CONFIDENTIAL
EXHIBIT 99.6
CONFIDENTIAL
February
25, 2010
Xx.
Xxxxxx X. Xxxxxxx
President
and Chief Executive Officer
Colonial
Bankshares, MHC
Colonial
Bankshares, Inc.
0000
Xxxxx Xxxxxx Xxxxx
Vineland,
NJ 08360
Re: Proposed
Conversion – Records Processing Services
Dear Xx.
Xxxxxxx:
Xxxxxx,
Xxxxxxxx & Company, Incorporated (“Xxxxxx Xxxxxxxx”) is pleased to submit
this letter agreement setting forth the terms of the proposed engagement of
Xxxxxx Xxxxxxxx as data processing records management agent (the “Records
Agent”) for Colonial Bank, FSB (the “Bank”) in connection with the proposed
mutual-to-stock conversion of the MHC (as defined below) (the “Conversion”) and
the concurrent sale of common stock of a new stock holding company (the “Stock
Company”) to be formed in connection with the Conversion representing the
ownership interest in the Mid-Tier (as defined below) currently owned by the MHC
(as defined below).
1. CONVERSION
AND OFFERING
Colonial
Bankshares, MHC (the “MHC”), Colonial Bankshares, Inc. (the “Mid-Tier”) and the
Bank will effect the Conversion by undergoing a series of transactions and
forming the Stock Company (the MHC, the Mid-Tier, the Bank and the Stock Company
are together referred to herein as the “Company”). The common stock
of the Stock Company (the “Common Stock”) will be offered for sale on a priority
basis in a subscription offering with any remaining shares expected to be sold
in a community offering and, if necessary, a syndicated community offering or
pubic underwritten offering (collectively, the “Offering”). In
connection therewith, the MHC’s, the Mid-Tier’s and the Bank’s Board of
Directors will adopt a plan of conversion and reorganization (the
“Plan”). Xxxxxx Xxxxxxxx will act as Records Agent to the Company
with respect to the subscription and community offerings. Specific
terms of services shall be set forth in the Data Processing Records Management
Engagement Terms (the “Terms”), which is an integral part of this letter and is
incorporated herein. In the event of any conflict between this letter
and the Terms, the Terms shall control.
Pursuant
to a separate engagement letter by and between Xxxxxx Xxxxxxxx and the MHC and
the Mid-Tier, Xxxxxx Xxxxxxxx will serve as conversion advisor and marketing
agent for the Company in connection with the Conversion and
Offering.
2. SERVICES
TO BE PROVIDED BY XXXXXX XXXXXXXX
In
connection with the subscription and community offerings, Xxxxxx Xxxxxxxx will
serve as Records Agent. A stock offering requires accurate and timely
record keeping, processing and reporting. We will coordinate with the
Bank’s data processing contacts and applicable members of the Conversion working
group. We will also interface with and support the Stock Information
Center, which will serve as the “command center” during a stock
offering. Specifically, we will provide the records processing, proxy
and stock order services described below, each as needed or reasonably requested
by the Bank and the Company.
Preparation
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Provide
the Bank with an account record layout format and consult with the Bank’s
data processing contacts.
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Read,
edit, balance and convert the Bank’s customer account records (the
“Account Records”) that are provided to Xxxxxx
Xxxxxxxx.
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Provide
customer account totals based on the Account Records, for the Bank to
balance to its internal records.
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Identify
accounts coded as “Bad Address” and “No Mail” and provide to the
Bank.
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Identify
accounts that are eligible according to the Plan and consolidate like
accounts in order to reduce printing
costs.
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Allocate
votes according to the Plan.
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“Household”
consolidated accounts, where possible, in order to reduce printing/postage
costs.
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If
the Account Records do not contain a high percentage of phone numbers,
contact Telematch service bureau to locate customer phone numbers, with
the Bank’s authorization.
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Provide
counsel with a list of aggregate accounts by
state.
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Provide
the Stock Information Center with “Folio Views” computer record of
customer account, household and vote
information.
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Provide
financial printer with electronic information to imprint order
forms/proxycards with name, address and
codes.
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Provide
phone records for Stock Information Center personnel to use for customer
proxy solicitation.
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Processing
and Reporting
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Tabulate
proxy votes.
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Record
stock order information and, in the event of oversubscription, allocate
shares in accordance with the Plan.
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Produce
information for “unvoted” follow-up proxy calls/mailings, in selected vote
range.
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Provide
the Company with up-to-date subscriber order
totals.
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Produce
subscriber stock order acknowledgement letters, to be
mailed.
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Assign
an individual to serve as the Inspector of Elections for the Special
Meeting of Members.
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Calculate
interest/refund amounts and provide the Bank with records, for check
imprinting.
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Supply
deposit account withdrawal records to the
Bank.
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Send
transfer agent the new investor files for certificate
preparation.
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If
requested, produce year end subscriber 1099-INT forms and electronically
submit information to IRS.
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3. RELIANCE
ON INFORMATION PROVIDED
In order
to provide services effectively and efficiently, Xxxxxx Xxxxxxxx must be
provided complete, accurate and timely record date customer account files as
well as other information and responses to our inquiries. We must be
notified promptly of Plan changes or other facts that impact our duties
hereunder. Xxxxxx Xxxxxxxx will rely on the information provided
without independently verifying same and will not assume responsibility for the
completeness or accuracy of that information.
4. COMPENSATION
For its
services hereunder, the Company will pay to Xxxxxx Xxxxxxxx a fee of
$20,000. Additional fees not to exceed $10,000 may be
negotiated if significant additional work is required due to unexpected
circumstances such as:
a.)
customer account records provided to us in a format substantially different than
our requested format;
b.)
necessity to produce more than four accountholder files (three depositor
eligibility dates plus a depositor “test date”), whether due to eligibility date
changes, timetable changes or other circumstances requiring duplicate or
additional processing;
c.)
untimely communication by the Company or its agents of material information, or
untimely delivery of customer records, resulting in additional time or resources
expended by Xxxxxx Xxxxxxxx;
d.)
processing of stock orders resulting from a resolicitation of subscribers by the
Company; or
e.) non-standard
services requested by the Company.
The above
compensation shall be paid as follows: an advance payment of $5,000 upon
executing this letter and the balance upon the closing of the
Offering. Year-end 1099 files related to interest earned by
subscribers can be prepared for an additional fee.
If the
Offering is not consummated for any reason, Xxxxxx Xxxxxxxx shall be entitled to
retain the advance payment described above and any additional fees earned
hereunder through the termination date. Additionally, Xxxxxx Xxxxxxxx
shall be reimbursed for its reasonable out-of-pocket expenses as set forth
below, incurred through the termination date.
5. EXPENSES
AND REIMBURSEMENT
The
Company will bear all of its expenses in connection with the Conversion and the
Offering. The Company shall reimburse Xxxxxx Xxxxxxxx for its
reasonable out-of-pocket expenses incurred in connection with the services
contemplated hereunder, regardless of whether the Offering is consummated,
provided that such out-of-pocket expenses shall not exceed
$5,000. Typical expenses include, but are not limited to, postage,
overnight delivery, telephone and travel. Not later than two days
before the Offering closing, Xxxxxx Xxxxxxxx will provide the Company with a
detailed accounting of all reimbursable expenses of Xxxxxx Xxxxxxxx, to be paid
at closing.
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6.
ENTIRE
AGREEMENT
This
letter and the incorporated Terms reflect the entire agreement between us
related to the services described herein. This agreement may be
amended by a written document signed by both parties.
Please
acknowledge your agreement to the foregoing by signing in the place provided
below and returning one copy of this letter to our office together with the
retainer payment in the amount of $5,000. We look forward to working
with you.
XXXXXX,
XXXXXXXX & COMPANY, INCORPORATED
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BY:
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/s/ Xxxxx X. Xxxxxxx |
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Xxxxx X. Xxxxxxx |
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Managing Director |
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COLONIAL
BANKSHARES, MHC
COLONIAL
BANKSHARES, INC.
| BY: | /s/ Xxxxxx X. Xxxxxxx | |||
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Xx. Xxxxxx X. Xxxxxxx |
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President and Chief Executive Officer |
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Accepted
and Agreed to This _________ Day of _________, 2010
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XXXXXX
XXXXXXXX
DATA
PROCESSING RECORDS MANAGEMENT ENGAGEMENT TERMS
This
document, which is integral to the Records Processing Services letter of the
same date (together,
the or this “Agreement”), applies to all records processing services (the
“Services”) performed, unless a specific engagement letter is entered into for
certain services. The Services are to be provided by Xxxxxx Xxxxxxxx
(the “Agent”) to Colonial Bankshares, MHC, Colonial Bankshares, Inc. and a new
stock holding company to be formed (together, the “Company”) in connection with
a mutual-to-stock conversion and related stock offering (the “Stock Offering”)
to be conducted pursuant to a Plan of Conversion (the “Plan”).
Section
1 - DUTIES OF XXXXXX XXXXXXXX
a.) The
Agent xxxxxx agrees to perform the Services set forth in this Agreement in a
commercially reasonable manner, to comply with all timely, appropriate and
lawful instructions received from previously identified duly authorized
representatives of the Company. The Agent makes no warranties
regarding the rendering of the Services (including, without limitation,
warranties of merchantability, security, accuracy, noninfringement, and fitness
for a particular purpose), and no additional warranties may be implied from the
terms of this Agreement. The Company will: (i) inform all of its
authorized representatives, which may include attorneys, agents and advisors,
that the Agent shall act as the exclusive data processing records management
agent and that they are authorized and directed to communicate with the Agent
and to promptly provide the Agent with all information that is reasonably
requested; (ii) cause the Agent to have adequate notice of, and permit the Agent
to attend, meetings (whether in person or otherwise) where the Agent’s
attendance is, in the discretion of the Agent, relevant, advisable or necessary;
(iii) cause the Agent to receive, as they become available, copies of the
documents relating to the Plan, the mutual-to-stock conversion and the Stock
Offering, to the extent the Agent believes that such documents are necessary or
appropriate for the Agent to perform the Services and (iv) cause the Agent to
have adequate advance notice of any proposed changes to the Plan, the proposed
Services or the Stock Offering timetable. Failure by the Company to
keep the Agent timely and adequately informed or to provide the Agent with
complete and accurate necessary information on a timely basis shall excuse the
Agent’s delay in the performance of its Services and may be grounds for the
Agent to terminate this Agreement pursuant to Section 2 hereof.
b.) The
actions to be taken by the Agent hereunder are deemed by the parties to be
ministerial only and not discretionary. The Agent, in its capacity as
such, shall not be called upon at any time to give any advice regarding
implementing the Plan. The Company shall have the sole responsibility
to make any and all decisions with respect to implementing the Plan, including
but not limited to decisions regarding which customer bank accounts are to be
included in accountholder records provided to the Agent. The Agent
may rely on records and information received and is not responsible for ensuring
the completeness and accuracy of the accountholder records provided or
processed.
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c.) The
Agent may rely upon the instructions and representations (whether oral or in
writing) of the Company’s duly authorized representatives, without inquiry or
investigation. The Agent shall not be
responsible for any action taken in reliance upon any signature, endorsement,
assignment, certificate, order, request, notice or instruction (whether written
or oral), or other instrument or document reasonably believed by it to be valid,
genuine and sufficient in carrying out its duties hereunder. The
Agent shall not be liable or responsible, and shall be fully authorized and
protected for, acting or failing to act in accordance with any oral instructions
or requests.
d.) The
Agent may consult with legal counsel chosen in good faith as to Agent’s
obligations or performance under this Agreement, and the Agent shall not incur
any liability in acting in good faith in accordance with any advice from such
counsel with respect to Agent’s obligations or performance under this
Agreement.
e.) The
Agent expects to subcontract certain data processing functions integral to the
Services with any one or more of its affiliates or with any other
party. The fees and expenses of such subcontractor shall not be
billed to the Company, unless otherwise agreed to by the parties hereto in
writing. Such
subcontractor shall agree to comply with the provisions of this Agreement
relating to Confidentiality (Section 3), Consumer Privacy (Section 4) and
Process (Section 5).
f.)
Neither Xxxxxx Xxxxxxxx nor any of its directors, managers, officers, employees,
affiliates, subsidiaries or agents nor any of their respective controlling
persons, heirs, representatives, estates, successors and assigns shall be
liable, directly or indirectly, for any losses, claims, judgments, damages or
expenses suffered or incurred by the Company, or any person claiming through it,
arising out of or relating to the Services provided, other than for, subject to
Section 1 g.) below, direct damages or expenses directly related solely to the
bad faith, gross negligence or willful
misconduct of the Agent as finally and specifically determined by a court of
competent jurisdiction. Moreover, Xxxxxx Xxxxxxxx shall not be
responsible nor liable for delays, errors or omissions arising from, relating to
or made in connection with circumstances beyond its reasonable control,
including but not limited to, acts or omissions of the Company or any of its
advisors or agents, acts of governmental authorities, acts of civil commotion or
riot, insurrection, acts of military authority, war or acts of war or terrorism,
national emergencies, labor difficulties, fire, flood, weather-related problems,
acts of God or nature, mechanical or electrical breakdown, computer problems,
failure or unavailability of communications or power supply or any change in law
or regulation materially affecting the Agent or the Company.
g.) The
Agent shall not be liable for any action taken, suffered, or omitted by it or
for any error or judgment made by it in the performance of its duties under this
Agreement, except for acts or omissions directly relating solely to the Agent’s
bad faith, gross negligence or willful misconduct as finally and specifically
determined by a court of competent jurisdiction. In
no event shall the Agent be liable for: (i) acting in accordance with or relying
upon any instruction, request, notice, demand, certificate, order or document
from the Company or any authorized representative acting on its behalf or (ii)
for any consequential, indirect, incidental, punitive, exemplary or special
damages of any kind whatsoever (including but not limited to lost profits) even
if the Agent has been advised of the possibility of such damages. Any
liability of the Agent shall be limited to the amount of fees paid to the Agent
for the Services performed by the Agent pursuant to this Agreement, in
accordance with Section 7 hereof.
h.) The
duties, responsibilities and obligations of the Agent shall be limited to those
expressly set forth herein, and no duties, responsibilities or obligations shall
be inferred or implied. The Agent, in its capacity as such, shall not
be subject to, nor required to comply with, any other agreement between or among
any or all of the parties hereto and/or any other person or entity, even though
reference thereto may be made herein or therein, or to comply with any direction
or instruction (other than those contained herein or delivered in accordance
with this Agreement) from any person or entity other than the
Company. Except as may otherwise be set forth herein, the Agent shall
not be required to, and shall not, expend or risk any of its own funds or
otherwise incur any financial liability in the performance of its duties
hereunder.
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i.) The
parties hereto acknowledge that there are no third party beneficiaries to this
Agreement, which is for the exclusive benefit of the parties
hereto. No other person or entity or their respective heirs,
successors and assigns shall be deemed to have any legal or equitable right,
remedy or claim hereto.
j.) In
the event of any ambiguity or uncertainty hereunder or in any notice,
instruction or other communication received by the Agent hereunder, the Agent
will provide the Company a reasonable opportunity to resolve such uncertainty or
ambiguity and in the event that such uncertainty or ambiguity is unresolved the
Agent may, in its sole discretion, take any action it deems appropriate or
refrain from taking any action unless and until the Agent receives written
instructions from the Company clarifying the ambiguity or uncertainty, and the
Agent shall not be liable for acting or the failure to take any action during
this period. In the event of any disagreement between the Company and
any other person or entity resulting in adverse claims and demands being made
herein or affected hereby, the Agent shall be entitled to refuse to comply with
any such claims or demands as long as such disagreement may continue, and in so
refusing, shall make no delivery or other disposition under this Agreement, and
in so doing shall be entitled to continue to refrain from acting until: (i) the
right of adverse claimants shall have been finally settled by binding
arbitration or finally adjudicated in a court of competent jurisdiction or (ii)
all differences shall have been settled by agreement among the adverse claimants
and the Company or other persons or entities and the Agent shall have been
notified in writing of such agreement signed by the Company and the adverse
person(s) or entity(ies). In the event of such disagreement, the
Agent may, but need not, tender into the registry or custody of any court of
competent jurisdiction all property in the Agent’s possession pursuant to the
terms of this Agreement, together with such legal proceedings as the Agent deems
appropriate, and thereupon the Agent shall be discharged from all further duties
under this Agreement. The filing of any such legal proceeding shall
not deprive the Agent of compensation or expenses paid or payable hereunder for
Services, and the Agent shall not be liable with respect to any suspension of
performance, delay or otherwise as a result of the tendering of such
property. The Agent shall have no obligation to take any legal action
in connection with this Agreement or towards its enforcement, or to appear in,
prosecute or defend any action or legal proceeding which would or might involve
the Agent in any cost, expense, loss or liability unless indemnification,
satisfactory to the Agent, in its sole discretion, shall be furnished by the
Company. The Agent shall be indemnified for all reasonable costs (including
employee time at the employee’s hourly rate determined by his annual salary) and
attorneys’ fees and expenses in connection with any such action.
Section
2 - COMMENCEMENT AND TERMINATION OF AGREEMENT
This Agreement shall
commence immediately upon execution hereof by all parties and shall continue in
force until the consummation or termination of the Stock Offering and
mutual-to-stock conversion or the termination of this Agreement. This
Agreement may only be terminated by the Company for cause due to action by the
Agent constituting a material violation of applicable law or a material breach
of this Agreement, which breach remains uncured for ten (10) business days after
written notice of such breach is delivered by the Company to the
Agent. This Agreement may only be terminated by the Agent in the
event of: one or more of the following: (i) termination of the separate
agreement designating the Agent as conversion advisor and marketing agent
related to the mutual-to-stock conversion and related Stock Offering; (ii)
circumstances described in Section 1 j.) hereof; (iii) action
by the Company constituting a material violation of applicable law or a material
breach of this Agreement (including as described in Section 1 a.) hereof)
or failure to pay the fees and expenses of the Agent) which breach remains
uncured for ten (10) business days after written notice of breach is delivered
by Xxxxxx Xxxxxxxx to the Company or (iv) any proceeding in bankruptcy,
reorganization, rehabilitation, guaranty fund action, receivership or insolvency
is commenced by or against the Company, the Company shall become insolvent, or
cease paying its obligations as they become due.
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Section
3 - CONFIDENTIALITY
a.) The
parties hereto will: (a) hold, and will cause their respective employees,
officers, directors and authorized representatives (including attorneys,
advisors and agents) to hold, in strict confidence, unless compelled to disclose
by judicial, regulatory or administrative process and then (i) only with
written notice prior to disclosure to the disclosing party and (ii) still
maintaining the confidential status of any such documents and information, all
documents and information, in any medium (the “Information”), concerning the
disclosing party, whether the Information is furnished to the receiving party by
the disclosing party or its representatives in connection with this Agreement or
the Information is received, transmitted, created, generated or otherwise
processed by the receiving party based, in whole or in part, upon the
Information of the disclosing party, except to the extent that such Information
can be shown to have been (iii) previously known by the receiving party other
than through a breach of a confidentiality agreement by a third party;
(iv) in the public domain through no fault of the receiving party or
(v) later lawfully acquired by the receiving party from other sources) (the
“Confidential Information”), and (b) not use such Confidential Information
except for the purposes set forth herein and (c) unless prior written consent is
obtained, release Confidential Information only to persons described in this
Section 3 (a). It is understood by the parties hereto that the
receiving party shall be deemed to have satisfied its obligation to hold the
Confidential Information confidential if it exercises the same care as it takes
to preserve the confidentiality of its own similar information.
b.) The
parties hereto agree to the use of facsimile, email and voicemail as means to
communicate both sensitive and non-sensitive information related to the
Services.
Section
4 - CONSUMER PRIVACY
a.) In connection with
this Agreement, the Company will cause the Agent to be provided Information,
which will include nonpublic personal data regarding customers and bank account
records. Unless required by law or unless prior written consent is
obtained from the Company, the Agent will not knowingly disclose any such
nonpublic personal data except to persons described in Section 3 a.), in
connection with performing the Services.
b.) The
Agent (or its agents) has implemented and will maintain physical, electronic and
procedural safeguards reasonably designed to protect the security,
confidentiality and integrity of, to prevent unauthorized access to or use of,
and to ensure the proper disposal, of nonpublic personal data regarding
customers and bank accounts records. Notwithstanding the foregoing,
given the nature of electronic communications and the Internet, the Agent makes
no absolute guarantees regarding the safety and security of any data transmitted
over or accessible via the Internet or any other public networks.
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c.) Upon
consummation of the Stock Offering, termination of this Agreement or other
reasonable time, at the written request of the Company, and at its sole expense,
the Agent shall use its reasonable efforts to transfer to the Company or destroy
all physical or electronic Confidential Information, including nonpublic
personal data regarding customers and bank account records (excluding data,
software and documentation proprietary to the Agent (or its agents)) and shall
not retain copies of such data and documentation; provided however, that the
Agent (and its agents) may retain copies to the extent necessary, but only for
as long as necessary, to comply with legal, regulatory and archival
requirements.
Section
5 - PROCESS
If at any time the Agent
is served with any judicial or administrative order, judgment, decree, motion,
writ, or other form of judicial or administrative process which in any way
affects any property of the Company, the Agent is authorized to comply therewith
in any reasonable manner as it or its legal counsel of its own choosing deems
appropriate; provided that the Agent shall endeavor to give notice thereof to
the Company. If the Agent complies with any such judicial or
administrative order, judgment, decree, writ or other form of judicial or
administrative process, the Agent shall not be liable to any of the parties, or
to any other person or entity, even though such order, judgment, decree, writ or
process may be subsequently modified or vacated or otherwise determined to have
been without legal force or effect.
Section
6 - INDEMNIFICATION
The Company hereby agrees
to indemnify and hold harmless the Agent, its directors, officers,
employees, affiliates, subsidiaries, agents, and each of their controlling
persons, if any (within the meaning of Section 15 or Section 20(a) of the
Securities Exchange Act of 1934, as amended, and their respective heirs,
representatives, successors and assigns (together, the “Agent Group”) against
any loss, liability, claim or expense (“Loss”), joint or several, to which the
Agent Group may become subject, under any federal or state law or regulation, at
common law, in equity or otherwise, insofar as such Loss (or actions in respect
thereof) arises out of or is based on or is in connection with or is related to
this Agreement and the Services, except to the extent the Agent is finally
found, by a court of competent jurisdiction, to have engaged in bad faith,
willful misconduct or gross negligence. The Company agrees to advance
or reimburse the Agent Group (or any one or more of them) within fifteen (15)
business days of a written request therefor in connection with investigating,
preparing or defending against any such loss, claim, damage, liability or action
by the Agent Group (or any one or more of them). The indemnification
obligations of the Company as provided above are in addition to any liabilities
that the Company may have under other agreements, under common law or
otherwise.
Section
7 - LIMIT OF LIABILITY
The
Agent will provide the Services with due care, in a timely manner, so the
provisions of this section establishing a limit of liability will not apply if,
as determined in a judicial proceeding, we performed our services with bad
faith, gross negligence or willful misconduct. However, our engagement with you
is not intended to shift risks normally borne by you to us. With respect to any
services or work product or this engagement for Services in general, the
liability of the Agent and its personnel shall not exceed the fees we receive
for the portion of the work giving rise to liability nor include any special,
consequential, incidental, or exemplary damages or loss nor any lost profits,
savings, or business opportunity. A claim by Company for a return of
fees paid to the Agent by the Company for the Services performed by the Agent
pursuant to this Agreement shall be the sole and exclusive remedy for any
damages. This limitation of liability is intended to apply to the
full extent allowed by law, regardless of the grounds or nature of any claim
asserted.
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Section
8 - SURVIVAL OF OBLIGATIONS
The covenants and
agreements of the parties hereto, including Sections 6 and 7 above, will remain
in full force and effect and will survive the consummation of the Stock Offering
and mutual-to-stock conversion or the termination of this Agreement, and the
Agent Group shall be entitled to the benefit of the covenants and agreements
thereafter.
Section
9 - AGREEMENT
a.) This
Agreement contains the entire agreement of the parties with respect to the
subject matter hereof. This Agreement supersedes any other agreements, either
oral or written, among the parties hereto with respect to the specific subject
matter hereof, but not any engagement, underwriting, agency or other agreements
among the parties pursuant to which Xxxxxx Xxxxxxxx is acting as the Company’s
financial advisor, underwriter, placement agent, investment banker or in any
similar capacity. Except for Section 1 e) of this Agreement, each party hereto
acknowledges that no representation, inducement, promise or agreement, written,
oral or otherwise, has been made by any party, or anyone acting on behalf of any
party, which is not embodied or expressly stated herein, and that no other
agreement, statement, or promise not contained in this Agreement shall be valid
or binding in relation to the Services. The Company hereby
acknowledges and agrees that: (i) Xxxxxx Xxxxxxxx has made full and complete
disclosure to the Company of the possibility or existence of any conflict of
interest resulting from Xxxxxx Xxxxxxxx serving as both data processing records
management agent pursuant to this Agreement and as financial advisor,
underwriter, placement agent, investment banker or in any similar capacity
pursuant to a separate agreement and (ii) having received full disclosure
thereof, the Company hereby waives any such conflict of interest and consents to
Xxxxxx Xxxxxxxx serving in such dual capacity.
b.) This
Agreement may be enforced only by the parties hereto and shall be interpreted,
construed, enforced and administered in accordance with the internal substantive
laws (and not the choice of law rules) of the State of New York. Each
of the parties hereto hereby submits to the personal jurisdiction of, and each
agrees that all proceedings relating hereto shall be brought in, courts located
within the State of New York. Each of the parties waives the right to
a trial by a jury. To the extent that in any jurisdiction any party
hereto may be entitled to claim, for itself or its assets, immunity from suit,
execution, attachment (whether before or after judgment) or other legal process,
each hereby irrevocably agrees not to claim, and hereby waives, such
immunity. Each party hereto waives personal service of process and
consents to service of process by certified or registered mail, return receipt
requested, directed to it at the address last specified for notices
hereunder.
c.) This
Agreement may be executed in several counterparts, which taken together, shall
constitute one and the same document. All section headings used herein are for
convenience and ease of reference only and do not constitute part of this
Agreement and shall not be referred to for the purpose of defining,
interpreting, construing or enforcing any of the provisions of this Agreement.
All pronouns and variations thereof shall be deemed to refer to the masculine,
feminine, neuter, singular or plural, as the identity of the party or parties to
this Agreement may require.
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d.) This
Agreement may not be assigned by any party without the prior written consent of
the other parties hereto and any purported assignment made in violation of the
foregoing shall be void and have no legal effect; except that consent is not
required for an assignment to a Xxxxxx Xxxxxxxx affiliate or successor in
interest. This Agreement may be modified only by a written amendment
signed by all of the parties hereto and no waiver of any provision hereof shall
be effective unless expressed in a writing signed by the party to be charged. No
waiver of the breach of any provision or term of this Agreement shall be deemed
or construed to be a waiver of any other or subsequent breach.
e.) No
implied duties or obligations shall be read into this Agreement against the
Agent, and the Agent, in its capacity as such, shall not be bound by any
provision of any agreement between the Company and any other person or entity
other than this Agreement, and the Agent shall have no duty to inquire into, or
to take into account its knowledge of, the terms and conditions of any agreement
made or entered into in connection with this Agreement.
f.)
Should any term or provision, or portion of such provision, of this Agreement be
invalid or unenforceable, the scope thereof or the period covered thereby or
otherwise, such term, provision, or portion of such provision, shall be deemed
to be reduced and limited to enable Xxxxxx Xxxxxxxx or the Company, as
applicable, to enforce it to the maximum extent permissible under the laws and
public policies applied under the jurisdiction in which enforcement is sought.
If any term or provision of this Agreement is held or deemed to be invalid or
unenforceable, in whole or in part, by a court of competent jurisdiction, such
term or provision shall be ineffective to the extent of such invalidity or
unenforceability without rendering invalid or unenforceable the remaining terms
and provisions of this Agreement which shall be construed to preserve, to the
maximum extent permissible, the intent and purposes of this
Agreement. Any such invalidity or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such terms or
provisions in any other jurisdiction.
g.) The
Agent, in furnishing services to the Company under this Agreement, is acting
only as an independent contractor and is not a fiduciary of, nor will its
entering into this Agreement give rise to fiduciary duties to, the
Company. The Agent does not undertake by this Agreement or otherwise
to perform any obligation of the Company, whether regulatory, contractual, or
otherwise. The Agent has the sole right and obligation to supervise,
manage, contract, direct, procure, perform or cause to be performed, all work to
be performed by the Agent under this Agreement unless otherwise provided in this
Agreement. The Company understands and agrees that the Agent may
perform services substantially similar to those to be performed hereunder for
others, and nothing herein is intended to restrict or prohibit the Agent from
performing such services for others.
h.) All
media releases, public announcements and public disclosures by either party or
its agents relating to this Agreement or the subject matter of this
Agreement, but not including any announcement intended solely for internal
distribution at such party or any disclosure required by legal, accounting or
regulatory requirements beyond the reasonable control of such party, shall be
coordinated with and approved by the other party prior to the release thereof,
which approval shall not be unreasonably withheld.
7
Section
10 - NOTICES
Except as
otherwise contemplated by this Agreement, all notices, demands, requests or
other communications which may be or are required to be given, served or sent by
any party to any other party pursuant to this Agreement, other than in the
normal course of conducting the Services, can be by certified or registered
mail, personal delivery or transmitted by any standard form of telecommunication
with proof of delivery addressed as follows:
| (a) | If
to the Agent: Xxxxxx, Xxxxxxxx & Company, Incorporated 0000 Xxxxxx Xxxxxx, Xxxxx 0000 Xxxxxxxxxxxx, XX 00000 Attn: Xxxxxxxx Xxxxxx Telephone: (000) 000-0000 Fax: (000) 000-0000 |
|
|
With
a copy to:
Xxxxxx, Xxxxxxxx & Company, Incorporated 00 Xxxxxxxx Xxxxxxxx Xxxxxxx Xxxx, XX 00000 Attn: Xxxxx Xxxxxxx Telephone: (000) 000-0000 Fax: (000) 000-0000 |
||
|
If
to the Company:
Colonial Bankshares, Inc. 0000 Xxxxx Xxxxxx Xxxxx Xxxxxxxx, XX 00000 Attn: Xxxxxx X. Xxxxxxx Telephone: (000) 000-0000 x0000 Fax: (000) 000-0000 |
||
|
With
a copy to:
Xxxx Xxxxxx Xxxxxxxx & Xxxxxx, P.C. 0000 Xxxxxxxxx Xxxxxx, XX Xxxxx 000 Xxxxxxxxxx, X.X. 20015 Attn: Xxxx Xxxx Telephone: (000) 000-0000 Fax: (000) 000-0000 |
Each
party may designate by notice in writing a new address/addressee to which any
notice, demand, request or communication may thereafter be
provided.
8
