2,123,393 Shares
(subject to increase up to 2,441,902 shares
in the event of an oversubscription)
ROME BANCORP, INC.
(a Delaware corporation)
Common Stock
(par value $.01 per share)
AGENCY AGREEMENT
[____________________], 0000
Xxxxxxx X'Xxxxx & Partners, L.P.
Two World Trade Center, 000xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Rome Bancorp, Inc., a Delaware corporation (the "Company"), The Rome
Savings Bank, a New York savings bank (the "Bank") and Rome, MHC ("MHC"), hereby
confirm their agreement with Sandler X'Xxxxx & Partners, L.P. ("Sandler X'Xxxxx"
or the "Agent") with respect to the offer and sale by the Company of 2,123,393
shares (subject to increase up to 2,441,902 shares in the event of an
oversubscription) of the Company's common stock, par value $.01 per share (the
"Common Stock"). The shares of Common Stock to be sold by the Company are
hereinafter called the "Securities." In addition, as described herein, the
Company expects to contribute $100,000 in cash and shares of Common Stock in an
amount equal to 2.0% of the shares of Common Stock issued in the Offerings (as
hereinafter defined) to the Rome Savings Foundation (the "Foundation"), such
shares hereinafter being referred to as the "Foundation Shares."
The Securities are being offered for sale and the Foundation Shares
are being contributed in accordance with the plan of reorganization (the "Plan")
adopted by the Board of Trustees of the Bank pursuant to which the Bank intends
to reorganize into a mutual holding company structure and issue all of its stock
to the Company. In addition, pursuant to the Plan, the Company will offer and
sell up to 2,123,393 shares of its common stock, par value $.01 per share, in a
subscription offering to the Bank's tax qualified employee benefit plans,
including the Employee Stock Ownership Plan (the "ESOP") (collectively, the
"Employee Plans"), to certain of the Bank's depositors and to the Bank's
trustees, officers and employees ("the Subscription Offering"). To the extent
Securities are not subscribed for in the Subscription Offering, such Securities
may be offered
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to certain members of the general public, with preference given to certain of
the Bank's depositors and to natural persons residing in Oneida County, New
York, in a direct community offering (the "Community Offering" and together with
the Subscription Offering, as each may be extended or reopened from time to
time, the "Subscription and Community Offering") to be commenced concurrently
with or subsequent to the Subscription Offering. It is currently anticipated by
the Bank and the Company that any Securities not subscribed for in the
Subscription and Community Offering will be offered, subject to Section 2
hereof, in a syndicated community offering (the "Syndicated Community
Offering"). The Subscription Offering and the Syndicated Community Offering are
hereinafter referred to collectively as the "Offerings," and the reorganization
of the Bank from mutual to stock form, the acquisition of the capital stock of
the Bank by the Company and the Offerings are hereinafter referred to
collectively as the "Reorganization." It is acknowledged that the price of the
securities may be decreased and the number of Securities to be sold in the
Reorganization may be increased or decreased as described in the Prospectus (as
hereinafter defined). If the number of Securities is increased or decreased in
accordance with the Plan, the term "Securities" shall mean such greater or
lesser number, where applicable. In the event that a holding company form of
organization is not utilized, all pertinent terms of this Agreement will apply
to the reorganization of the Bank from the mutual to stock form of organization
and the sale of the Bank's common stock.
In connection with the Reorganization and pursuant to the terms of the Plan
as described in the Prospectus, the Company has established the Foundation.
Immediately following the consummation of the Reorganization, and in compliance
with certain conditions as may be imposed by regulatory authorities, the Company
will contribute $100,000 in cash and newly issued shares of Common Stock in an
amount equal to 2.0% of the Securities sold in the Offering, or between 27,466
and 37,159 shares of Common Stock (subject to increase in certain circumstances
to 42,733 shares).
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form SB-2 (No. 333-[____]), including
a related prospectus, for the registration of the Securities and the Foundation
Shares under the Securities Act of 1933, as amended (the "Securities Act"), has
filed such amendments thereto, if any, and such amended prospectuses as may have
been required to the date hereof by the Commission in order to declare such
registration statement effective, and will file such additional amendments
thereto and such amended prospectuses and prospectus supplements as may
hereafter be required. Such registration statement (as amended to date, if
applicable, and as from time to time amended or supplemented hereafter) and the
prospectuses constituting a part thereof (including in each case all documents
incorporated or deemed to be incorporated by reference therein and the
information, if any, deemed to be a part thereof pursuant to the rules and
regulations of the Commission under the Securities Act, as from time to time
amended or supplemented pursuant to the Securities Act or otherwise (the
"Securities Act Regulations")), are hereinafter referred to as the "Registration
Statement" and the "Prospectus," respectively, except that if any revised
prospectus shall be used by the Company in connection with the Subscription and
Community Offering or the Syndicated Community Offering which differs from the
Prospectus on file at the Commission at the time the Registration Statement
becomes effective (whether or not such revised prospectus is required to be
filed by the Company pursuant to Rule 424(b) of the Securities Act Regulations),
the term "Prospectus" shall refer to such revised prospectus from and after the
time it is first provided to the Agent for such use.
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Concurrently with the execution of this Agreement, the Company is
delivering to the Agent copies of the Prospectus of the Company to be used in
the Subscription and Community Offering. Such prospectus contains information
with respect to the Bank, the Company and the Common Stock.
SECTION 1. Representations and Warranties.
(a) The Company, the MHC and the Bank jointly and severally
represent and warrant to the Agent as of the date hereof as follows:
(i) The Registration Statement has been declared effective by
the Commission, no stop order has been issued with respect thereto and no
proceedings therefor have been initiated or, to the knowledge of the
Company, the MHC and the Bank, threatened by the Commission. At the time
the Registration Statement became effective and at the Closing Time
referred to in Section 2 hereof, the Registration Statement complied and
will comply in all material respects with the requirements of the
Securities Act and the Securities Act Regulations and did not and will not
contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading. The Prospectus, at the date hereof does not and at
the Closing Time referred to in Section 2 hereof will not, include an
untrue statement of a material fact or omit 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; provided,
however, that the representations and warranties in this subsection shall
not apply to statements in or omissions from the Registration Statement or
Prospectus made in reliance upon and in conformity with information with
respect to the Agent furnished to the Company in writing by the Agent
expressly for use in the Registration Statement or Prospectus (the "Agent
Information," which the Company, the MHC and the Bank acknowledge appears
only in the sections captioned "Market for the Common Stock" and the first
two paragraphs of the section "The Reorganization and the Offering -
Marketing and Underwriting Arrangements" of the Prospectus).
(ii) The Company has filed with the Federal Reserve Board ("FRB")
the Company's application for approval of its acquisition of the Bank (the
"Holding Company Application") on Form Y-3 promulgated under the Bank
Holding Company Act of 1956, as amended ("BHCA") and the regulations
promulgated thereunder. The Company has received written notice from the
FRB of its approval of the acquisition of the Bank, such approval remains
in full force and effect and no order has been issued by the FRB suspending
or revoking such approval and no proceedings therefor have been initiated
or, to the knowledge of the Company, the MHC or the Bank, threatened by the
FRB. At the date of such approval and at the Closing Time referred to in
Section 2, the Holding Company Application complied and will comply in all
material respects with the applicable provisions of BHCA and the
regulations promulgated thereunder.
(iii) In accordance with the rules and regulations of the New
York State Banking Department (the "Department") and the rules and
regulations of the Federal Deposit Insurance Corporation ("FDIC") (the "MHC
Regulations"), the Bank has filed with the Department and the FDIC, a
Notice of Intent to Convert to Stock Form (the "Notice") and
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an Application for Approval of a Mutual Savings Bank Holding Company
Reorganization (the "MHC Application"), including the Prospectus and the
Conversion Valuation Appraisal Report prepared by RP Financial, LC (the
"Appraisal") and has filed such amendments thereto as may have been
required by the Department and the FDIC. The Notice and the MHC Application
are collectively referred to as the "Reorganization Applications."
(iv) At the time of their use, the Proxy Statement and any other
proxy solicitation materials will comply in all material respects with the
applicable provisions of the MHC Regulations and will not contain an untrue
statement of a material fact or omit 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. The Company, the MHC and the
Bank will promptly file the Prospectus and any supplemental sales
literature with the Commission, the Department and the FDIC. The
Prospectus and all supplemental sales literature, as of the date the
Registration Statement became effective and at the Closing Time referred to
in Section 2, complied and will comply in all material respects with the
applicable requirements of the Department and the FDIC and, at or prior to
the time of their first use, will have received all required authorizations
of the Department and the FDIC for use in final form.
(v) Neither the Commission, the Department nor the FDIC has, by
order or otherwise, prevented or suspended the use of the Prospectus or any
supplemental sales literature authorized by the Company, the MHC or the
Bank for use in connection with the Offerings.
(vi) At the Closing Time referred to in Section 2, the Company,
the MHC and the Bank will have completed the conditions precedent to the
Reorganization and the establishment of the Foundation in accordance with
the Plan, the applicable MHC Regulations and all other applicable laws,
regulations, decisions and orders, including all material terms,
conditions, requirements and provisions precedent to the Reorganization
imposed upon the Company, the MHC or the Bank by the FRB, the Department,
the FDIC, or any other regulatory authority, other than those which the
regulatory authority permits to be completed after the Reorganization.
(vii) RP Financial, L.C. ("RP Financial"), which prepared the
valuation of the Bank as part of the Reorganization, has advised the
Company, the MHC and the Bank in writing that it satisfies all requirements
for an appraiser set forth in the Regulations of the Department and the MHC
Regulations and any interpretations or guidelines issued by the Department
and the FDIC with respect thereto. [______________], which prepared the
opinion filed as Exhibit [___] of the MHC Application as required by the
MHC Regulations, satisfies all requirements for an "independent executive
compensation expert" within the meaning of the MHC Regulations.
(viii) The accountants who certified the consolidated financial
statements and supporting schedules of the Bank included in the
Registration Statement have advised the Company, the MHC and the Bank in
writing that they are independent public accountants within the meaning of
the Code of Ethics of the American Institute of Certified Public
Accountants (the "AICPA"), and such accountants are, with respect to the
Company, the
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MHC, the Bank and each subsidiary of the Bank, independent certified public
accountants as required by the Securities Act and the Securities Act
Regulations.
(ix) The only subsidiaries of the Bank are 100 On the Mall
Corporation, Clocktower Insurance Agency Incorporated and Clocktower
Financial Corporation.
(x) The consolidated financial statements and the related notes
thereto included in the Registration Statement and the Prospectus present
fairly the financial position of the Company, the MHC, the Bank and its
consolidated subsidiaries at the dates indicated and the results of
operations, equity and cash flows for the periods specified, and comply as
to form in all material respects with the applicable accounting
requirements of the Securities Act Regulations and the MHC Regulations;
except as otherwise stated in the Registration Statement, said financial
statements have been prepared in conformity with generally accepted
accounting principles applied on a consistent basis; and the supporting
schedules and tables included in the Registration Statement present fairly
the information required to be stated therein.
(xi) Since the respective dates as of which information is given
in the Registration Statement and the Prospectus, except as otherwise
stated therein (A) there has been no material adverse change in the
financial condition, results of operations or business affairs of the
Company, the MHC, the Bank and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business, and
(B) except for transactions specifically referred to or contemplated in the
Prospectus, there have been no transactions entered into by the Company,
the MHC, the Bank or any of its subsidiaries other than those in the
ordinary course of business, which are material with respect to the
Company, the MHC, the Bank and its subsidiaries considered as one
enterprise.
(xii) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State of
Delaware with corporate power and authority to own, lease and operate its
properties and to conduct its business as described in the Prospectus and
to enter into and perform its obligations under this Agreement; and the
Company is duly qualified as a foreign corporation to transact business and
is in good standing in the State of Delaware and in each jurisdiction in
which such qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the failure to
so qualify would not have a material adverse effect on the financial
condition, results of operations or business affairs of the Company, the
MHC, the Bank and its subsidiaries considered as one enterprise. The MHC
has been duly organized and is validly existing as a New York chartered
mutual holding company in good standing under the laws of the state of New
York with the power and authority to own, lease and operate its properties
and to conduct its business as described in the Prospectus and to enter
into and perform its obligations under this Agreement; and the MHC is duly
qualified as a foreign entity to transact business and is in good standing
in each jurisdiction in which such qualification is required, whether by
reason of the ownership or leasing of property or the conduct of business,
except where the failure to so qualify would not have a material adverse
effect on the financial condition, results of operations or business
affairs of the Company, the MHC, the Bank and its subsidiaries considered
as one enterprise.
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(xiii) Upon consummation of the Reorganization and the
contribution of the Foundation Shares as described in the Prospectus, the
authorized, issued and outstanding capital stock of the Company will be as
set forth in the Prospectus under "Capitalization" (except for subsequent
issuances, if any, pursuant to reservations, agreements or employee benefit
plans referred to in the Prospectus); no shares of Common Stock have been
or will be issued and outstanding prior to the Closing Time referred to in
Section 2; at the time of Reorganization, the Securities will have been
duly authorized for issuance and, when issued and delivered by the Company
pursuant to the Plan against payment of the consideration calculated as set
forth in the Plan and stated on the cover page of the Prospectus, will be
duly and validly issued and fully paid and non-assessable; the terms and
provisions of the Common Stock and the capital stock of the Company conform
to all statements relating thereto contained in the Prospectus; the
certificates representing the shares of Common Stock conform to the
requirements of applicable law and regulations; and the issuance of the
Securities is not subject to preemptive or other similar rights.
(xiv) The Bank, as of the date hereof, is a New York chartered
savings bank in mutual form and upon consummation of the Reorganization
will be a New York chartered savings bank in stock form, in both instances
with full corporate power and authority to own, lease and operate its
properties and to conduct its business as described in the Prospectus; the
Company, the MHC, the Bank and its subsidiaries have obtained all licenses,
permits and other governmental authorizations currently required for the
conduct of their respective businesses or required for the conduct of their
respective businesses as contemplated by the Holding Company Application,
the Notice and the MHC Application, except where the failure to obtain
such licenses, permits or other governmental authorizations would not have
a material adverse effect on the financial condition, results of operations
or business affairs of the Company, the MHC, the Bank and its subsidiaries
considered as one enterprise; all such licenses, permits and other
governmental authorizations are in full force and effect and the Company,
the MHC, the Bank and its subsidiaries are in all material respects in
compliance therewith; none of the Company, the MHC, the Bank nor any of the
Bank's subsidiaries has received notice of any proceeding or action
relating to the revocation or modification of any such license, permit or
other governmental authorization which, singly or in the aggregate, if the
subject of an unfavorable decision, ruling or finding, might have a
material adverse effect on the financial condition, results of operations
or business affairs of the Company, the MHC, the Bank and its subsidiaries
considered as one enterprise; and the Bank is in good standing under the
laws of New York and is qualified to transact business as a foreign
corporation in any jurisdiction in which the failure to so qualify would
have a material adverse effect on the financial condition, results of
operations or business affairs of the Company, the MHC, the Bank and its
subsidiaries considered as one enterprise.
(xv) The deposit accounts of the Bank are insured by the FDIC up
to the applicable limits and upon consummation of the Reorganization, the
liquidation account for the benefit of eligible account holders and
supplemental eligible account holders will be duly established in
accordance with the requirements of the Department and MHC Regulations. The
Bank is a "qualified thrift lender" within the meaning of 12 U.S.C. Section
1467a(m).
(xvi) Upon consummation of the Reorganization, the authorized
capital stock of the Bank will be 5,000,000 shares of common stock, par
value $.01 per share (the
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"Bank Common Stock") and100,000 shares of preferred stock, par value $.01
per share (the "Bank Preferred Stock"), and the issued and outstanding
capital stock of the Bank will be [1,000] shares of Bank Common Stock and
no shares of the Bank Preferred Stock, and no shares of Bank Common Stock
or Bank Preferred Stock have been or will be issued prior to the Closing
time referred to in Section 2; and as of Closing Time referred to in
Section 2, all of the issued and outstanding capital stock of the Bank will
be duly authorized, validly issued and fully paid and nonassessable and
have been issued in compliance with all federal and state securities laws.
The shares of Bank Common Stock to be issued to the Company will have been
duly authorized for issuance and, when issued and delivered by the Bank
pursuant to the Plan against payment of the consideration calculated as set
forth in the Plan and as described in the Prospectus, will be duly and
validly issued and fully paid and nonassessable, and all such Bank Common
Stock will be owned beneficially and of record by the Company free and
clear of any security interest, mortgage, pledge, lien, encumbrance or
legal or equitable claim; the terms and provisions of the Bank Common Stock
and the Bank Preferred Stock conform to all statements relating thereto
contained in the Prospectus, and the certificates representing the shares
of the Bank Common Stock will conform with the requirements of applicable
laws and regulations; and the issuance of the Bank Common Stock is not
subject to preemptive or similar rights.
(xvii) The Foundation has been duly authorized, incorporated and is
validly existing as a non stock corporation in good standing under the laws
of the State of Delaware with corporate power and authority to own, lease
and operate its properties and to conduct its business as described in the
Prospectus; the Foundation will not be a bank holding company withing the
meaning of 12 C.F.R. Section 574.2(q) as a result of the issuance of shares
of Common Stock to it in accordance with the terms of the Plan and in the
amounts as described in the Prospectus; no approvals are required to
establish the Foundation and to contribute the shares of Common Stock
thereto as described in the Prospectus other than those imposed by the
Department and the FDIC; except as specifically disclosed in the Prospectus
and the Proxy Statement, there are no agreements and/or understandings,
written or oral, between the Company, the MHC and/or the Bank and the
Foundation with respect to the control, directly or indirectly, over the
voting and the acquisition or disposition of the Foundation Shares; at the
time of the Reorganization, the Foundation Shares will have been duly
authorized for issuance and, when issued and contributed by the Company
pursuant to the Plan, will be duly and validly issued and fully paid and
non-assessable; and the issuance of the Foundation Shares is not subject to
preemptive or similar rights.
(xviii) Each direct and indirect subsidiary of the Bank has been
duly incorporated and is validly existing as a corporation in good standing
under the laws of the jurisdiction of its incorporation, has full corporate
power and authority to own, lease and operate its properties and to conduct
its business as described in the Registration Statement and Prospectus, and
is duly qualified to transact business and is in good standing in each
jurisdiction in which such qualification is required, whether by reason of
the ownership or leasing of property or the conduct of business, except
where the failure to so qualify would not have a material adverse effect on
the financial condition, results of operations or business affairs of the
Company, the MHC, the Bank and its subsidiaries considered as one
enterprise; the activities of each such subsidiary are permitted to
subsidiaries of a New York state chartered savings bank by the rules,
regulations, resolutions and practices of the Department;
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all of the issued and outstanding capital stock of each such subsidiary has
been duly authorized and validly issued, is fully paid and nonassessable
and is owned by the Bank, directly, free and clear of any security
interest, mortgage, pledge, lien, encumbrance or legal or equitable claim.
(xix) The Company, the MHC and the Bank have taken all corporate
action necessary for them to execute, deliver and perform this Agreement,
and this Agreement has been duly executed and delivered by, and is the
valid and binding agreement of, the Company, the MHC, and the Bank,
enforceable in accordance with its terms, except as may be limited by
bankruptcy, insolvency or other laws affecting the enforceability of the
rights of creditors generally and judicial limitations on the right of
specific performance and except as the enforceability of indemnification
and contribution provisions may be limited by applicable securities laws.
(xx) Subsequent to the respective dates as of which information
is given in the Registration Statement and the Prospectus and prior to the
Closing Time, except as otherwise may be indicated or contemplated therein,
none of the Company, the MHC, the Bank or any subsidiary of the Bank will
have (A) issued any securities or incurred any liability or obligation,
direct or contingent, or borrowed money, except borrowings in the ordinary
course of business from the same or similar sources and in similar amounts
as indicated in the Prospectus, or (B) entered into any transaction or
series of transactions which is material in light of the business of the
Company, the MHC, the Bank and its subsidiaries, taken as a whole,
excluding the origination, purchase and sale of loans or the purchase or
sale of investment securities or mortgaged-backed securities in the
ordinary course of business.
(xxi) No approval of any regulatory or supervisory or other
public authority is required in connection with the execution and delivery
of this Agreement or the issuance of the Securities and the Foundation
Shares that has not been obtained and a copy of which has been delivered to
the Agent, except as may be required under the securities laws of various
jurisdictions.
(xxii) None of the Company, the MHC, the Bank nor any of the
Bank's subsidiaries is in violation of its certificate of incorporation,
organization certificate, articles of incorporation or charter, as the case
may be, or bylaws (and the Bank will not be in violation of its charter or
bylaws in stock form upon consummation of the Reorganization); and none of
the Company, the MHC, the Bank nor any of the Bank's subsidiaries is in
default (nor has any event occurred which, with notice or lapse of time or
both, would constitute a default) in the performance or observance of any
obligation, agreement, covenant or condition contained in any contract,
indenture, mortgage, loan agreement, note, lease or other instrument to
which the Company, the MHC, the Bank or any of its subsidiaries is a party
or by which it or any of them may be bound, or to which any of the property
or assets of the Company, the MHC, the Bank or any of its subsidiaries is
subject, except for such defaults that would not, individually or in the
aggregate, have a material adverse effect on the financial condition,
results of operations or business of the Company, the MHC, the Bank and its
subsidiaries considered as one enterprise; and there are no contracts or
documents of the Company, the MHC, the Bank or any of the Bank's
subsidiaries which are required to be
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filed as exhibits to the Registration Statement or the MHC Application
which have not been so filed.
(xxiii) The execution, delivery and performance of this
Agreement and the consummation of the transactions contemplated herein have
been duly authorized by all necessary corporate action and do not and will
not conflict with or constitute a breach of, or default under, or result in
the creation or imposition of any lien, charge or encumbrance upon any
property or assets of the Company, the MHC, the Bank or any of its
subsidiaries pursuant to, any contract, indenture, mortgage, loan
agreement, note, lease or other instrument to which the Company, the MHC,
the Bank or any of its subsidiaries is a party or by which it or any of
them may be bound, or to which any of the property or assets of the
Company, the MHC, the Bank or any of its subsidiaries is subject, except
for such defaults that would not, individually or in the aggregate, have a
material adverse effect on the financial condition, results of operations
or business affairs of the Company, the MHC, the Bank and its subsidiaries
considered as one enterprise; nor will such action result in any violation
of the provisions of the certificate of incorporation, organization
certificate, articles of incorporation or charter or by-laws of the
Company, the MHC, the Bank or any of its subsidiaries, or any applicable
law, administrative regulation or administrative or court decree.
(xxiv) No labor dispute with the employees of the Company, the
MHC, the Bank or any of its subsidiaries exists or, to the knowledge of the
Company, the MHC or the Bank, is imminent or threatened; and the Company,
the MHC and the Bank are not aware of any existing or threatened labor
disturbance by the employees of any of its principal suppliers or
contractors which might be expected to result in any material adverse
change in the financial condition, results of operations or business
affairs of the Company, the MHC, the Bank and its subsidiaries considered
as one enterprise.
(xxv) Each of the Company, the MHC, the Bank and its
subsidiaries have good and marketable title to all properties and assets
for which ownership is material to the business of the Company, the MHC,
the Bank or its subsidiaries and to those properties and assets described
in the Prospectus as owned by them, free and clear of all liens, charges,
encumbrances or restrictions, except such as are described in the
Prospectus or are not material in relation to the business of the Company,
the MHC, the Bank or its subsidiaries considered as one enterprise; and all
of the leases and subleases material to the business of the Company, the
MHC, the Bank or its subsidiaries under which the Company, the MHC, the
Bank or its subsidiaries hold properties, including those described in the
Prospectus, are valid and binding agreements of the Company, the MHC, the
Bank and its subsidiaries, enforceable in accordance with their terms
(except as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization and similar laws of general applicability
relating to or affecting creditors' rights or by general principles of
equity).
(xxvi) None of the Company, the MHC, the Bank nor its
subsidiaries are in violation of any directive from the Department, FRB or
FDIC to make any material change in the method of conducting their
respective businesses; the Bank and its subsidiaries have conducted and are
conducting their business so as to comply in all material respects with all
applicable statutes, regulations and administrative and court decrees
(including, without
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limitation, all regulations, decisions, directives and orders of the
Department, FRB and FDIC).
(xxvii) There is no action, suit or proceeding before or by any
court or governmental agency or body, domestic or foreign, now pending, or,
to the knowledge of the Company, the MHC or the Bank, threatened, against
or affecting the Company, the MHC, the Bank or any of its subsidiaries
which is required to be disclosed in the Registration Statement (other than
as disclosed therein), or which might result in any material adverse change
in the financial condition, results of operations or business affairs of
the Company, the MHC, the Bank and its subsidiaries considered as one
enterprise, or which might materially and adversely affect the properties
or assets thereof or which might materially and adversely affect the
consummation of the Reorganization; all pending legal or governmental
proceedings to which the Company, the MHC, the Bank or any subsidiary is a
party or of which any of their respective property or assets is the subject
which are not described in the Registration Statement, including ordinary
routine litigation incidental to the business, are considered in the
aggregate not material; and there are no contracts or documents of the
Company, the MHC, the Bank or any of its subsidiaries which are required to
be filed as exhibits to the Registration Statement or the MHC Application
which have not been so filed.
(xxviii) The Bank has obtained an opinion of its counsel, Xxxxxxx
Xxxxxxxx & Xxxx, with respect to the legality of the Securities to be
issued and federal income tax consequences of the Reorganization, copies of
which are filed as exhibits to the Registration Statement. The Federal
income tax consequences of the Foundation and certain matters relating to
state taxation will be passed upon by KPMG LLP. Material aspects of the
aforesaid opinions are accurately summarized in the Prospectus; the facts
and representations upon which such opinions are based are truthful,
accurate and complete in all material respects; and neither the Bank, the
MHC nor the Company has taken or will take any action inconsistent
therewith.
(xxix) The Company is not required to be registered under the
Investment Company Act of 1940, as amended.
(xxx) All of the loans represented as assets on the most
recent consolidated financial statements or consolidated selected financial
information of the Bank included in the Prospectus meet or are exempt from
all requirements of federal, state or local law pertaining to lending,
including without limitation truth in lending (including the requirements
of Regulations Z and 12 C.F.R. Part 226 and Section 563.99), real estate
settlement procedures, consumer credit protection, equal credit opportunity
and all disclosure laws applicable to such loans, except for violations
which, if asserted, would not result in a material adverse effect on the
financial condition, results of operations or business of the Company, the
MHC, the Bank and its subsidiaries considered as one enterprise.
(xxxi) To the knowledge of the Company, the MHC and the Bank,
with the exception of the intended loan to the Bank's ESOP by the Company
to enable the ESOP to purchase shares of Common Stock in an amount of up to
8% of the Common Stock issued in the Reorganization, none of the Company,
the Bank or employees of the Bank has made any payment of funds of the
Company, the MHC or the Bank as a loan for the purchase of
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the Common Stock or made any other payment of funds prohibited by law, and
no funds have been set aside to be used for any payment prohibited by law.
(xxxii) The Company, the MHC, the Bank and its subsidiaries are
in compliance in all material respects with the applicable financial record
keeping and reporting requirements of the Currency and Foreign Transaction
Reporting Act of 1970, as amended, and the rules and regulations
thereunder.
(xxxiii) None of the Company, the MHC, the Bank nor its
subsidiaries nor any properties owned or operated by the Company, the Bank
or its subsidiaries is in violation of or liable under any Environmental
Law (as defined below), except for such violations or liabilities that,
individually or in the aggregate, would not have a material adverse effect
on the financial condition, results of operations or business affairs of
the Company, the MHC, the Bank and its subsidiaries considered as one
enterprise. There are no actions, suits or proceedings, or demands,
claims, notices or investigations (including, without limitation, notices,
demand letters or requests for information from any environmental agency)
instituted or pending, or to the knowledge of the Company, the MHC or the
Bank threatened, relating to the liability of any property owned or
operated by the Company, the MHC, the Bank or any of its subsidiaries under
any Environmental Law. For purposes of this subsection, the term
"Environmental Law" means any federal, state, local or foreign law,
statute, ordinance, rule, regulation, code, license, permit, authorization,
approval, consent, order, judgment, decree, injunction or agreement with
any regulatory authority relating to (i) the protection, preservation or
restoration of the environment (including, without limitation, air, water,
vapor, surface water, groundwater, drinking water supply, surface soil,
subsurface soil, plant and animal life or any other natural resource),
and/or (ii) the use, storage, recycling, treatment, generation,
transportation, processing, handling, labeling, production, release or
disposal of any substance presently listed, defined, designated or
classified as hazardous, toxic, radioactive or dangerous, or otherwise
regulated, whether by type or by quantity, including any material
containing any such substance as a component.
(xxxiv) The Company, the MHC, the Bank and its subsidiaries
have filed all federal income and state and local franchise tax returns
required to be filed and have made timely payments of all taxes shown as
due and payable in respect of such returns, and no deficiency has been
asserted with respect thereto by any taxing authority.
(xxxv) The Company has received approval, subject to
regulatory approval to consummate the Offerings and issuance, to have the
Securities and Foundation Shares quoted on the Nasdaq Stock Market
("Nasdaq") effective as of the Closing Time referred to in Section 2
hereof.
(xxxvi) The Company has filed a registration statement for the
Common Stock under Section 12(g) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act") and has requested that such registration statement
be effective concurrent with the effectiveness of the Registration Statement.
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(b) Any certificate signed by any officer of the Company, the
MHC or the Bank and delivered to either of the Agent or counsel for the Agent
shall be deemed a representation and warranty by the Company, the MHC or the
Bank to each Agent as to the matters covered thereby.
SECTION 2. APPOINTMENT OF SANDLER X'XXXXX; SALE AND DELIVERY OF
THE SECURITIES; CLOSING.
On the basis of the representations and warranties herein
contained and subject to the terms and conditions herein set forth, the Company
hereby appoints Sandler X'Xxxxx as its Agent to consult with and advise the
Company, and to assist the Company with the solicitation of subscriptions and
purchase orders for Securities, in connection with the Company's sale of Common
Stock in the Subscription and Community Offering and the Syndicated Community
Offering. On the basis of the representations and warranties herein contained,
and subject to the terms and conditions herein set forth, Sandler X'Xxxxx
accepts such appointment and agrees to use its best efforts to assist the
Company with the solicitation of subscriptions and purchase orders for
Securities in accordance with this Agreement; provided, however, that the Agent
shall not be obligated to take any action which is inconsistent with any
applicable laws, regulations, decisions or orders. The services to be rendered
by Sandler X'Xxxxx pursuant to this appointment include the following: (i)
consulting as to the securities marketing implications of any aspect of the Plan
of Reorganization or related corporate documents; (ii) reviewing with the Board
of Directors of the Company and the Board of Trustees of the Bank the
independent appraiser's appraisal of the common stock, particularly with regard
to aspects of the appraisal involving the methodology employed; (iii) reviewing
all offering documents, including the Prospectus, stock order forms and related
offering materials (it being understood that preparation and filing of such
documents is the sole responsibility of the Company, the MHC and the Bank and
their counsel); (iv) assisting in the design and implementation of a marketing
strategy for the Offerings; (v) assisting the Company, the MHC and the Bank in
obtaining all requisite regulatory approvals; (vi) assisting Bank management in
scheduling and preparing for meetings with potential investors and broker-
dealers; and (vii) providing such other general advice and assistance as may be
requested to promote the successful completion of the Offerings.
The appointment of the Agent hereunder shall terminate upon the
earlier to occur of (a) forty-five (45) days after the last day of the
Subscription and Community Offering, unless the Company and the Agent agree in
writing to extend such period and the FDIC and the Department agree to extend
the period of time in which the Securities may be sold, or (b) the receipt and
acceptance of subscriptions and purchase orders for all of the Securities, or
(c) the completion of the Syndicated Community Offering.
If any of the Securities remain available after the expiration of
the Subscription and Community Offering, at the request of the Company, the MHC
and the Bank, Sandler X'Xxxxx will seek to form a syndicate of registered
brokers or dealers ("Selected Dealers") to assist in the solicitation of
purchase orders of such Securities on a best efforts basis, subject to the terms
and conditions set forth in a selected dealers' agreement (the "Selected
Dealers' Agreement"), substantially in the form set forth in Exhibit A to this
Agreement. Sandler X'Xxxxx will endeavor to limit the aggregate fees to be paid
by the Company, the MHC and the Bank under any such Selected Dealers' Agreement
to an amount competitive with gross underwriting discounts charged at such time
for underwritings of comparable amounts of stock sold at a comparable price per
share in a
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similar market environment; provided, however, that the aggregate fees payable
to Xxxxxx X'Xxxxx and Selected Dealers shall not exceed 6% of the aggregate
Purchase Price of the Securities sold by such Selected Dealers. Sandler X'Xxxxx
will endeavor to distribute the Securities among the Selected Dealers in a
fashion which best meets the distribution objective of the Company and the
requirements of the Plan, which may result in limiting the allocation of stock
to certain Selected Dealers. It is understood that in no event shall Sandler
X'Xxxxx be obligated to act as a Selected Dealer or to take or purchase any
Securities.
In the event the Company is unable to sell at least the total
minimum of the Securities, as set forth on the cover page of the Prospectus,
within the period herein provided, this Agreement shall terminate and the
Company shall refund to any persons who have subscribed for any of the
Securities the full amount which it may have received from them, together with
interest as provided in the Prospectus, and no party to this Agreement shall
have any obligation to the others hereunder, except for the obligations of the
Company, the MHC and the Bank as set forth in Sections 4, 6(a) and 7 hereof and
the obligations of the Agent as provided in Sections 6(b) and 7 hereof.
Appropriate arrangements for placing the funds received from subscriptions for
Securities or other offers to purchase Securities in special interest-bearing
accounts with the Bank until all Securities are sold and paid for were made
prior to the commencement of the Subscription Offering, with provision for
refund to the purchasers as set forth above, or for delivery to the Company if
all Securities are sold.
If at least the total minimum of Securities, as set forth on the
cover page of the Prospectus, are sold, the Company agrees to issue or have
issued the Securities sold and to release for delivery certificates for such
Securities at the Closing Time, against payment therefor by release of funds
from the special interest-bearing accounts referred to above. The closing shall
be held at the legal office of Xxxxxxx Xxxxxxxx & Wood, at 10:00 a.m., local
time, or at such other place and time as shall be agreed upon by the parties
hereto, on a business day to be agreed upon by the parties hereto. The Company
shall notify the Agent by telephone, confirmed in writing, when funds shall have
been received for all the Securities. Certificates for Securities shall be
delivered directly to the purchasers thereof in accordance with their
directions. Notwithstanding the foregoing, certificates for Securities purchased
through Selected Dealers shall be made available to the Agent for inspection at
least 48 hours prior to the Closing Time at such office as the Agent shall
designate. The hour and date upon which the Company shall release for delivery
all of the Securities, in accordance with the terms hereof, is herein called the
"Closing Time."
The Company will pay any stock issue and transfer taxes which may
be payable with respect to the sale of the Securities.
In addition to reimbursement of the expenses specified in Section
4 hereof, the Agent will receive the following compensation for its services
hereunder:
(a) Two percent (2%) of the aggregate Actual Purchase Price of
the Securities sold in the Subscription and Community Offering, excluding
in each case shares purchased by (i) any employee benefit plan of the
Company or the Bank established for the benefit of their respective
directors, officers and employees and (ii) any director, officer or
employee of the Company or the Bank or members of their immediate families
(which term shall mean parents, grandparents, spouse, siblings, children
and grandchildren); and
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(b) with respect to any Securities sold by an NASD member firm
(other than Sandler X'Xxxxx) under the Selected Dealers' Agreement in the
Syndicated Community Offering, (i) the sales commission payable to Selected
Dealers under any Selected Dealers' Agreement, (ii) any sponsoring dealer's
fees, and (iii) a management fee to Sandler X'Xxxxx of one and one-half
percent (1.5%). Any fees payable to Sandler X'Xxxxx for Securities sold by
Sandler X'Xxxxx under any such agreement shall be limited to an aggregate
of two percent (2%) of the Actual Purchase Price of such Securities.
If this Agreement is terminated by the Agent in accordance with
the provisions of Section 9(a) hereof or the Reorganization is terminated by the
Company or the Bank, no fee shall be payable by the Company or the Bank to
Sandler X'Xxxxx; however, the Company or the Bank shall reimburse the Agent for
all of its reasonable out-of-pocket expenses incurred prior to termination,
including the reasonable fees and disbursements of counsel for the Agent in
accordance with the provisions of Section 4 hereof.
All fees payable to the Agent hereunder shall be payable in cash
at Closing Time, or upon the termination of this Agreement, as the case may be.
In recognition of the long lead times involved in the reorganization process,
the Bank agrees to make advance payments to the Agent in the aggregate amount of
$50,000, $25,000 of which has been previously paid and the remaining $25,000 of
which shall be payable upon commencement of the Subscription Offering, which
shall be credited against any fees or reimbursement of expenses payable
hereunder.
SECTION 3. COVENANTS OF THE COMPANY, THE MHC AND THE BANK. The
Company, the MHC and the Bank covenant with the Agent as follows:
(a) The Company, the MHC and the Bank will prepare and file such
amendments or supplements to the Registration Statement, the Prospectus,
the MHC Application, the Notice and the Proxy Statement as may hereafter be
required by the Securities Act Regulations or the MHC Regulations or as may
hereafter be requested by the Agent. Following completion of the
Subscription and Community Offering, in the event of a Syndicated Community
Offering, the Company, the MHC and the Bank will (i) promptly prepare and
file with the Commission a post-effective amendment to the Registration
Statement relating to the results of the Subscription and Community
Offering, any additional information with respect to the proposed plan of
distribution and any revised pricing information or (ii) if no such post-
effective amendment is required, will file with, or mail for filing to, the
Commission a prospectus or prospectus supplement containing information
relating to the results of the Subscription and Community Offering and
pricing information pursuant to Rule 424 of the Securities Act Regulations,
in either case in a form acceptable to the Agent. The Company, the MHC and
the Bank will notify the Agent immediately, and confirm the notice in
writing, (i) of the effectiveness of any post-effective amendment of the
Registration Statement, the filing of any supplement to the Prospectus and
the filing of any amendment to the MHC Application, (ii) of the receipt of
any comments from the Department, the FDIC, FRB or the Commission with
respect to the transactions contemplated by this Agreement or the Plan,
(iii) of any request by the Commission, the FDIC, the Department or the FRB
for any amendment to the Registration Statement or the MHC Application or
any amendment or supplement to the Prospectus or for additional
information, (iv) of the issuance by the FDIC or the Department of any
order suspending the
-15-
Offerings or the use of the Prospectus or the initiation of any proceedings
for that purpose, (v) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the
initiation of any proceedings for that purpose, and (vi) of the receipt of
any notice with respect to the suspension of any qualification of the
Securities for offering or sale in any jurisdiction. The Company, the MHC
and the Bank will make every reasonable effort to prevent the issuance of
any stop order and, if any stop order is issued, to obtain the lifting
thereof at the earliest possible moment.
(b) The Company, the MHC and the Bank will give the Agent notice
of its intention to file or prepare any amendment to the MHC Application or
Registration Statement (including any post-effective amendment) or any
amendment or supplement to the Prospectus (including any revised prospectus
which the Company proposes for use in connection with the Syndicated
Community Offering of the Securities which differs from the prospectus on
file at the Commission at the time the Registration Statement becomes
effective, whether or not such revised prospectus is required to be filed
pursuant to Rule 424(b) of the Securities Act Regulations), will furnish
the Agent with copies of any such amendment or supplement a reasonable
amount of time prior to such proposed filing or use, as the case may be,
and will not file any such amendment or supplement or use any such
prospectus to which the Agent or counsel for the Agent may object.
(c) The Company, the MHC and the Bank will deliver to the Agent
as many signed copies and as many conformed copies of the MHC Application
and the Registration Statement as originally filed and of each amendment
thereto (including exhibits filed therewith or incorporated by reference
therein) as the Agent may reasonably request, and from time to time such
number of copies of the Prospectus as the Agent may reasonably request.
(d) During the period when the Prospectus is required to be
delivered, the Company, the MHC and the Bank will comply, at their own
expense, with all requirements imposed upon them by the FRB, FDIC and the
Department, by the applicable MHC Regulations, as from time to time in
force, and by the Securities Act, the Securities Act Regulations, the
Exchange Act, and the rules and regulations of the Commission promulgated
thereunder, including, without limitation, Regulation M under the Exchange
Act, so far as necessary to permit the continuance of sales or dealing in
shares of Common Stock during such period in accordance with the provisions
hereof and the Prospectus.
(e) If any event or circumstance shall occur as a result of
which it is necessary, in the opinion of counsel for the Agent, to amend or
supplement the Prospectus in order to make the Prospectus not misleading in
the light of the circumstances existing at the time it is delivered to a
purchaser, the Company, the MHC and the Bank will forthwith amend or
supplement the Prospectus (in form and substance satisfactory to counsel
for the Agent) so that, as so amended or supplemented, the Prospectus will
not include an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the
light of the circumstances existing at the time it is delivered to a
purchaser, not misleading, and the Company, the MHC and the Bank will
furnish to the Agent a reasonable number of copies of such amendment or
supplement. For the purpose of this subsection, the
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Company, the MHC and the Bank will each furnish such information with
respect to itself as the Agent may from time to time reasonably request.
(f) The Company, the MHC and the Bank will take all necessary
action, in cooperation with the Agent, to qualify the Securities for
offering and sale under the applicable securities laws of such states of
the United States and other jurisdictions as the MHC Regulations may
require and as the Agent and the Company have agreed; provided, however,
that the Company, the MHC and the Bank shall not be obligated to file any
general consent to service of process or to qualify as a foreign
corporation in any jurisdiction in which it is not so qualified. In each
jurisdiction in which the Securities have been so qualified, the Company,
the MHC and the Bank will file such statements and reports as may be
required by the laws of such jurisdiction to continue such qualification in
effect for a period of not less than one year from the effective date of
the Registration Statement.
(g) The Company authorizes Sandler X'Xxxxx and any Selected
Dealers to act as agent of the Company in distributing the Prospectus to
persons entitled to receive subscription rights and other persons to be
offered Securities having record addresses in the states or jurisdictions
set forth in a survey of the securities or "blue sky" laws of the various
jurisdictions in which the Offerings will be made (the "Blue Sky Survey").
(h) The Company will make generally available to its security
holders as soon as practicable, but not later than 60 days after the close
of the period covered thereby, an earnings statement (in form complying
with the provisions of Rule 158 of the 1933 Act Regulations) covering a
twelve month period beginning not later than the first day of the Company's
fiscal quarter next following the "effective date" (as defined in said Rule
158) of the Registration Statement.
(i) During the period ending on the third anniversary of the
expiration of the fiscal year during which the closing of the transactions
contemplated hereby occurs, the Company will furnish to its stockholders as
soon as practicable after the end of each such fiscal year an annual report
(including consolidated statements of financial condition and consolidated
statements of income, stockholders' equity and cash flows, certified by
independent public accountants) and, as soon as practicable after the end
of each of the first three quarters of each fiscal year (beginning with the
fiscal quarter ending after the effective date of the Registration
Statement), consolidated summary financial information of the Company, the
MHC, the Bank and its subsidiaries for such quarter in reasonable detail.
In addition, such annual report and quarterly consolidated summary
financial information shall be made public through the issuance of
appropriate press releases at the same time or prior to the time of the
furnishing thereof to stockholders of the Company.
(j) During the period ending on the third anniversary of the
expiration of the fiscal year during which the closing of the transactions
contemplated hereby occurs, the Company will furnish to the Agent (i) as
soon as publicly available, a copy of each report or other document of the
Company furnished generally to stockholders of the Company or furnished to
or filed with the Commission under the Exchange Act or any national
securities exchange or system on which any class of securities of the
Company is listed, and (ii) from
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time to time, such other information concerning the Company as the Agent
may reasonably request.
(k) The Company, the MHC and the Bank will conduct the
Reorganization including the formation and operation of the Foundation in
all material respects in accordance with the Plan, the MHC Regulations and
all other applicable regulations, decisions and orders, including all
applicable terms, requirements and conditions precedent to the
Reorganization imposed upon the Company, the MHC or the Bank by the FRB,
FDIC or the Department.
(l) The Company, the MHC and the Bank will use the net proceeds
received by it from the sale of the Securities in the manner specified in
the Prospectus under "Use of Proceeds."
(m) The Company will file with the Commission a report on the
use of proceeds as required pursuant to Rule 463 of the Securities Act
Regulations.
(n) For a period not less than three years, the Company will not
deregister the Securities. The Company will use its best efforts to effect
the listing of the Securities and Foundation Shares on Nasdaq.
(o) The Company, the MHC and the Bank will take such actions and
furnish such information as are reasonably requested by the Agent in order
for the Agent to ensure compliance with the National Association of
Securities Dealers, Inc.'s "Interpretation Relating to Free-Riding and
Withholding."
(p) Other than in connection with any employee benefit plan or
arrangement described in the Prospectus, the Company will not, without the
prior written consent of the Agent, sell or issue, contract to sell or
otherwise dispose of, any shares of Common Stock other than the Securities
and Foundation Shares for a period of 180 days following the Closing Time.
(q) During the period beginning on the date hereof and ending on
the later of the third anniversary of the Closing Time or the date on which
the Agent receives full payment in satisfaction of any claim for
indemnification or contribution to which it may be entitled pursuant to
Sections 6 or 7, respectively, neither the Company, the MHC nor the Bank
shall, without the prior written consent of the Agent, which consent shall
not be unreasonably withheld, take or permit to be taken any action that
could result in the Bank Common Stock becoming subject to any security
interest, mortgage, pledge, lien or encumbrance; provided, however, that
this covenant shall be null and void if the Board of Governors of the
Federal Reserve System, by regulation, policy statement or interpretive
release, or by written order or written advice addressed to the Bank or the
Agent specifically addressing the provisions of Section 6(a) hereof,
permits indemnification of the Agent by the Bank as contemplated by such
provisions.
(r) The Company, the MHC and the Bank will comply with the
conditions imposed by or agreed to with the FRB in connection with its
approval of the Holding
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Company Application and with the FDIC and the Department in connection with
their approval or non-objection of, or non-objection to, the MHC
Application including those conditions relating to the establishment and
the operation of the Foundation; the Company, the MHC and the Bank shall
use their best efforts to ensure that the Foundation submits within the
time frames required by applicable law a request to the Internal Revenue
Service to be recognized as a tax-exempt organization under Section
501(c)(3) of the Internal Revenue Code of 1986, as amended (the "Code");
the Company, the MHC and the Bank will take no action which will result in
the possible loss of the Foundation's tax exempt status; and neither the
Company, the MHC nor the Bank will contribute any additional assets to the
Foundation until such time that such additional contributions will be
deductible for federal and state income tax purposes.
(s) During the period ending on the first anniversary of the
Closing Time, the Bank will comply with all applicable law and regulation
necessary for the Bank to continue to be a "qualified thrift lender" within
the meaning of 12 U.S.C. Section 1467a(m).
(t) The Company shall not deliver the Securities until the
Company, the MHC and the Bank have satisfied each condition set forth in
Section 5 hereof, unless such condition is waived by the Agent. (u) The
Company, the MHC or the Bank will furnish to Sandler X'Xxxxx as early as
practicable prior to the Closing Date, but no later than two (2) full
business days prior thereto, a copy of the latest available unaudited
interim consolidated financial statements of the Bank and the subsidiaries
which have been read by KPMG LLP, as stated in their letters to be
furnished pursuant to subsections (e) and (f) of Section 5 hereof.
(u) The Company, the MHC or the Bank will furnish to Sandler
X'Xxxxx as early as practicable prior to the Closing Date, but no later
than two (2) full business days prior thereto, a copy of the latest
available unaudited interim consolidated financial statements of the Bank
and the subsidiaries which have been read by KPMG LLP, as stated in their
letters to be furnished pursuant to subsections (e) and (f) of Section 5
hereof.
SECTION 4. PAYMENT OF EXPENSES. The Company, the MHC and the Bank
jointly and severally agree to pay all expenses incident to the performance of
their obligations under this Agreement, including but not limited to (i) the
cost of obtaining all securities and bank regulatory approvals, (ii) the
printing and filing of the Registration Statement as originally filed and each
amendment thereto, (iii) the preparation, issuance and delivery of the
certificates for the Securities to the purchasers in the Offerings, (iv) the
fees and disbursements of the Company's, the MHC's and the Bank's counsel,
accountants, appraiser and other advisors, (v) the qualification of the
Securities under securities laws in accordance with the provisions of Section
3(f) hereof, including filing fees and the fees and disbursements of counsel in
connection therewith and in connection with the preparation of the Blue Sky
Survey, (vi) the printing and delivery to the Agent of copies of the
Registration Statement as originally filed and of each amendment thereto and the
printing and delivery of the Prospectus and any amendments or supplements
thereto to the purchasers in the Offerings and the Agent, (vii) the printing and
delivery to the Agent of copies of a Blue Sky Survey, and (viii) the fees and
expenses incurred in connection with the listing of the Securities on Nasdaq.
In the event the Agent incurs any such fees and expenses on behalf of the Bank,
the MHC or the Company, the Bank will reimburse the Agent for such fees and
expenses whether or not the Reorganization is consummated; provided, however,
that the Agent shall not incur any substantial expenses on behalf of the Bank,
the MHC or the Company pursuant to this Section without the prior approval of
the Bank.
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The Company, the MHC and the Bank jointly and severally agree to pay
certain expenses incident to the performance of the Agent's obligations under
this Agreement, regardless of whether the Reorganization is consummated,
including (i) the filing fees paid or incurred by the Agent in connection with
all filings with the National Association of Securities Dealers, Inc., and (ii)
all reasonable out of pocket expenses incurred by the Agent relating to the
Offerings, including, without limitation, advertising, promotional, syndication
and travel expenses and fees and expenses of the Agent's counsel, up to a
maximum of $100,000. All fees and expenses to which the Agent is entitled to
reimbursement under this paragraph of this Section 4 shall be due and payable
upon receipt by the Company, the MHC or the Bank of a written accounting
therefor setting forth in reasonable detail the expenses incurred by the Agent.
SECTION 5. CONDITIONS OF AGENT'S OBLIGATIONS. The Company, the MHC,
the Bank and the Agent agree that the issuance and the sale of Securities and
all obligations of the Agent hereunder are subject to the accuracy of the
representations and warranties of the Company, the MHC and the Bank herein
contained as of the date hereof and the Closing Time, to the accuracy of the
statements of officers, trustees and directors of the Company, the MHC and the
Bank made pursuant to the provisions hereof, to the performance by the Company,
the MHC and the Bank of their obligations hereunder, and to the following
further conditions:
(a) No stop order suspending the effectiveness of the Registration
Statement shall have been issued under the Securities Act or proceedings
therefor initiated or threatened by the Commission, no order suspending the
Offerings or authorization for final use of the Prospectus shall have been
issued or proceedings therefor initiated or threatened by the Department or
the FDIC and no order suspending the sale of the Securities in any
jurisdiction shall have been issued.
(b) At Closing Time, the Agent shall have received:
(1) The favorable opinion, dated as of Closing Time, of Xxxxxxx
Xxxxxxxx & Wood, counsel for the Company, the MHC and the Bank, in
form and substance satisfactory to counsel for the Agent, to the
effect that:
(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
State of Delaware.
(ii) The Company has full corporate power and authority to
own, lease and operate its properties and to conduct its business
as described in the Registration Statement and Prospectus and to
enter into and perform its obligations under this Agreement.
(iii) The Company is duly qualified as a foreign
corporation to transact business and is in good standing in the
State of Delaware and in each other jurisdiction in which such
qualification is required whether by reason of the ownership or
leasing of property or the conduct of business, except where the
failure to so qualify would not have a material adverse effect
upon the financial condition, results of operations or business
affairs of the
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Company, the MHC, the Bank and its subsidiaries considered as one
enterprise.
(iv) Upon consummation of the Reorganization, and the
issuance of the Foundation Shares to the Foundation immediately
upon completion thereof, in compliance with all conditions
imposed upon the contribution thereof by the FDIC under the terms
of the intent not to object in an amount described in the
Prospectus, the authorized, issued and outstanding capital stock
of the Company will be within the range set forth in the
Prospectus under "Capitalization" and no shares of Common Stock
have been or will be issued and outstanding prior to the Closing
Time.
(v) The Securities and the Foundation Shares have been
duly and validly authorized for issuance and sale and, when
issued and delivered by the Company pursuant to the Plan against
payment of the consideration calculated as set forth in the Plan,
or contributed by the Company pursuant to the Plan in the case of
the Foundation Shares, will be duly and validly issued and fully
paid and non-assessable.
(vi) The issuance of the Securities and the Foundation
Shares are not subject to preemptive or other similar rights
arising by operation of law or, to the best of their knowledge
and information, otherwise.
(vii) The Bank has been at all times since [______] and
prior to the Closing Time duly organized, and is validly existing
and in good standing under the laws of the State of New York as a
New York chartered savings bank in mutual form, and, at Closing
Time, has become duly organized, validly existing and in good
standing under the laws of the State of New York as a New York
chartered savings bank in stock form, in both instances with full
corporate power and authority to own, lease and operate its
properties and to conduct its business as described in the
Registration Statement and the Prospectus; and the Bank is duly
qualified as a foreign corporation in each jurisdiction in which
the failure to so qualify would have a material adverse effect
upon the financial condition, results of operations or business
affairs of the Bank.
(viii) The Bank is a member of the Federal Home Loan Bank
of New York and the deposit accounts of the Bank are insured by
the FDIC up to the applicable limits.
(ix) The MHC has been organized and is validly existing
as a new York state chartered mutual holding company, duly
authorized to conduct its business and own its properties as
described in the Registration Statement and Prospectus.
(x) Each direct and indirect subsidiary of the Bank has
been duly incorporated and is validly existing as a corporation
in good standing under
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the laws of the jurisdiction of its incorporation, has full
corporate power and authority to own, lease and operate its
properties and to conduct its business as described in the
Registration Statement and is duly qualified as a foreign
corporation to transact business and is in good standing in each
jurisdiction in which the failure to so qualify would have a
material adverse effect upon the financial condition, results of
operations or business of the Company, the MHC, the Bank and its
subsidiaries taken as a whole; and the activities of each such
subsidiary are permitted to subsidiaries of a bank holding
company and of a New York chartered savings bank by the rules,
regulations, resolutions and practices of the Department; all of
the issued and outstanding capital stock of each such subsidiary
has been duly authorized and validly issued, is fully paid and
non-assessable and is owned by the Bank, directly or through
subsidiaries, free and clear of any security interest, mortgage,
pledge, lien, encumbrance, claim or equity.
(xi) The Foundation has been duly incorporated and is
validly existing as a non-stock corporation in good standing
under the laws of the State of Delaware with corporate power and
authority to own, lease and operate its properties and to conduct
its business as described in the Prospectus; the Foundation is
not a savings and loan holding company within the meaning of 12
C.F.R. Section 574.2(q) as a result of the issuance of shares of
Common Stock to it in accordance with the terms of the Plan and
in the amounts as described in the Prospectus; no approvals are
required to establish the Foundation and to contribute the shares
of Common Stock thereto as described in the Prospectus other than
those set forth in any written notice or order of approval or
non-objection of the Reorganization, the MHC Application or the
Holding Company Application, copies of which were provided to the
Agent prior to the Closing Time.
(xii) Upon consummation of the Reorganization, all of the
issued and outstanding capital stock of the Bank when issued and
delivered pursuant to the Plan against payment of consideration
calculated as set forth in the Plan and set forth in the
Prospectus, will be duly authorized and validly issued and fully
paid and nonassessable, and all such capital stock will be owned
beneficially and of record by the Company free and clear of any
security interest, mortgage, pledge, lien, encumbrance, claim or
equity.
(xiii) The FRB has approved the Holding Company
Application, the Department has approved the MHC Application, the
FDIC has issued its non-objection to the Plan and no action is
pending, or to the best of such counsel's knowledge, threatened
respecting the Holding Company Application or the MHC Application
or the acquisition by the Company of all of the Bank's issued and
outstanding capital stock; the Holding Company Application and
the MHC Application comply with the applicable requirements of
the FRB, FDIC and Department, respectively, includes all
documents required to be filed as exhibits thereto, and is, to
the best of such counsel's knowledge and information, truthful,
accurate and complete; and the Company is duly
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authorized to become a bank holding company and is duly
authorized to own all of the issued and outstanding capital stock
of the Bank to be issued pursuant to the Plan.
(xiv) The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby, including
the establishment of the Foundation and the contribution thereto
of the Foundation Shares, (A) have been duly and validly
authorized by all necessary action on the part of each of the
Company, the MHC and the Bank, and this Agreement constitutes the
legal, valid and binding agreement of each of the Company, the
MHC and the Bank, enforceable in accordance with its terms,
except as rights to indemnity and contribution hereunder may be
limited under applicable law (it being understood that such
counsel may avail itself of customary exceptions concerning the
effect of bankruptcy, insolvency or similar laws and the
availability of equitable remedies); (B) will not result in any
violation of the provisions of the charter or by-laws of the
Company, the MHC, the Bank or any of its subsidiaries; and, (C)
will not conflict with or constitute a breach of, or default
under, and no event has occurred which, with notice or lapse of
time or both, would constitute a default under, or result in the
creation or imposition of any lien, charge or encumbrance, that,
individually or in the aggregate, would have a material adverse
effect on the financial condition, results of operations or
business affairs of the Company, the MHC, the Bank and its
subsidiaries considered as one enterprise, or pursuant to any
contract, indenture, loan agreement, note, lease or other
instrument to which the Company, the MHC the Bank or its
subsidiaries is a party or by which any of them may be bound, or
to which any of the property or assets fo the Company, the MHC,
the Bank or its subsidiaries is subject.
(xv) The Prospectus has been duly authorized by the
Department for final use pursuant to the MHC Regulations and no
action is pending, or to the best of such counsel's knowledge, is
threatened, by the Department to revoke such authorization.
(xvi) The Registration Statement is effective under the
Securities Act and no stop order suspending the effectiveness of
the Registration Statement has been issued under the Securities
Act or, to the best of such counsel's knowledge, proceedings
therefor initiated or threatened by the Commission.
(xvii) No further approval, authorization, consent or other
order of any public board or body is required in connection with
the execution and delivery of this Agreement, the issuance of the
Securities and the consummation of the Reorganization, except as
may be required under the securities or Blue Sky laws of various
jurisdictions as to which no opinion need be rendered.
-23-
(xviii) At the time the Registration Statement became
effective, the Registration Statement (other than the financial
statements and statistical data included therein, as to which no
opinion need be rendered) complied as to form in all material
respects with the requirements of the Securities Act and the
Securities Act Regulations and the MHC Regulations.
(xix) The Common Stock conforms to the description thereof
contained in the Prospectus, and the form of certificate used to
evidence the Common Stock is in due and proper form and complies
with all applicable statutory requirements.
(xx) There are no legal or governmental proceedings
pending or threatened against or affecting the Company, the MHC,
the Bank or its subsidiaries which are required, individually or
in the aggregate, to be disclosed in the Registration Statement
and Prospectus, other than those disclosed therein, and all
pending legal or governmental proceedings to which the Company,
the MHC, the Bank or any of its subsidiaries is a party or to
which any of their property is subject which are not described in
the Registration Statement, including ordinary routine litigation
incidental to the business, are, considered in the aggregate, not
material.
(xxi) The information in the Prospectus under "Risk
Factors- The establishment of the Rome Savings Foundation will
reduce our earnings," "Rome, MHC's voting control over Rome
Bancorp may prevent transactions you would like," "Business of
Rome Savings Bank - Legal Proceedings," "Taxation - Federal,"
"State," "Regulation of Rome Savings Bank and Rome Bancorp," "Our
Policy Regarding Dividends," "The Reorganization and the
Offering - why we are Establishing The Rome Savings Foundation,"
"-Tax Considerations," "-Regulatory Conditions Imposed on the
Foundation," "Restrictions on Acquisition of Rome Bancorp" and
"Description of Capital Stock of Rome Bancorp" to the extent that
it constitutes matters of law, summaries of legal matters,
documents or proceedings, or legal conclusions, has been reviewed
by them and is complete and accurate in all material respects.
(xxii) To the best of such counsel's knowledge, there are
no contracts, indentures, mortgages, loan agreements, notes,
leases or other instruments required to be described or referred
to in the Registration Statement or to be filed as exhibits
thereto other than those described or referred to therein or
filed as exhibits thereto, the descriptions thereof or references
thereto are correct, and no default exists, and no event has
occurred which, with notice or lapse of time or both, would
constitute a default, in the due performance or observance of any
material obligation, agreement, covenant or condition contained
in any contract, indenture, mortgage, loan agreement, note, lease
or other instrument so described, referred to or filed.
-24-
(xxiii) The Plan and the establishment and funding of the
Foundation have been duly authorized by the Board of Directors of
the Company and the MHC and the Board of Trustees of the Bank,
the Department's approval of the Plan and the FDIC's non-
objection to the Plan remain in full force and effect; the Bank's
charter has been amended and restated, effective upon
consummation of the Reorganization and the filing of such charter
with the Department, to authorize the issuance of permanent
capital stock; to the best of such counsel's knowledge, the
Company, the MHC and the Bank have conducted the Reorganization
and the establishment and funding of the Foundation in all
material respects in accordance with applicable requirements of
the MHC Regulations, the Plan and all other applicable
regulations, decisions and orders thereunder, including all
material applicable terms, conditions, requirements and
conditions precedent to the Reorganization imposed upon the
Company or the Bank by the FDIC or the Department and, no order
has been issued by the FDIC or the Department to suspend the
Reorganization or the Offerings and no action for such purpose
has been instituted or, threatened by the FDIC or the Department;
and, to the best of such counsel's knowledge, no person has
sought to obtain review of the final action of the Department in
approving the MHC Application (which includes the Plan which
provides for the establishment of the Foundation) or the Holding
Company Application.
(xxiv) To the best of such counsel's knowledge, the
Company, the MHC and the Bank and its subsidiaries have obtained
all licenses, permits and other governmental authorizations
currently required for the conduct of their respective businesses
as described in the Registration Statement and Prospectus, and
all such licenses, permits and other governmental authorizations
are in full force and effect, and the Company, the MHC and the
Bank and its subsidiaries are in all material respects complying
therewith.
(xxv) None of the Company, the MHC, the Bank nor any of
its subsidiaries is in violation of its certificate of
incorporation, organization certificate, articles of
incorporation or charter, as the case may be, or bylaws (and the
Bank will not be in violation of its charter in stock form upon
consummation of the Reorganization) or, to the best of such
counsel's knowledge, in default (nor has any event occurred
which, with notice or lapse of time or both, would constitute a
default) in the performance or observance of any obligation,
agreement, covenant or condition contained in any contract,
indenture, mortgage, loan agreement, note, lease or other
instrument to which the Company, the MHC, the Bank or any of its
subsidiaries is a party or by which the Company, the MHC, the
Bank or any of its subsidiaries or any of the property may be
bound.
(xxvi) The Company is not required to be registered as an
investment company under the Investment Company Act of 1940.
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(2) The favorable opinion, dated as of Closing Time, of Silver,
Xxxxxxxx & Staff, L.L.P., counsel for the Agent, with respect to the
matters set forth in Section 5(b)(1)(i), (iv), (v), (vi) (solely as to
preemptive rights arising by operation of law), (xii), (xiv), (xvi)
and (xvii) and such other matters as the Agent may reasonably require.
(3) In addition to giving their opinions required by subsections
(b)(l) and (b)(2), respectively, of this Section, Thacher, Xxxxxxxx &
Wood and Silver, Xxxxxxxx & Staff, L.L.P. shall each additionally
state that nothing has come to their attention that would lead them to
believe that the Registration Statement (except for financial
statements and schedules and other financial or statistical data
included therein, as to which counsel need make no statement), at the
time it 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 the
Prospectus (except for financial statements and schedules and other
financial or statistical data included therein, as to which counsel
need make no statement), at the time the Registration Statement became
effective or at Closing Time, included an untrue statement of a
material fact or omitted 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.
In giving their opinions, Thacher, Xxxxxxxx & Xxxx and Silver,
Xxxxxxxx & Staff, L.L.P. may rely as to matters of fact on
certificates of officers and directors of the Company, the MHC and the
Bank and certificates of public officials, and as to certain matters
of Delaware law upon the opinion of [___________________], which
opinions shall be in form and substance satisfactory to counsel for
the Agent, and Silver, Xxxxxxxx & Staff, L.L.P. may also rely on the
opinion of Xxxxxxx Xxxxxxxx & Wood.
(c) At Closing Time referred to in Section 2, the Company, the MHC
and the Bank shall have completed in all material respects the conditions
precedent to the Reorganization in accordance with the Plan, the applicable
MHC Regulations and all other applicable laws, regulations, decisions and
orders, including all terms, conditions, requirements and provisions
precedent to the Reorganization imposed upon the Company or the Bank by the
FDIC, the Department, or any other regulatory authority other than those
which the Department or the FDIC permits to be completed after the
Reorganization.
(d) At Closing Time, there shall not have been, since the date hereof
or since the respective dates as of which information is given in the
Registration Statement and the Prospectus, any material adverse change in
the financial condition, results of operations or business affairs of the
Company, the MHC, the Bank and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business, and
the Agent shall have received a certificate of the President and Chief
Executive Officer of the Company, the MHC and of the Bank, and the chief
financial or chief accounting officer of the Company, the MHC and of the
Bank, dated as of Closing Time, to the effect that (i) there has been no
such material adverse change, (ii) there shall have been no material
transaction entered into by the
-26-
Company, the MHC or the Bank from the latest date as of which the financial
condition of the Company, the MHC or the Bank as set forth in the
Registration Statement and the Prospectus other than transactions referred
to or contemplated therein and transactions in the ordinary course of
business, (iii) neither the Company, the MHC nor the Bank shall have
received from the FDIC or Department any direction (oral or written) to
make any material change in the method of conducting its business with
which it has not complied (which direction, if any, shall have been
disclosed to the Agent) or which materially and adversely would affect the
business, financial condition or results of operations of the Company, the
MHC, the Bank or its subsidiaries, (iv) the representations and warranties
in Section 1 hereof are true and correct with the same force and effect as
though expressly made at and as of the Closing Time, (v) the Company, the
MHC and the Bank have complied with all agreements and satisfied all
conditions on their part to be performed or satisfied at or prior to
Closing Time, (vi) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that purpose
have been initiated or threatened by the Commission and (vii) no order
suspending the Syndicated Community Offering or the authorization for final
use of the Prospectus has been issued and no proceedings for that purpose
have been initiated or threatened by the FRB, the Department or the FDIC
and no person has sought to obtain regulatory or judicial review of the
action of the FDIC or the Department in approving the Plan in accordance
with the MHC Regulations nor has any person sought to obtain regulatory or
judicial review of the action of the FRB in approving the Holding Company
Application.
(e) At the time of the execution of this Agreement, the Agent shall
have received from KPMG LLP a letter dated such date, in form and substance
satisfactory to the Agent, to the effect that (i) they are independent
public accountants with respect to the Company, the MHC, the Bank and its
subsidiaries within the meaning of the Code of Ethics of the American
Institute of Certified Public Accountants, the Securities Act and the
Securities Act Regulations and the MHC Regulations; (ii) it is their
opinion that the consolidated financial statements and supporting schedules
included in the Registration Statement and covered by their opinions
therein comply as to form in all material respects with the applicable
accounting requirements of the Securities Act and the Securities Act
Regulations; (iii) based upon limited procedures as agreed upon by the
Agent and KPMG LLP set forth in detail in such letter, nothing has come to
their attention which causes them to believe that (A) the unaudited
financial statements and supporting schedules of the Bank and its
subsidiaries included in the Registration Statement do not comply as to
form in all material respects with the applicable accounting requirements
of the Securities Act, the Securities Act Regulations and the MHC
Regulations or are not presented in conformity with generally accepted
accounting principles applied on a basis substantially consistent with that
of the audited financial statements included in the Registration Statement
and the Prospectus, (B) the unaudited amounts of net interest income and
net income set forth under "Selected Financial and Other Data" in the
Registration Statement and Prospectus do not agree with the amounts set
forth in unaudited consolidated financial statements as of and for the
dates and periods presented under such captions or such amounts were not
determined on a basis substantially consistent with that used in
determining the corresponding amounts in the audited financial statements
included in the Registration Statement, (C) at a specified date not more
than five days prior to the date of this Agreement, there has been any
increase in the consolidated long term or short term debt of the Bank and
its subsidiaries or any decrease in consolidated total
-27-
assets, the allowance for loan losses, total deposits or net worth of the
Bank and its subsidiaries in each case as compared with the amounts shown
in the December 31, 1998 balance sheet included in the Registration
Statement or, (D) during the period from March 31, 1999 to a specified date
not more than five days prior to the date of this Agreement, there were any
decreases, as compared with the corresponding period in the preceding year,
in total interest income, net interest income, net interest income after
provision for loan losses, income before income tax expense or net income
of the Bank and its subsidiaries except in all instances for increases or
decreases which the Registration Statement and the Prospectus disclose have
occurred or may occur; and (iv) in addition to the examination referred to
in their opinions and the limited procedures referred to in clause (iii)
above, they have carried out certain specified procedures, not constituting
an audit, with respect to certain amounts, percentages and financial
information which are included in the Registration Statement and Prospectus
and which are specified by the Agent, and have found such amounts,
percentages and financial information to be in agreement with the relevant
accounting, financial and other records of the Company, the MHC, the Bank
and its subsidiaries identified in such letter.
(f) At Closing Time, the Agent shall have received from KPMG LLP a
letter, dated as of Closing Time, to the effect that they reaffirm the
statements made in the letter furnished pursuant to subsection (d) of this
Section, except that the specified date referred to shall be a date not
more than five days prior to Closing Time.
(g) At Closing Time, the Securities shall have been approved for
listing on Nasdaq upon notice of issuance.
(h) At Closing Time, the Agent shall have received a letter from RP
Financial, dated as of the Closing Time, confirming its appraisal.
(i) At Closing Time, counsel for the Agent shall have been furnished
with such documents and opinions as they may require for the purpose of
enabling them to pass upon the issuance and sale of the Securities and the
Foundation Shares as herein contemplated and related proceedings, or in
order to evidence the accuracy of any of the representations or warranties,
or the fulfillment of any of the conditions, herein contained; and all
proceedings taken by the Company in connection with the issuance and sale
of the Securities and Foundation Shares as herein contemplated shall be
satisfactory in form and substance to the Agent and counsel for the Agent.
(j) At any time prior to Closing Time, (i) there shall not have
occurred any material adverse change in the financial markets in the United
States or elsewhere or any outbreak of hostilities or escalation thereof or
other calamity or crisis the effect of which, in the judgment of the Agent,
are so material and adverse as to make it impracticable to market the
Securities or to enforce contracts, including subscriptions or orders, for
the sale of the Securities, and (ii) trading generally on either the
American Stock Exchange or the New York Stock Exchange or the Nasdaq Stock
Market shall not have been suspended, and minimum or maximum prices for
trading shall not have been fixed, or maximum ranges for prices for
securities have been required, by either of said Exchanges or by order of
the Commission or any other governmental authority, and a banking
moratorium shall not have been declared by either Federal or New York
authorities.
-28-
SECTION 6. Indemnification.
(a) The Company, the MHC and the Bank, jointly and severally, agree
to indemnify and hold harmless the Agent, each person, if any, who controls the
Agent, within the meaning of Section 15 of the Securities Act or Section 20 of
the Exchange Act, and its respective partners, directors, officers, employees
and agents as follows:
(i) from and against any and all loss, liability, claim, damage
and expense whatsoever, as incurred, related to or arising out of the
Reorganization (including establishment of the Foundation and the
contribution of the Foundation Shares thereto by the Company) or any action
taken by the Agent where acting as agent of the Company or the Bank or
otherwise as described in Section 2 hereof;
(ii) from and against any and all loss, liability, claim, damage
and expense whatsoever, as incurred, based upon or arising out of any
untrue statement or alleged untrue statement of a material fact contained
in the Registration Statement (or any amendment thereto), or the omission
or alleged omission therefrom of a material fact required to be stated
therein or necessary to make the statements therein not misleading or
arising out of any untrue statement or alleged untrue statement of a
material fact contained in the Proxy Statement or Prospectus (or any
amendment or supplement thereto) or the omission or alleged omission
therefrom of a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading;
(iii) from and against any and all loss, liability, claim, damage
and expense whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or of any claim
whatsoever described in clauses (i) or (ii) above, if such settlement is
effected with the written consent of the Company, the MHC or the Bank,
which consent shall not be unreasonably withheld; and
(iv) from and against any and all expense whatsoever, as
incurred (including, subject to Section 6(c) hereof, the fees and
disbursements of counsel chosen by the Agent), reasonably incurred in
investigating, preparing for or defending against any litigation, or any
investigation, proceeding or inquiry by any governmental agency or body,
commenced or threatened, or any claim pending or threatened whatsoever
described in clauses (i) or (ii) above, to the extent that any such expense
is not paid under (i), (ii) or (iii) above;
provided, however, that the indemnification provided for in this paragraph (a)
shall not apply to any loss, liability, claim, damage or expense to the extent
arising out of any untrue statement or alleged untrue statement of a material
fact contained in the Prospectus (or any amendment or supplement thereto) or the
omission or alleged omission therefrom of a material fact necessary in order to
make the statements therein, in the light of the circumstances under which they
were made, not misleading which was made in reliance upon and in conformity with
written information relating to the Agent Information. Notwithstanding the
foregoing, the indemnification provided for in this paragraph (a)
-29-
shall not apply to the Bank to the extent that such indemnification by the Bank
would constitute a covered transaction under Section 23A of the Federal Reserve
Act.
(b) The Agent agrees to indemnify and hold harmless the Company, the
MHC, the Bank, their directors and trustees, each of their officers who signed
the Registration Statement, and each person, if any, who controls the Company
within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act against any and all loss, liability, claim, damage and expense
described in the indemnity contained in subsection (a) of this Section, as
incurred, but only with respect to untrue statements or omissions, or alleged
untrue statements or omissions, of a material fact made in the Prospectus (or
any amendment or supplement thereto) in reliance upon and in conformity with the
Agent Information.
(c) Each indemnified party shall give notice as promptly as
reasonably practicable to each indemnifying party of any action commenced
against it in respect of which indemnity may be sought hereunder, but failure to
so notify an indemnifying party shall not relieve such indemnifying party from
any liability which it may have otherwise than on account of this indemnity
agreement. An indemnifying party may participate at its own expense in the
defense of any such action. In no event shall the indemnifying parties be liable
for fees and expenses of more than one counsel (in addition to no more than one
local counsel in each separate jurisdiction in which any action or proceeding is
commenced) separate from their own counsel for all indemnified parties in
connection with any one action or separate but similar or related actions in the
same jurisdiction arising out of the same general allegations or circumstances.
(d) The Company, the MHC and the Bank also agree that the Agent shall
not have any liability (whether direct or indirect, in contract or tort or
otherwise) to the Bank, the MHC, the Company, its security holders or the
Bank's, the MHC's or the Company's creditors relating to or arising out of the
engagement of the Agent pursuant to, or the performance by the Agent of the
services contemplated by, this Agreement, except to the extent that any loss,
claim, damage or liability is found in a final judgment by a court of competent
jurisdiction to have resulted primarily from the Agent's bad faith, willful
misconduct or gross negligence.
(e) In addition to, and without limiting, the provisions of Section
(6)(a)(iv) hereof, in the event that any Agent, any person, if any, who controls
the Agent within the meaning of Section 15 of the Securities Act or Section 20
of the Exchange Act or any of its partners, directors, officers, employees or
agents is requested or required to appear as a witness or otherwise gives
testimony in any action, proceeding, investigation or inquiry brought by or on
behalf of or against the Company, the MHC, the Bank, the Agent or any of its
respective affiliates or any participant in the transactions contemplated hereby
in which the Agent or such person or agent is not named as a defendant, the
Company, the MHC and the Bank jointly and severally agree to reimburse the Agent
for all reasonable and necessary out-of-pocket expenses incurred by it in
connection with preparing or appearing as a witness or otherwise giving
testimony and to compensate the Agent in an amount to be mutually agreed upon.
SECTION 7. Contribution. In order to provide for just and equitable
contribution in circumstances in which the indemnity agreement provided for in
Section 6 hereof is for any reason held to be unenforceable by the indemnified
parties although applicable in accordance with its terms, the Company, the MHC,
the Bank and the Agent shall contribute to the aggregate
-30-
losses, liabilities, claims, damages and expenses of the nature contemplated by
said indemnity agreement incurred by the Company, the MHC or the Bank and the
Agent, as incurred, in such proportions (i) that the Agent is responsible for
that portion represented by the percentage that the maximum aggregate marketing
fees appearing in "Pro Forma data" of the Prospectus bears to the maximum
aggregate gross proceeds and the Company, the MHC and the Bank are jointly and
severally responsible for the balance or (ii) if, but only if, the allocation
provided for in clause (i) is for any reason held unenforceable, in such
proportion as is appropriate to reflect not only the relative benefits to the
Company, the MHC and the Bank on the one hand and the Agent on the other, as
reflected in clause (i), but also the relative fault of the Company, the MHC and
the Bank on the one hand and the Agent on the other, as well as any other
relevant equitable considerations; provided, however, that no person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. For purposes of this Section, each
person, if any, who controls the Agent within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act shall have the same rights to
contribution as the Agent, and each director of the Company and the MHC, each
trustee of the Bank, each officer of the Company and the MHC who signed the
Registration Statement, and each person, if any, who controls the Company, the
MHC or the Bank within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act shall have the same rights to contribution as the
Company, the MHC and the Bank. Notwithstanding anything to the contrary set
forth herein, to the extent permitted by applicable law, in no event shall the
Agent be required to contribute an aggregate amount in excess of the aggregate
marketing fees to which the Agent is entitled and actually paid pursuant to this
Agreement.
SECTION 8. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement, or contained in certificates of officers of the Company, the MHC or
the Bank submitted pursuant hereto, shall remain operative and in full force and
effect, regardless of any investigation made by or on behalf of any Agent or
controlling person, or by or on behalf of the Company, and shall survive
delivery of the Securities.
SECTION 9. Termination of Agreement.
(a) The Agent may terminate this Agreement, by notice to the Company,
at any time at or prior to Closing Time (i) if there has been, since the date of
this Agreement or since the respective dates as of which information is given in
the Registration Statement, any material adverse change in the financial
condition, results of operations or business affairs of the Company, the MHC or
the Bank, or the Company, the MHC, the Bank and its subsidiaries considered as
one enterprise, whether or not arising in the ordinary course of business, or
(ii) if there has occurred any material adverse change in the financial markets
in the United States or elsewhere or any outbreak of hostilities or escalation
thereof or other calamity or crisis the effect of which, in the judgment of the
Agent, are so material and adverse as to make it impracticable to market the
Securities or to enforce contracts, including subscriptions or orders, for the
sale of the Securities, (iii) if trading generally on the Nasdaq Stock Market,
the American Stock Exchange or the New York Stock Exchange has been suspended,
or minimum or maximum prices for trading have been fixed, or maximum ranges for
prices for securities have been required, by either of said Exchanges or by
order of the Commission or any other governmental authority, or if a banking
moratorium has been declared by either Federal or New York authorities, (iv) if
any condition specified in Section 5 shall not have been fulfilled
-31-
when and as required to be fulfilled; (v) if there shall have been such material
adverse change in the condition or prospects of the Company, the MHC or the Bank
or the prospective market for the Company's securities as in the Agent's good
faith opinion would make it inadvisable to proceed with the offering, sale or
delivery of the Securities; (vi) if, in the Agent's good faith opinion, the
price for the Securities established by RP Financial is not reasonable or
equitable under then prevailing market conditions, or (vii) if the
Reorganization is not consummated on or prior to December 31, 1999.
(b) If this Agreement is terminated pursuant to this Section, such
termination shall be without liability of any party to any other party except as
provided in Section 4 hereof relating to the reimbursement of expenses and
except that the provisions of Sections 6 and 7 hereof shall survive any
termination of this Agreement.
SECTION 10. Notices. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the Agent
shall be directed to the Agent at Two World Trade Center, 000xx Xxxxx, Xxx Xxxx,
Xxx Xxxx 00000, attention of Xxxxxxxxx X. Xxxxxx; notices to the Company, the
MHC and the Bank shall be directed to either of them at 000 Xxxx Xxxxxxxx
Xxxxxx, Xxxx, Xxx Xxxx 00000-0000, attention of Xxxxxxx X. Xxxxxx.
SECTION 11. Parties. This Agreement shall inure to the benefit of and
be binding upon the Agent, the Company, the MHC and the Bank and their
respective successors. Nothing expressed or mentioned in this Agreement is
intended or shall be construed to give any person, firm or corporation, other
than the Agent, the Company, the MHC and the Bank and their respective
successors and the controlling persons and officers and directors referred to in
Sections 6 and 7 and their heirs and legal representatives, any legal or
equitable right, remedy or claim under or in respect of this Agreement or any
provision herein or therein contained. This Agreement and all conditions and
provisions hereof and thereof are intended to be for the sole and exclusive
benefit of the Agent, the Company, the MHC and the Bank and their respective
successors, and said controlling persons and officers and directors and their
heirs and legal representatives, and for the benefit of no other person, firm or
corporation.
SECTION 12. Entire Agreement; Amendment. This Agreement represents the
entire understanding of the parties hereto with reference to the transactions
contemplated hereby and supersedes any and all other oral or written agreements
heretofore made, except for the engagement letter dated January 27, 1999, by and
between the Agent and the Bank, relating to the Agent's providing conversion
agent services to the Bank in connection with the Reorganization. No waiver,
amendment or other modification of this Agreement shall be effective unless in
writing and signed by the parties hereto.
SECTION 13. Governing Law and Time. This Agreement shall be governed
by and construed in accordance with the laws of the State of New York applicable
to agreements made and to be performed in said State without regard to the
conflicts of laws provisions thereof. Unless otherwise noted, specified times of
day refer to Eastern time.
SECTION 14. Severability. Any term or provision of this Agreement
which is invalid or unenforceable in any jurisdiction shall, as to that
jurisdiction, be ineffective to the extent of such invalidity or
unenforceability without rendering invalid or unenforceable the remaining terms
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and provisions of this Agreement or affecting the validity or enforceability of
any of the terms or provisions of this Agreement in any other jurisdiction. If
any provision of this Agreement is so broad as to be unenforceable, the
provision shall be interpreted to be only so broad as is enforceable.
SECTION 15. Headings. Sections headings are not to be considered part
of this Agreement, are for convenience and reference only, and are not to be
deemed to be full or accurate descriptions of the contents of any paragraph or
subparagraph.
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If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this instrument, along with all counterparts, will become a binding agreement
between the Agent, the Company, the MHC and the Bank in accordance with its
terms.
Very truly yours,
ROME BANCORP, INC.
By: _______________________________
Xxxxxxx X. Xxxxxx
Chairman, President and Chief
Executive Officer
ROME, MHC
By: _______________________________
Xxxxxxx X. Xxxxxx
Chairman, President and Chief
Executive Officer
ROME SAVINGS BANK
By: _______________________________
Xxxxxxx X. Xxxxxx
Chairman, President and Chief
Executive Officer
CONFIRMED AND ACCEPTED,
as of the date first above written:
Sandler X'Xxxxx & Partners, L.P.
By: Sandler X'Xxxxx & Partners Corp.,
the sole general partner
By: _______________________________
Xxxxxxxxx X. Xxxxxx
Vice President
EXHIBIT A
Selected Dealers Agreement
