the option
is being exercised, the names in which the shares of Option Stock are to be
registered, the denominations in which the shares of Option Stock are to be
issued and the date and time, as determined by the Underwriters, when the shares
of Option Stock are to be delivered (the "Second Delivery Date"); provided,
however, that the Second Delivery Date shall not be earlier than the First
Delivery Date nor earlier than the second business day after the date on which
the option shall have been exercised nor later than the third business day after
the date on which the option shall have been exercised.
Delivery of and payment for the Option Stock shall be made at the
offices of Legg Mason Wood Walker, Incorporated, 100 Light Street, Baltimore,
Maryland 21203 at 10:00 A.M., Baltimore, Maryland time, on the Second Delivery
Date. On the Second Delivery Date, the Company shall
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<PAGE>
deliver the certificates representing the Option Stock to the Underwriters
against payment to or upon the order of the Company for the purchase price by
certified or official bank check or checks payable in next-day funds settled
through the Baltimore, Maryland Clearing House. Time shall be of the essence,
and delivery at the time and place specified pursuant to this Agreement is a
further condition of the obligation of each Underwriter hereunder. Upon
delivery, the Option Stock shall be registered in such names and in such
denominations as the Underwriters shall request in the aforesaid written notice.
For the purpose of expediting the checking and packaging of the Option Stock,
the Company shall make the certificates representing the Option Stock available
for inspection by the Underwriters in New York, New York, not later than 2:00
P.M., New York City time, on the business day prior to the Second Delivery Date.
The Second Delivery Date and the place of delivery of and payment for the Option
Stock may be varied by agreement between the Company and the Underwriters.
5. Covenants. The Company agrees:
(a) To furnish promptly to each of the Underwriters and to
counsel for the Underwriters a signed copy of the Registration
Statement as originally filed, and each amendment thereto filed with
the Commission, including all consents and exhibits filed therewith and
any document filed under the Exchange Act and deemed to be incorporated
by reference into any Preliminary Prospectus or the Prospectus;
(b) To deliver promptly to the Underwriters and to each
Underwriter such number of conformed copies of the Registration
Statement as originally filed and each amendment thereto (in each case
excluding exhibits other than this Agreement), and of each Preliminary
Prospectus, the Prospectus and any amended or supplemented Prospectus
as the Underwriters may reasonably request;
(c) To file promptly with the Commission the Prospectus
pursuant to Rule 424(b)(l) of the Rules and Regulations (or, if
consented to by the Underwriters, pursuant to Rule 424(b)(4)) and any
amendment to the Registration Statement or the Prospectus or any
supplement to the Prospectus and file any document under the Exchange
Act before the termination of the offering of the Stock by the
Underwriters if such document would be deemed to be incorporated by
reference into any Preliminary Prospectus or the Prospectus that may,
in the reasonable judgment of the Company and the Underwriters, be
required by the Act or requested by the Commission and approved by the
Underwriters;
(d) Prior to filing with the Commission any Preliminary
Prospectus, any amendment to the Registration Statement, any supplement
to the Prospectus, any Prospectus pursuant to Rule 424 of the Rules and
Regulations, or any other document under the Exchange Act if such
document would be deemed to be incorporated by reference into any
Preliminary Prospectus or the Prospectus, to furnish a copy thereof to
the Underwriters and counsel for the Underwriters and obtain the
consent of the Underwriters to the filing, which consent shall not be
unreasonably withheld;
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(e) To advise the Underwriters promptly (i) when any
post-effective amendment to the Registration Statement becomes
effective, (ii) of any request or proposed request by the Commission
for an amendment to the Registration Statement, a supplement to the
Prospectus or for any additional information, (iii) of the issuance by
the Commission of any stop order suspending the effectiveness of the
Registration Statement or preventing or suspending the use of any
Preliminary Prospectus or the Prospectus or the initiation or threat of
any stop order proceeding, (iv) of receipt by the Company of any
notification with respect to the suspension of the qualification of the
Stock for sale in any jurisdiction or the initiation or threat of any
proceeding for that purpose, and (v) of the happening of any event
which makes untrue any statement of a material fact made in the
Registration Statement or the Prospectus, or which requires the making
of a change in the Registration Statement or the Prospectus in order to
make any material statement therein not misleading;
(f) If the Commission shall issue a stop order suspending the
effectiveness of the Registration Statement, to make every reasonable
effort to obtain the lifting of that order at the earliest possible
time;
(g) As soon as practicable after the Effective Date, but not
later than the 45th day following the end of the fiscal quarter first
occurring after the first anniversary of the Effective Date, to make
generally available to its security holders and to deliver to the
Underwriters an earning statement, conforming with the requirements of
Section 11(a) of the Act, covering a period of at least twelve months
beginning after the effective date of the Registration Statement;
(h) For a period of five years from the Effective Date, to
furnish to the Underwriters copies of all public reports and all
reports and financial statements furnished by the Company to the
principal national securities exchange or over-the-counter market upon
which its Common Stock may be listed or traded pursuant to requirements
of or agreements with such exchange or market or filed with the
Commission pursuant to the Exchange Act or any rule or regulation of
the Commission thereunder;
(i) To apply the net proceeds of the sale of the Stock as set
forth in the Prospectus;
(j) To cause each officer and each director of the Company and
use its best efforts to cause each shareholder who owns beneficially
two percent or more of the outstanding Common Stock of the Company to
furnish to you, on or prior to the date of this Agreement, a letter or
letters, substantially in the form attached hereto as Exhibit 1 hereto
(the "Lock-up Letters"), pursuant to which each such person shall agree
not to sell or otherwise dispose of, or offer or contract to sell any
shares of Common Stock or any securities convertible with respect to
the Common Stock for 180 days after the Effective Date, except with
your prior written consent (which consent shall not be unreasonably
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withheld), and to impose stop transfer instructions with the transfer
agent for the Company in accordance with the Lock-up Letters;
(k) Without the prior written consent of the Underwriters
(which consent shall not be unreasonably withheld), not to sell or
otherwise dispose of, or offer or contract to sell any shares of Common
Stock or sell or grant any rights, options, warrants or securities
convertible with respect to Common Stock within 180 days after the
Effective Date except for (x) the sale of the Stock to the Underwriters
pursuant to this Agreement, (y) the grant or exercise of options
pursuant to the Company's stock option plans as described in the
Registration Statement and Prospectus, and (z) the issuance by the
Company of its securities in connection with a merger, acquisition or
similar transaction.
(l) To pay (i) the costs incident to the authorization,
issuance, sale and delivery of the Stock and any taxes payable in that
connection; (ii) the costs incident to the preparation, printing and
filing under the Act, and mailing and delivery, of the Registration
Statement and any amendments and exhibits thereto, including fees
payable to the Commission; (iii) the costs of printing and distributing
the Registration Statement as originally filed and each amendment and
post-effective amendment thereof (including exhibits), any Preliminary
Prospectus, the Prospectus and any amendment or supplement to the
Prospectus as provided in this Agreement and the costs of printing and
distributing this Agreement and other underwriting documents, including
Underwriters' Questionnaires, Underwriters' Powers of Attorney,
Agreements Among Underwriters and Selected Dealer Agreements; (iv) the
costs of the listing or qualification of the Stock on the Nasdaq
National Market and related filing fees with the National Association
of Securities Dealers, Inc.; (v) the expenses associated with the
issuance, transfer and delivery of the Stock including issue and
transfer taxes, if any; (vi) the travel expenses of the Company in
connection with informational meetings and presentations for the
brokerage community and institutional investors; (vii) reimbursement of
the legal fees and expenses of counsel to the Underwriters in an amount
not to exceed $75,000; (viii) the costs associated with settlement in
same day funds, if desired by the Company; (ix) registrar and transfer
agent costs and fees; (x) the fees and expenses, if any, of qualifying
the Stock under the securities laws of the states or other
jurisdictions where the Stock is to be offered or sold; (xi) the costs
of printing certificates for the Stock; (xii) the reasonable costs of
advertizing the offering, including the placement of "tombstone"
advertisements; and (xiii) all other costs and expenses incident to the
performance of the Company's obligations under this Agreement. It is
understood, however, that, except as provided in this Section and in
Section 6 hereof, the Underwriters shall pay their own costs and
expenses, including the fees and expenses of their counsel. If the sale
of the Stock provided for herein is not consummated (x) by reason of
acts of the Company, or the Underwriters with cause, pursuant to
Section 7(a) hereof which prevent this Agreement from becoming
effective, (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) for any other reason,
including the nonfulfillment of any condition of the Underwriters'
obligations set forth in Section 7(b) or Section 8 of this Agreement
(unless
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<PAGE>
such failure to perform such agreement or fulfill such condition is due
to the default without cause of any Underwriter or its counsel), then
the Company shall reimburse the several Underwriters for all
reasonable, accountable 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 Stock, but in an amount
not to exceed $100,000 in the aggregate; and
(m) Upon and subject to the delivery of and payment for the
Firm Stock pursuant to Section 4 of this Agreement, the Company will
pay to the Underwriters a fee in the amount of $100,000 in
consideration of their financial advisory services.
6. Indemnification and Contribution. (a) The Company shall indemnify
and hold harmless each Underwriter and each person, if any, who controls any
Underwriter within the meaning of the Act from and against any loss, claim,
damage or liability, joint or several, and any action in respect thereof, to
which that Underwriter or controlling person may become subject, under the Act
or otherwise, insofar as such loss, claim, damage, liability or action arises
out of, or is based upon, any untrue statement or alleged untrue statement of a
material fact contained in any Preliminary Prospectus, the Registration
Statement, the Prospectus or the Registration Statement or Prospectus as amended
or supplemented, or in any blue sky application or other document executed by
the Company specifically for the purpose or based upon written information
furnished by the Company filed in any state or other jurisdiction in order to
qualify any or all of the Stock under the securities laws thereof (any such
application, document or information being hereinafter referred to as a "Blue
Sky Application"), or arises out of, or is based upon, the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and shall reimburse
each Underwriter and each such controlling person for any legal and other
expenses reasonably incurred by that Underwriter or controlling person in
investigating or defending or preparing to defend against any such loss, claim,
damage, liability or action, notwithstanding the possibility that payments for
such expenses might later be held to be improper in which case the person
receiving them shall promptly refund them; provided, 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 any Preliminary
Prospectus or in the Registration Statement or the Prospectus or any amendment
or supplement thereto or in any Blue Sky Application in reliance upon and in
conformity with written information furnished to the Company through the
Underwriters by or on behalf of any Underwriter specifically for inclusion
therein; and provided further, that, as to any Preliminary Prospectus, this
indemnity agreement shall not inure to the benefit of any Underwriter or any
person controlling that Underwriter on account of any loss, claim, damage,
liability or action arising from the sale of Stock to any person by that
Underwriter if that Underwriter failed to send or give a copy of the Prospectus,
as the same may be amended or supplemented, to that person within the time
required by the Act, and the untrue statement or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact in such
Preliminary Prospectus was corrected in the Prospectus, unless such failure
resulted from noncompliance by the Company with Section 5(b), 5(c) or 5(d)
hereof. The foregoing indemnity
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<PAGE>
agreement is in addition to any liability which the Company may otherwise have
to any Underwriter or any controlling person of that Underwriter.
(b) Each Underwriter, severally but not jointly, shall indemnify and
hold harmless the Company, each of its directors, each of its officers who
signed the Registration Statement, and any person who controls the Company
within the meaning of the Act, from and against any loss, claim, damage or
liability, or any action in respect thereof to which the Company or any such
director, officer or controlling person may become subject, under the Act or
otherwise, insofar as such loss, claim, damage, liability or action arises out
of, or is based upon, any untrue statement or alleged untrue statement of a
material fact contained in any Preliminary Prospectus, the Registration
Statement, the Prospectus or the Registration Statement or Prospectus as amended
or supplemented, or in any Blue Sky Application, or arises out of, or is based
upon, the omission or alleged omission to state therein a 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 furnished to the Company by or on behalf of
that Underwriter specifically for inclusion therein, and shall reimburse the
Company for any legal and other expenses reasonably incurred by the Company or
any such director, officer or controlling person in investigating or defending
or preparing to defend against any such loss, claim, damage, liability or
action, notwithstanding the possibility that payments for such expenses might
later be held to be improper, in which case the person receiving them shall
promptly refund them. The foregoing indemnity agreement is in addition to any
liability which any Underwriter may otherwise have to the Company, or any of its
directors, officers or controlling persons.
(c) Promptly after receipt by an indemnified party under this Section 6
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 6, notify the indemnifying party in writing of the
claim or the commencement of that action, provided 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 6. 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 reasonably 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 6 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 that the
Underwriters shall have the right to employ separate counsel to represent those
Underwriters and their respective 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 6 if, in the
reasonable judgment of the Underwriters, it is advisable for those Underwriters
and controlling persons to be represented by separate counsel, and in that event
the fees and expenses of such separate counsel shall be paid by the Company. It
is understood,
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<PAGE>
however, that the Company shall not, in connection with any one such claim or
action (or separate but substantially similar or related claims or actions in
the same jurisdiction) arising out of the same general allegations or
circumstances, be liable for the reasonable fees and expenses of more than one
such separate firm of attorneys for all such Underwriters and their respective
controlling persons. Such firm shall be designated in writing by the
Underwriters. An indemnifying party shall not be obligated to reimburse an
indemnified party hereunder for any amount paid to effect settlement of any
action or claim unless such settlement shall have been consented to in writing
by the indemnifying party, but if settled with such consent or if there be a
final judgment for the plaintiff, the indemnifying party agrees to indemnify the
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 6 shall for any
reason be unavailable to an indemnified party under Section 6(a) or 6(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 Stock 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 Stock (before
deducting expenses) received by the Company bear to the total underwriting
discounts and commissions received by the Underwriters with respect to such
offering, 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 were to be determined by pro
rata allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take into account
the equitable considerations referred to herein. The amount paid or payable by
an indemnified party as a result of the loss, claim, damage or liability, or
action in respect thereof referred to above in this Section shall be deemed to
include, for purposes of this Section, any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or defending
any such action or claim. Notwithstanding the provisions of this Section, no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Stock underwritten by it and distributed
to the public was offered to the public exceeds that 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
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<PAGE>
omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the 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 are several in proportion to their respective underwriting
obligations and not joint. Each party entitled to contribution agrees that upon
the service of a summons or other initial legal process upon it in any action
instituted against it in respect to which contribution may be sought, it shall
promptly give written notice of such service to the party or parties from whom
contribution may be sought, but the omission to so notify such party or parties
of any such service shall not relieve the party from whom contribution may be
sought for any obligation it may have otherwise than under this Section.
(e) The Underwriters severally confirm that the statements with respect
to the public offering of the Stock set forth under the caption "Underwriting"
in the Prospectus are correct and constitute the written information furnished
by or on behalf of the Underwriters referred to in Sections 1(b), 6(a) and 6(b)
hereof.
(f) The indemnity and contribution agreements contained in this
Paragraph and the representations, warranties and agreements of the Company in
Sections 1 and 5 shall survive the delivery of the Stock and shall remain in
full force and effect, regardless of any termination or cancellation of this
Agreement or any investigation made by or on behalf of any indemnified party.
7. Effective Date and Termination. (a) This Agreement shall become
effective at 10:00 A.M., New York City time, on the first full business day
following the date on which this Agreement is executed, or at such earlier time
after the Registration Statement becomes effective as the Underwriters shall
release the Firm Stock for public offering. The Underwriters shall notify the
Company immediately after they have taken any action which causes this Agreement
to become effective. Until this Agreement is effective, it may be terminated by
the Company by notice to the Underwriters or by the Underwriters by notice to
the Company. For purposes of this Agreement, the release of the public offering
of the Firm Stock shall be deemed to have been made when the Underwriters make,
by telegram or otherwise, firm offers of the Firm Stock to securities dealers or
release for publication a newspaper advertisement relating to the Firm Stock,
whichever occurs first.
(b) The obligations of the Underwriters hereunder may be terminated by
the Underwriters, in their absolute discretion, by notice given to and received
by the Company prior to delivery of and payment for the Stock, if prior to that
time (i) trading in securities generally on the New York Stock Exchange, the
American Stock Exchange, the Nasdaq National Market, or the over-the-counter
market shall have been suspended, or trading in the Common Stock is suspended
for two consecutive hours or more, or minimum prices shall have been established
on either of such exchanges or such market, (ii) a general banking moratorium
shall have been declared by federal or New Jersey state authorities, (iii) the
United States becomes engaged in hostilities or there is a significant
escalation of existing hostilities involving the United States or there is a
declaration of a national emergency or war by the United States, (iv) there
shall have occurred any material adverse change in the general economic,
political or financial conditions in the United States or elsewhere
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<PAGE>
or any other substantial national or international calamity or emergency and, in
the reasonable judgment of the Underwriters, the effect of any such adverse
change, calamity or emergency makes it impractical or inadvisable to proceed
with the payment for and delivery of the Stock, (v) the enactment, publication,
decree or other promulgation of any federal or state statute, regulation, rule
or order of any court or other governmental authority which in the opinion of
the Underwriters materially and adversely affects or will materially and
adversely affect the prospects, business or operations of the Company; (vi) the
Company shall have failed, refused or been unable, at or prior to the First
Delivery Date or the Second Delivery Date, to perform any agreement on its part
to be performed hereunder, or (vii) any other condition of the obligation of the
Underwriters hereunder is not fulfilled.
(c) Any termination of this Agreement pursuant to this Section 7 shall
be without liability of any party to any other party, except as provided in
Sections 5(l) and 6 hereof.
8. Additional Terms and Conditions. The respective obligations of the
Underwriters hereunder are subject to the accuracy, when made and on the First
Delivery Date and the Second Delivery Date, if any, of the representations and
warranties of the Company contained herein, to performance by the Company of its
obligations hereunder, and to each of the following additional terms and
conditions:
(a) The Prospectus shall have been timely filed with the
Commission in accordance with Section 5(c) of this Agreement; at or
before the First Delivery Date and the Second Delivery Date, if any, no
stop order suspending effectiveness of the Registration Statement shall
have been issued and prior to that time no stop order proceeding shall
have been initiated or threatened by the Commission; any request of the
Commission for inclusion of additional information in the Registration
Statement or the Prospectus or otherwise shall have been complied with;
and the Company shall not have filed with the Commission the Prospectus
or any amendment or supplement to the Registration Statement or the
Prospectus without the consent of the Underwriters.
(b) No Underwriter shall have discovered and disclosed to the
Company on or prior to the First Delivery Date or the Second Delivery
Date, if any, that the Registration Statement or the Prospectus or any
amendment or supplement thereto contains an untrue statement of a fact
which, in the reasonable opinion of Morgan, Lewis & Bockius LLP,
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 Stock
and the form of the Registration Statement and the Prospectus, other
than financial statements and other financial data, and all other legal
matters relating to this Agreement and the transactions contemplated
hereby shall be reasonably satisfactory in all respects to Morgan,
Lewis & Bockius LLP,
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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) Pepper Hamilton LLP, counsel for the Company, shall have
furnished to the Underwriters their opinion addressed to the
Underwriters and dated the First Delivery Date and the Second Delivery
Date, if any, as counsel to the Company to the effect that:
(i) The Company and its subsidiaries are validly
existing and in good standing under the laws of their
respective jurisdictions of incorporation, and to such
counsel's actual knowledge, each of the Company and its
subsidiaries has all corporate power and authority necessary
to own its properties and conduct the business in which it is
engaged as described in the Prospectus;
(ii) To such counsel's actual knowledge, The
Yardville National Bank, Yardville National Investment
Company, Yardville Capital Trust, YNB Realty, Inc., YNB Real
Estate Holding Co., Inc., YNB Financial Services, Inc.,
Nancy-Beth, Inc., Jim Mary, Inc. and Brendan, Inc. are the
only subsidiaries of the Company and, except as may be
disclosed in the Registration Statement and the Prospectus, to
such counsel's actual knowledge, all outstanding shares of
capital stock of The Yardville National Bank, Yardville
National Investment Company, Yardville Capital Trust, YNB
Realty, Inc., YNB Real Estate Holding Co., Inc., YNB Financial
Services, Inc., Nancy-Beth, Inc., Jim Mary, Inc. and Brendan,
Inc. are owned, directly or indirectly, by the Company, free
and clear of any lien, pledge and encumbrance or any claim of
any third party and are duly authorized, validly issued, fully
paid and non-assessable; provided, however, that certain trust
preferred securities of Yardville Capital Trust are publicly
held and certain employees of The Yardville National Bank own
shares of its preferred stock;
(iii) The Stock has been duly authorized; upon
payment for the Stock pursuant to the terms of this Agreement,
the Stock, will be validly issued, fully paid and
non-assessable, with no personal liability attaching to the
ownership thereof;
(iv) Other than options granted under the Company's
stock option plans described in the Registration Statement and
the Prospectus and the option of the Underwriters to purchase
the Option Stock, there are no preemptive or other rights to
subscribe for or to purchase, nor is there any restriction
upon the voting or transfer of, any shares of the Common
Stock, including the Stock, pursuant to the Company's
corporate charter or by-laws or any agreement or other
instrument known to such counsel;
(v) The Stock conforms as to legal matters to the
statements concerning the Common Stock of the Company
contained in the Prospectus under the caption "Description of
Capital Stock;"
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<PAGE>
(vi) The Registration Statement, all post-effective
amendments thereto, if any, and a Rule 462 Registration
Statement, if any, are effective under the Act; any required
filing of the Prospectus pursuant to Rule 424(b) has been made
within the time period required by Rule 424(b); to such
counsel's actual knowledge, no stop order suspending the
effectiveness of the Registration Statement has been issued
and no proceeding for that purpose is pending or threatened by
the Commission;
(vii) The Registration Statement and the Prospectus,
including any document incorporated by reference into the
Prospectus, comply as to form in all material respects with
the requirements of the Act and the Rules and Regulations
(except that no opinion need be expressed as to the financial
statements or other financial information contained therein or
incorporated by reference therein), and the conditions for use
of Form S-2, set forth in the General Instructions thereto,
have been satisfied;
(viii) Such counsel has no actual knowledge of any
litigation or any governmental proceeding pending or
threatened against the Company or any of its subsidiaries or
the results of any governmental audit, review or survey which
would adversely affect the transactions contemplated by this
Agreement or which is required to be disclosed in the
Prospectus which is not disclosed and correctly summarized
therein;
(ix) Such counsel has no actual knowledge of any
contracts or other documents which are required by the Act or
the Rules and Regulations to be described in the Registration
Statement or Prospectus, to be filed as exhibits to the
Registration Statement or to be incorporated by reference into
the Registration Statement or Prospectus which have not been
described, filed or incorporated by reference as required;
(x) To such counsel's actual knowledge, neither the
Company nor any of its subsidiaries is in violation of its
corporate charter or by-laws, or in default under any
agreement, indenture or instrument, or in violation of any
law, rule or regulation, the effect of which violation or
default would be material and adverse to the Company or the
Company and its subsidiaries taken as a whole;
(xi) The Company has full corporate power and
authority to execute, deliver and perform this Agreement; this
Agreement has been duly authorized, executed and delivered by
the Company and constitutes the valid and legally binding
obligation of the Company, enforceable against the Company in
accordance with its terms, except as enforcement may be
limited by bankruptcy, insolvency, reorganization, moratorium
or other similar laws relating to creditors' rights generally
or by equitable principles (whether considered in an action at
law or in equity) and except as the rights to indemnification
or contribution hereunder may be limited by federal or state
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<PAGE>
securities laws; the execution, delivery and performance of
this Agreement by the Company will not conflict with, or
result in the creation or imposition of any lien, charge or
encumbrance upon any of the assets of the Company or any of
its subsidiaries pursuant to the terms of or constitute a
default under, any material agreement, indenture or instrument
actually known to such counsel, or result in a violation of
the corporate charter or by-laws of the Company or any of its
subsidiaries or any order, law, rule or regulation normally
applicable to transactions of this type of any court or
governmental agency having jurisdiction over the Company or
any of its subsidiaries or their property; and no consent,
authorization or order of, or filing or registration with, any
court or governmental agency is required for the execution,
delivery and performance of this Agreement by the Company,
except such as may be required by the Act, the Exchange Act,
state securities laws or the National Association of
Securities Dealers, Inc.;
(xii) To such counsel's actual knowledge, each of the
Company and its subsidiaries has such licenses, permits,
consents, approvals, authorizations and certificates from any
public or governmental authorities that are necessary for the
conduct of its business and owns, or possesses adequate rights
to use, all rights necessary for the conduct of such business
and without which there would be a materially adverse effect
on the business or financial condition of the Company or the
Company and its subsidiaries taken as a whole and has not
received any notice of conflict with the asserted rights of
others in respect thereof;
(xiii) Except as set forth in the Registration
Statement and Prospectus, there are no holders of securities
of the Company who, by reason of the filing of the
Registration Statement under the Act or the execution by the
Company of this Agreement, have the right pursuant to the
Company's charter, by-laws or any agreement, instrument or
other document of which such counsel has actual knowledge
(other than a right which has been waived or satisfied) to
request or demand that the Company register under the Act
securities of the Company held by them; and
(xiv) The Company is not an "investment company" or
an entity "controlled" by an "investment company" within the
meaning of the Investment Company Act of 1940, as amended, and
the rules and regulations thereunder.
In addition, such counsel shall state that such counsel has
participated in conferences with the Underwriters, officers and other
representatives of the Company and representatives of the independent
accountants of the Company at which the contents of the Registration Statement
and Prospectus and the Form 10-K of the Company for its fiscal year ended
December 31, 1998 and the documents incorporated by reference therein (the "Form
10-K") and related matters were discussed and, although such counsel is not
passing upon and does not assume sole responsibility for the accuracy,
completeness or fairness of the statements contained in the Registration
Statement, the
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<PAGE>
Form 10-K and Prospectus (except as provided above with respect to clauses (v)
and (viii) of this Section 8(d)), on the basis of the foregoing, no facts have
come to the attention of such counsel which lead such counsel to believe that
the Registration Statement, the Form 10-K or any amendment thereto when such
Registration Statement, the Form 10-K or amendment became effective 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
or that on the First Delivery Date and Second Delivery Date, if any, the
Prospectus, as amended or supplemented (including the Form 10-K or any other
document filed under the Exchange Act and deemed to be incorporated by reference
into the Prospectus) contains any untrue statement of a material fact or omits
to state a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading (it
being understood that such counsel need express no opinion with respect to the
financial statements, the notes thereto and schedules therein and other
financial and statistical information included in the Registration Statement,
the Form 10-K or Prospectus).
(e) The Company shall have furnished to the Underwriters on
each of the First Delivery Date and the Second Delivery Date, if any, a
certificate, dated such delivery date, of its President and its
Treasurer stating that:
(i) The representations, warranties and agreements of
the Company in Section 1 are true and correct as of such
delivery date; the Company has complied with all the
agreements and satisfied all the conditions herein on its part
to be performed or satisfied at or prior to such delivery
date;
(ii) No stop order suspending the effectiveness of
the Registration Statement has been issued and no proceedings
for such purpose have been instituted or, to the Company's
knowledge, threatened; and
(iii) They have carefully examined the Registration
Statement and the Prospectus and, in their opinion, (A) as of
the Effective Date, the Registration Statement 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
on such delivery date, the Prospectus (including any documents
filed under the Exchange Act and deemed to be incorporated by
reference into the Prospectus) does not include any untrue
statement of a material fact and does not omit to state a
material fact required to be stated therein or necessary to
make the statements therein not misleading, and (B) since the
Effective Date, no event has occurred which should have been
set forth in the Prospectus or a supplement thereto or
amendment thereof which has not been set forth in such a
supplement or amendment and there has been no document
required to be filed under the Exchange Act and the Rules and
Regulations that upon such filing would be deemed to be
incorporated by reference into the Prospectus that has not
been so filed.
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<PAGE>
(f) The Company shall have furnished to the Underwriters on
each of the First Delivery Date and the Second Delivery Date, if any, a
letter of KPMG LLP, addressed to the Underwriters and dated such
delivery date, confirming that they are independent public accountants
within the meaning of the 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, stating, as of the date of
such letter (or, with respect to matters involving changes or
developments since the respective dates as of which specified financial
information is given in the Prospectus, as of a date not more than five
days prior to the date of such letter), the conclusions and findings of
such firm with respect to the financial information and other matters
covered by its letter delivered to the Underwriters concurrently with
the execution of this Agreement and confirming in all material respects
the conclusions and findings set forth in such prior letter.
(g) The Underwriters shall have received from Morgan, Lewis &
Bockius LLP, counsel for the Underwriters, an opinion dated the First
Delivery Date and the Second Delivery Date, if any, relating to such
matters as may be agreed upon by the Underwriters and Morgan, Lewis &
Bockius LLP.
(h) Since the Effective Date, neither the Company nor any of
its subsidiaries shall have sustained any loss by fire, flood, accident
or other calamity, or shall have become a party to or the subject of
any litigation, which is material and adverse to the Company or the
Company and its subsidiaries taken as a whole, nor shall there have
been a material adverse change in the general affairs, prospects,
business, key personnel, capitalization, financial position or net
worth of the Company and its subsidiaries, whether or not arising in
the ordinary course of business, which loss, litigation or change, in
the reasonable judgment of the Underwriters, shall render it
inadvisable to proceed with the delivery of the Stock.
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 Morgan, Lewis & Bockius LLP, counsel for the Underwriters.
9. Notice. The Company shall be entitled to act and rely upon any
request, consent, notice or agreement given or made by Legg Mason Wood Walker,
Incorporated and Advest, Inc. on behalf of the Underwriters. Any notice to the
Underwriters shall be sufficient if given in writing or by telefax or telecopy
addressed to (a) Legg Mason Wood Walker, Incorporated, 100 Light Street,
Baltimore, Maryland 21203, Attention: Mark C. Micklem (telecopy no.
202-778-1278), and (b) Advest, Inc., One Rockefeller Plaza, 20th Floor, New
York, New York 10020, Attention: Stephen J. Gilhooly (telecopy no.
212-584-4292); any notice to the Company shall be sufficient if given in writing
or by telefax or telecopy addressed to the Company at 3111 Quakerbridge Road,
Mercerville, New Jersey 08619, Attention: Patrick M. Ryan (telecopy no.
609-586-9582).
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<PAGE>
10. Parties. 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 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 Act, and (b) the indemnity agreement of
the Underwriters contained in Section 6 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.
Nothing in this Agreement is intended or shall be construed to give any person,
other than the persons referred to in this section, any legal or equitable
right, remedy or claim under or in respect of this Agreement or any provision
contained herein.
11. Definition of "Business Day" and "Subsidiary". For purposes of this
Agreement, (a) "business day" means any day on which the New York Stock
Exchange, Inc. is open for trading, and (b) "subsidiary" has the meaning set
forth in Rule 405 of the Rules and Regulations.
12. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New Jersey, without giving effect to
the choice of law or conflicts of laws principles thereof. This Agreement may be
executed in one or more counterparts, and if executed in more than one
counterpart, the executed counterparts shall together constitute a single
instrument.
13. Counterparts. This Agreement may be signed in one or more
counterparts, each of which shall constitute an original and all of which
together shall constitute one and the same Agreement.
14. Information Furnished by Underwriters. The statements under the
"Underwriting" in any Preliminary Prospectus or the Prospectus, except for
statements made in the paragraphs pertaining to the 180 day restrictions on
sales of Common Stock [and shares of Common Stock reserved for sale to officers,
directors and employees of the Company and their family members and to business
associates of the Company] constitute the written information furnished by or on
behalf of the Underwriters referred to in paragraph (b) of Section 1 hereof and
in paragraphs (a) and (b) of Section 6 hereof.
[SIGNATURE PAGE TO FOLLOW]
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<PAGE>
If the foregoing correctly sets forth the agreement between the Company
and the Underwriters, please indicate your acceptance in the space provided for
that purpose below.
Very truly yours,
Yardville National Bancorp
By
-----------------------------------------
Patrick M. Ryan
President and Chief Executive Officer
Confirmed and accepted as of the date first above mentioned:
LEGG MASON WOOD WALKER, INCORPORATED
By
-----------------------------------
Authorized Representative
ADVEST, INC.
By
-----------------------------------
Authorized Representative
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<PAGE>
SCHEDULE I
Number of
Underwriters Shares
------------ ----------
Legg Mason Wood Walker, Incorporated..........................
Advest, Inc...................................................
----------
Total
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<PAGE>
[FORM OF LOCK-UP AGREEMENT]
AGREEMENT REGARDING THE SALE OF
YARDVILLE NATIONAL BANCORP SECURITIES
May , 1999
Reference is made to the registration statement on Form S-2 of
Yardville National Bancorp (the "Company") (as the same may hereafter be
amended, the "Registration Statement") pursuant to which shares of common stock
of the Company, no par value per share (the "Common Stock") are being registered
under the Securities Act of 1933 (the "Act") for public sale through Legg Mason
Wood Walker, Incorporated and Advest, Inc. (the "Underwriters").
The undersigned hereby agrees that the undersigned will not, directly
or indirectly, sell or otherwise dispose of, or offer or contract to sell any
shares of Common Stock or any securities convertible into, or exercisable for,
shares of the Common Stock, owned of record or beneficially by the undersigned
on the date hereof or on the effective date of the Registration Statement (the
"Effective Date") for 180 days after the Effective Date (the "Lock-up Period")
without first obtaining the prior written consent of the Underwriters (which
consent shall not be unreasonably withheld). The undersigned acknowledges that
the Company at the request of the Underwriters may instruct the transfer agent
of the Company to place stop transfer instructions against shares of the Common
Stock so owned by the undersigned during such Lock-up Period which will require
the transfer agent to notify the Company and obtain the approval prior to any
transfer of record during the Lock-up Period.
The undersigned represents and acknowledges that this Agreement is
being executed in order to induce the Underwriters to enter into an underwriting
agreement with respect to the Company's public offering, and that the
Underwriters will not enter into an underwriting agreement in the absence of
this Agreement.
------------------------------
(signature)
------------------------------
(print name)
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<PAGE>
EXHIBIT 5
Yardville National Bancorp
Page 1
May 12, 1999
May 12, 1999
Yardville National Bancorp
3111 Quakerbridge Road
Trenton, NJ 08619
Re: Registration Statement on Form S-2
(Registration No. 333-76647)
------------------------------------
Ladies and Gentlemen:
We have acted as counsel for Yardville National Bancorp, a New
Jersey corporation (the "Company"), in connection with the registration pursuant
to the Securities Act of 1933, as amended (the "Act"), of a public offering by
the Company (the "Offering") of up to 1,610,000 shares (the "Shares") of the
Company's common stock, no par value per share (the "Common Stock").
In our capacity as counsel, you have requested that we render
the opinion set forth in this letter and we are furnishing this opinion letter
pursuant to Item 601(b)(5) of Regulation S-K under the Act.
We have examined originals or copies, certified or otherwise
identified to our satisfaction, of (i) the Company's Registration Statement on
Form S-2 (Registration No. 333-76647) filed by the Company under the Act with
the U.S. Securities and Exchange Commission (the "Commission") on April 20,
1999, Amendment No. 1 thereto filed with the Commission on April 30, 1999, and
Amendment No. 2 thereto ("Amendment No. 2") filed with the Commission on May 12,
1999, (ii) the form of underwriting agreement, filed as Exhibit 1 to Amendment
No. 2 (the "Underwriting Agreement"), to be entered into by the Company and by
Legg Mason Wood Walker, Incorporated and Advest, Inc. (the "Underwriters"),
(iii) the Company's Restated Certificate of Incorporation, as amended, (iv) the
Company's By-Laws, (v) certain resolutions of the Board of Directors of the
Company relating to the Offering, (vi) a specimen certificate representing the
shares of the Common Stock, and (vii) such other documents as we have deemed
necessary or appropriate for purposes of rendering the opinion set forth herein.
In our examination, we have assumed the legal capacity of all
natural persons, the genuineness of all signatures, the authenticity of all
documents submitted to us as certified or photostatic copies and the
authenticity of the originals of such latter documents. As to any facts material
to the opinion expressed herein that were not independently established or
<PAGE>
Yardville National Bancorp
Page 2
May 12, 1999
verified, we have relied upon statements and representations of officers and
other representatives of the Company and others. In addition, we have assumed
the conformity of the certificates representing the Shares to the form of the
specimen thereof examined by us and the due execution and delivery of such
certificates.
The law covered by this opinion letter is limited to the laws
of the State of New Jersey and the Federal laws of the United States of America.
This opinion letter is given only with respect to laws and
regulations presently in effect. We assume no obligation to advise you of any
changes in law or regulation that may hereafter occur, whether the same are
retroactively or prospectively applied or to update or supplement this opinion
in any fashion to reflect any facts or circumstances that hereafter come to our
attention.
Based upon and subject to the foregoing, we are of the
opinion, as of the date hereof, that the Shares and any additional shares of the
Common Stock that are subject to a registration statement filed pursuant to Rule
462(b) under the Act in connection with the Offering (a "462(b) Registration
Statement") will be duly authorized, legally issued, fully paid and
nonassessable when (i) the Board of Directors of the Company or the Pricing
Committee duly appointed by the Board of Directors authorizes the price per
Share, (ii) the duly appointed officers of the Company and the Underwriters
execute and deliver the Underwriting Agreement, and (iii) the Shares are issued
and delivered against payment therefor in accordance with the terms of the
Underwriting Agreement.
We hereby consent to the use of this opinion letter as an
exhibit to the Company's Registration Statement on Form S-2 (Registration No.
333-76647) (the "Registration Statement") and as an exhibit to a 462(b)
Registration Statement and to the reference to this firm under the caption
"Legal Matters" in the prospectus filed as part of the Registration Statement.
In giving this consent, we do not admit that we are in the category of persons
whose consent is required under Section 7 of the Act and the rules and
regulations of the Commission thereunder.
As counsel to the Company, we have furnished this opinion
letter to you in connection with the filing of the Registration Statement.
Except as provided in the immediately preceding paragraph, this opinion letter
may not be used, circulated, quoted or otherwise referred to for any purpose or
relied upon by any other person without the express written permission of this
firm.
Very truly yours,
/s/ PEPPER HAMILTON LLP
