EXHIBIT 1
XXXXXXXXXX BANCORP, INC.
(a New Jersey corporation)
548,838 Shares (Maximum, as adjusted)
Common Stock
(Par Value $0.10 Per Share)
AGENCY AGREEMENT
----------------
August __, 1998
Xxxx, Xxxx & Co., Inc.
000 Xxxxxxxx Xxxx
Xxxxx 000
Xxxx Xxxxxx, Xxxxxxxxxxxx 00000-0000
Dear Sirs:
Xxxxxxxxxx Bancorp, Inc., a New Jersey corporation (the "Company") and
Peoples Savings Bank, a federally chartered mutual savings bank (the "Bank"),
hereby confirm their agreement with Xxxx, Xxxx & Co., Inc. ("Xxxx, Xxxx" or the
"Agent" or "you"), as follows:
Introductory. The Bank is in the process of converting from a federally
chartered savings bank in the mutual form to a federally chartered savings bank
in stock form in accordance with the provisions of the Home Owners' Loan Act, as
amended (the "HOLA"), and the rules and regulations of the Office of Thrift
Supervision ("OTS") which have been or which may be promulgated thereunder by
the OTS, such statute, rules and regulations being collectively referred to as
the "Conversion Regulations." An Application for Approval of Conversion has been
filed with the OTS (the "Conversion Application") and all amendments required to
the date hereof have also been filed. The Conversion Application includes, among
other things, the Bank's plan of conversion (the "Plan") and the Bank's proxy
statement for the Special Meeting of Members, to be held on September __, 1998
("Proxy Statement"). Prior to the date hereof, the Plan has been approved by the
Board of Directors (hereinafter referred to as "Directors") of the Bank and by
the OTS. Pursuant to the Plan, the Bank will convert from a federally chartered
mutual savings bank to a federally chartered stock savings bank; the Company has
filed an application (the "Holding Company Application") with the OTS to become
a registered savings and loan holding company under HOLA; all the issued and
outstanding stock of the Bank will be sold to the Company, and the Company will
issue and sell its Common Stock (as defined below) in a Subscription Offering
and, if necessary, in a Community Offering or Public Offering, including a
syndicated public offering, all of which are described below and in the Plan.
Collectively, these transactions are referred to herein as the "Conversion."
Collectively, the Subscription Offering, the Community Offering, and the Public
Offering, including a syndicated public offering, are herein referred to as the
"Offerings"; and the term "Offering" shall mean any of the Offerings
individually. In the Offerings, the Company is offering between 352,750 and
477,250 shares, with the possibility of offering up to 548,838 shares without a
resolicitation of subscribers, as contemplated by Title 12 of the Code of
Federal Regulations, Part 563b.
Upon consummation of the Conversion, the Company will have authorized
capital of 6,000,000 shares of capital stock, of which 5,000,000 shares shall be
common stock, $0.10 par value per share (the "Common Stock") and 1,000,000
shares shall be preferred stock of $0.10 par value. The Company, in accordance
with the Plan, is offering, in a subscription offering by way of nontransferable
subscription
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August __, 1998
Page 2
rights, shares of Common Stock, in order of priority, to depositors of the Bank
with account balances of $50.00 or more as of December 31, 1996 ("Eligible
Account Holders"), the Bank's Employee Stock Ownership Plan, a tax qualified
employee benefit plan (the "ESOP"), depositors of the Bank with account balances
of $50.00 or more as of June 30, 1998 ("Supplemental Eligible Account Holders"),
and depositors other than Eligible Account Holders and Supplemental Eligible
Account Holders as of the Voting Record Date and borrowers of the Bank with
loans outstanding as of December 2, 1996 and continued outstanding as of the
Voting Record Date ("Other Members"). Any remaining shares not subscribed for in
the Subscription Offering may be offered by the Company for sale in a community
offering to the general public, with preference given to natural persons who
reside in Burlington County, New Jersey or to selected persons in a best efforts
Public Offering through Xxxx, Xxxx ("Other Subscribers"). With the exception of
the ESOP, which intends to purchase up to 8% of the total number of shares of
Common Stock issued in the Conversion, no individual person, or persons ordering
through a single account, may purchase in the Subscription Offering more than
6,000 shares of the Common Stock offered in the Conversion; no person will be
permitted to purchase more than 6,000 shares of Common Stock in the Community
Offering or Public Offering; and no person, together with their associates, or
group of persons acting together, may purchase more than 6,000 shares of the
Common Stock offered in the conversion; provided, however that the maximum
overall purchase limitation may be increased or decreased as a result of changes
in market and financial conditions prior to the completion of the Conversion, or
to fill the order of the ESOP, and subject to OTS approval. It is acknowledged
that the Company in its sole discretion may accept or reject, in whole or in
part, any orders to purchase shares of the Common Stock received in the
Community Offering or in the Public Offering.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form SB-2 (File No. 333-_____) (the
"Registration Statement") containing a Prospectus relating to the Offerings for
the registration of the Common Stock under the Securities Act of 1933, as
amended (the " 1933 Act"), and has filed such amendments thereto and such
amended prospectuses as may have been required to the date hereof. The
Prospectus, as amended, on file with the Commission at the time the Registration
Statement becomes effective is hereinafter called the "Prospectus", except that
if the Prospectus filed by the Company pursuant to Rule 424 (b) of the rules and
regulations of the Commission under the 1933 Act (the " 1933 Act Regulations")
differs from the prospectus on file at the time the Registration Statement
becomes effective, the term "Prospectus" shall refer to the prospectus filed
pursuant to Rule 424(b) from and after the time said prospectus is filed with
the Commission.
SECTION 1. Appointment of Agent; Compensation to the Agent. Subject to
the terms and conditions herein set forth, the Bank and the Company hereby
appoint the Agent as its agent to consult with and advise the Bank and the
Company, to solicit subscriptions and purchase orders for Common Stock on behalf
of the Bank and the Company, or manage a public offering of the Common Stock, as
the case may be, in connection with the Company's offering of Common Stock (i)
in the Subscription Offering, and (ii) if applicable, the Community Offering or
the Public Offering. On the basis of the representations, warranties and
agreements herein contained, and subject to the terms and conditions herein set
forth, Xxxx, Xxxx accepts such appointment and agrees to consult with and advise
the Bank and the Company as to the matters set forth in Section 3 of the
Engagement Letter between the Agent and the Bank dated March 24, 1998, included
as Exhibit A attached hereto, and to use its best efforts to solicit
subscriptions and purchase orders for Common Stock in accordance with this
Agreement; provided, however, that the Agent shall not be
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August __, 1998
Page 3
responsible for obtaining subscriptions or purchase orders for any specific
number of shares of Common Stock, shall not be required to purchase any shares
and shall not be obligated to take any action which is inconsistent with all
applicable laws, regulations, decisions or orders.
The appointment of the Agent hereunder shall terminate upon termination
of the Offerings and satisfaction of the obligations of the Bank and the Company
pursuant to this Agreement.
Subject to the prior approval of the Company and the Bank, Xxxx, Xxxx
may also assemble and manage a selling group of broker dealers ("Selling Group")
which are members of the National Association of Securities Dealers, Inc.
("NASD") to participate in the solicitation of purchase orders for shares of
Common Stock in the Public Offering under a selected dealers' agreement (the
"Selected Dealers' Agreement"). the form of which is set forth as Exhibit B to
this Agreement.
In addition to the reimbursement of the expenses specified in Sections
6, 7 and 8 hereof, the Agent will receive an advisory, management and marketing
fee of $125,000 ("Advisory and Marketing Fee") for the sale of the Common Stock
sold in the Subscription Offering and, if applicable, the Community Offering.
Such fees will include out-of-pocket expenses (including legal fees and
out-of-pocket expenses of such Counsel). The parties acknowledge, however, that
such cap may be exceeded in the event of any material delay in the Offerings
which would require an update of the financial information contained in the
Prospectus for a period later than March 31, 1998. Should the Company elect to
conduct a Public Offering, a selling group of NASD member firms (which may
include Xxxx, Xxxx or consist of only Xxxx, Xxxx) under a Selected Dealers'
Agreement (the "Selling Group") may be implemented, and the Bank shall pay a fee
to Xxxx, Xxxx for each share sold by it or selected dealers in a Public Offering
(collectively, "Selected Dealers' Fee") of five and one-half percent (5.5%) in
the aggregate. Xxxx, Xxxx shall be responsible for paying any appropriate fees
to a selected dealer for any shares of Common Stock sold by such a selected
dealer in the Public Offering. The Advisory and Marketing Fee and the Selected
Dealers' Fee are hereinafter collectively referred to as the "Sales
Compensation." No Selected Dealers' Fee shall be payable pursuant to this
section in connection with the sale of Common Stock to officers, directors,
employees (and members of the immediate family thereof), and employee benefit
plans of the Company and the Bank. It is acknowledged that the Bank paid the
Agent $25,000 of the Advisory and Marketing Fee upon execution of the Engagement
Letter. Xxxx, Xxxx will not commence sales of shares of Common Stock through
members of the Selling Group without prior approval of the Bank.
If the Conversion is not consummated by December 31, 1998, due to
conditions beyond the control of the Agent, or if the Agent terminates this
Agreement in accordance with Section 10 hereof, the Agent shall receive, in
addition to the Agent's reasonable out of pocket expenses, an advisory and
administrative services fee of $25,000 in consideration of its advisory and
administrative services in lieu of the Sales Compensation. If there is
necessitated a resolicitation of subscriptions and purchase orders, the Company,
the Bank and the Agent agree to negotiate in good faith an agreement to cover
the Agent's further fees and expenses in connection therewith.
The compensation specified above shall be payable (to the extent not
already paid) to the Agent on the earlier of the Closing Date (as hereinafter
defined), or a determination by the Company and the Bank to terminate or abandon
the Plan. The Bank and the Company agree to reimburse the Agent for the costs
and
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Page 4
expenses specified in Sections 6, 7 and 8 hereof, to the extent such costs and
expenses are reasonably incurred by the Agent, promptly upon receiving a
reasonable accounting of such costs and expenses.
SECTION 2. Closing Date: Release of Funds and Delivery of Certificates.
If all conditions precedent to the consummation of the Conversion, including,
without limitation, the sale of all Common Stock required by the Plan to be
sold, are satisfied, the Company agrees to issue or have issued the Common Stock
sold in the Offerings and to release for delivery certificates for Common Stock
on the Closing Date (as hereinafter defined) against payment therefor by release
of funds from the special interest bearing account referred to in Section 5(r)
hereof and by the authorized withdrawal of funds from deposit accounts of
Eligible Account Holders, Supplemental Eligible Account Holders and Other
Members in accordance with the Plan; provided, however, that no such funds shall
be released to the Company or withdrawn until the conditions specified in
Section 9 hereof shall have been complied with to the reasonable satisfaction of
the Agent and its counsel. Such release, withdrawal and payment shall be made at
the Closing Date of the Offerings, on a business day and at a place selected by
the Agent, which date and place are acceptable to the Bank and the Company, on
at least two business days prior notice to the Bank and Company (it being
understood that such business day shall not be more than ten business days after
completion of the Offerings or the solicitation of purchase orders for shares
under the Selected Dealers' Agreement unless an amendment to the Registration
Statement is required or the Conversion appraisal update has not been approved
by the OTS), or such other time or place as shall be agreed upon by the Agent,
the Bank and the Company. Certificates for Common Stock shall be delivered
directly to the purchasers thereof or in accordance with their directions. The
hour and date upon which the Company shall release or deliver the Common Stock
sold in the Offerings, in accordance with the terms hereof, are herein called
the "Closing Date."
SECTION 3. Prospectus: The Offerings. The Common Stock is to be offered
in the Offerings at $10.00 per share, as set forth on the cover page of the
Prospectus. The number of shares offered may be changed by the Company after
consultation with the Agent.
SECTION 4. Representations and Warranties of Company and Bank. The
Company and the Bank jointly and severally represent and warrant to the Agent as
follows.
(a) The Registration Statement was declared effective by the
Commission on August __, 1998. At the time the Registration Statement,
including the Prospectus contained therein, became effective, the
Registration Statement complied in all material respects with the
requirements of the 1933 Act and the 1933 Act Regulations and the
Registration Statement, any final Prospectus, any Blue Sky Application
or any Sales Document (as such terms are defined previously herein or
in Section 7 hereof) authorized by the Company or the Bank for use in
connection with the Offerings (and only with respect to information
provided by or approved by the Company and the Bank) did 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, in light of the circumstances under which they were made, not
misleading, and at the time any Rule 424(b) Prospectus was filed with
the Commission and at the Closing Date referred to in Section 2, the
Registration Statement, any preliminary or final Prospectus, any Blue
Sky Application or any Sales Information (as such terms are defined
previously herein or in Section 7 hereof) authorized by the Company or
the Bank for use in connection with the Offerings will not contain an
untrue statement of a material fact or omit to
Xxxx, Xxxx & Co., Inc.
August __, 1998
Page 5
state a material fact necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading; provided, however, that the representations and warranties
in this Section 4(a) shall not apply to statements in or omissions from
such Registration Statement, Prospectus or Sales Information made in
reliance upon and in conformity with information furnished in writing
to the Company or the Bank by the Agent expressly regarding the Agent
for use under the captions "Market for the Common Stock" and "The
Conversion - Marketing Arrangements. "
(b) The Bank has filed with the OTS the Conversion
Application, including the Prospectus, exhibits, and an amendment or
amendments thereto, as required, which was approved by the OTS; the
Proxy Statement of the Bank, to be dated as of August __, 1998, has
been approved by the OTS; and the Plan has been adopted by both the
Board of Directors of the Company and the Board of Directors of the
Bank.
(c) The Company has filed with the OTS the Holding Company
Application, which was approved by the OTS and, to the best knowledge
of the Company and the Bank, no order has been received by or is
pending before the OTS to prevent, suspend or revoke any approval
thereof.
(d) At the Closing Date, the Company and the Bank will have
completed all conditions precedent to the Conversion and the offer and
sale of the Common Stock in accordance with the Plan, the Conversion
Regulations and all other applicable material laws, regulations,
decisions and orders, including all terms, conditions, requirements and
provisions precedent to the Conversion imposed upon the Company or the
Bank by the Commission and the OTS or any other regulatory authority.
(e) No order has been issued by the Commission, the OTS, the
Federal Deposit Insurance Corporation (the "FDIC"), or any State
regulatory or Blue Sky authority preventing or suspending the use of
the Prospectus and no action by or before any such government entity to
revoke any approval, authorization or order of effectiveness related to
the Conversion is, to the best knowledge of the Bank or the Company,
pending or threatened.
(f) At the date hereof, to the best knowledge of the Company
and the Bank. no person has sought to obtain review of the final action
of the OTS in approving the Plan of Conversion or Holding Company
Application.
(g) At the time of the approval of the Conversion Application
by the OTS (including any amendment or supplement thereto) and at all
times subsequent thereto until the Closing Date, the Conversion
Application complied in all material respects with the Conversion
Regulations. The Prospectus contained in the Conversion Application
(including any amendments or supplements thereto) complied in all
material respects with the Conversion Regulations at the time of the
approval of the Conversion Application by the OTS and the Prospectus
contained in the Conversion Application will comply in all material
respects with such rules and regulations from such time until the
Closing Date.
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August __, 1998
Page 6
(h) FinPro, Inc. ("FinPro"), which prepared the Conversion
appraisal dated as of June 12, 1998, described in the Prospectus, is
independent with respect to the Company and the Bank within the meaning
of the Conversion Regulations, is believed by the Company and the Bank
to be experienced and expert in rendering corporate appraisals of
thrift institutions and the Bank believes that FinPro has prepared the
pricing information set forth in the Prospectus in accordance with the
requirements of the Conversion Regulations.
(i) Xxxxx X. Xxxxxx, III, the firm which certified the
financial statements filed as part of the Registration Statement is,
with respect to the Company and the Bank, an independent certified
public accountant as required by the 1933 Act and the 1933 Act
Regulations.
(j) The financial statements included in the Registration
Statement and which are part of the Prospectus present fairly the
financial condition, results of operations, retained earnings and
changes in financial position and statement of cash flows of the Bank,
at and for the dates indicated and the periods specified and comply as
to form in all material respects with the applicable accounting
requirements of the Conversion Regulations and generally accepted
accounting principles. Said financial statements are consistent with
financial statements and other reports filed by the Bank with the OTS
and the FDIC except that accounting principles employed in such
statements and reports (not including the Registration Statement)
conform to requirements of such authorities and not necessarily to
generally accepted accounting principles. The other financial,
statistical, and pro forma information and related notes included in
the Prospectus present fairly the information shown therein on a basis
consistent with the audited financial statements of the Bank included
in the Prospectus, and as to the pro-forma adjustments, the adjustments
made therein have been properly applied on the basis described therein.
(k) There has been no material change in the condition
(financial or otherwise), results of operations or business, including
assets and properties, of the Company and the Bank, taken as a whole,
since the latest date as of which such condition is set forth in the
Registration Statement and the Prospectus, except as set forth therein;
and the capitalization, assets, liabilities, properties and business of
each of the Company and the Bank conforms to the descriptions thereof
contained in the Registration Statement and the Prospectus. There has
been no material transactions entered into by the Company or the Bank,
except those transactions entered into in the ordinary course of
business and those specifically contemplated by the Prospectus,
including the execution of loan documents pertaining to the ESOP.
Neither the Company nor the Bank has any material liabilities of any
kind, contingent or otherwise, except as set forth in the Prospectus.
(l) The Bank is now a federally chartered savings bank in
mutual form of organization and upon the Conversion will become a
federally chartered savings bank in capital stock form of organization,
in both instances duly authorized to conduct its business and own its
property as described in the Registration Statement; the Company and
the Bank have obtained all material licenses, permits and other
governmental authorizations, currently required for the conduct of
their respective businesses; all such licenses, permits and the
governmental authorizations are in full force and effect; and the
Company and the Bank are in all material respects complying with all
laws, rules, regulations and orders applicable to the operation of
their businesses. The Bank does not own equity
Xxxx, Xxxx & Co., Inc.
August __, 1998
Page 7
securities or any equity interest in any other business enterprise
except as described in the Prospectus. Upon completion of the sale by
the Company of the shares of Common Stock contemplated by the
Prospectus, (i) the Bank will be converted pursuant to the Plan to a
federally chartered stock savings bank, (ii) all of the issued and
outstanding capital stock of the Bank will be owned by the Company, and
(iii) the Company will have no direct subsidiaries other than the Bank.
The Conversion will have been effected in all material respects in
accordance with all applicable statutes, regulations, decisions and
orders; and, except with respect to the filing of certain post-sale,
post-conversion reports and documents, all terms, conditions,
requirements and provisions with respect to the Conversion imposed by
the Commission and the OTS, if any, will have been complied with by the
Company and the Bank in all material respects or appropriate waivers
will have been obtained and all material notice and waiting periods
will have been satisfied, waived or elapsed.
(m) The deposit accounts of the Bank are insured by the
Savings Association Insurance Fund ("SAIF") as administered by the FDIC
up to the maximum amount allowed under law. Upon consummation of the
Conversion, the liquidation account for the benefit of Eligible Account
Holders and Supplemental Eligible Account Holders ("Liquidation
Account") will be duly established in accordance with the requirements
of the Conversion Regulations.
(n) Upon consummation of the Conversion, the authorized,
issued and outstanding equity capital of the Company will be as set
forth in the Registration Statement under the caption "Capitalization,"
and no shares of Common Stock have been or will be issued and
outstanding prior to the Closing Date referred to in Section 2, except
as to the issuance by the Company of shares of Common Stock, if any,
for the purpose of the Company's initial capitalization and conducting
organizational business, which shares of Common Stock shall be
cancelled on the Closing Date; the shares of Common Stock issued in the
Conversion will have been duly and validly 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 in
the Prospectus, will be duly and validly issued and fully paid and
non-assessable; the issuance of the Common Stock will not violate any
preemptive rights; and the terms and provisions of the Common Stock
will conform in all material respects to the description thereof
contained in the Registration Statement and the Prospectus. To the best
knowledge of the Company and the Bank, upon the issuance of the Common
Stock, good title to the Common Stock will be transferred from the
Company to the purchasers thereof against payment therefor, subject to
such claims as may be asserted against the purchasers thereof by
third-party claimants.
(o) The Company has been duly incorporated and is validly
existing as a I corporation in good standing under the laws of the
State of New Jersey with 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 Company is not
required to qualify as a foreign corporation in any jurisdiction where
it has not so qualified.
(p) As of the date hereof and as of the Closing Date, neither
the Company nor the Bank is in violation of its articles of
incorporation, charter or bylaws (and the Bank will not be in violation
of its charter or bylaws in capital stock form upon consummation of the
Conversion); the
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Page 8
consummation of the Conversion, the execution, delivery and performance
of this Agreement and the consummation of the transactions herein
contemplated have been duly and validly authorized by all necessary
corporate action on the part of the Company and the Bank; and this
Agreement has been validly executed and delivered by the Company and
the Bank and is the valid, legal and binding Agreement of the Company
and the Bank enforceable in accordance with its terms, except to the
extent that rights to indemnity hereunder may be limited under
applicable law and subject to bankruptcy, insolvency, reorganization or
other laws relating to or affecting the enforcement of creditors'
rights generally and equitable principles limiting the right to obtain
specific enforcement or similar equitable relief. The consummation of
the transactions herein contemplated will not (i) conflict with or
constitute a breach of, or default under, the articles of
incorporation, charter or bylaws of the Company or the Bank (in either
mutual or capital stock form), or any material contract, lease or other
instrument to which the Company or the Bank is a party or in which the
Company or the Bank has a beneficial interest, or any applicable law,
rule, regulation or order to which the Company or the Bank is subject;
(ii) violate any governmental license or permit or any authorization,
approval, judgment, injunction, writ, decree, order, statute, rule or
regulation applicable to the Company or the Bank; or (iii) with the
exception of the Liquidation Account established in the Conversion,
result in the creation of any lien, charge or encumbrance upon any
property of the Company or the Bank.
(q) The Company and the Bank have all such power, authority,
authorizations, approvals and orders as may be required to enter into
this Agreement, to carry out the provisions and conditions hereof and
to issue and sell the capital stock of the Bank and the Common Stock as
provided in the Plan and as described in the Prospectus, subject to the
final approval of the OTS and to the satisfaction of the conditions of
the OTS approval of the Conversion.
(r) The Company and the Bank have good and marketable title to
all properties and assets which are material to the business of the
Company and the Bank on a consolidated basis and to those properties
and assets described in the Registration Statement and the Prospectus
as owned by them, free and clear of all liens, except such liens as are
described in the Prospectus or are not materially significant or
important in relation to the business of the Company and the Bank on a
consolidated basis; and all of the leases and subleases material to the
business of the Company and the Bank on a consolidated basis under
which the Company or the Bank hold properties, including those
described in the Prospectus, are in full force and effect.
(s) The Company and the Bank are not in violation of any
directive from the Commission, the OTS, the FDIC, or any other agency
to make any material change in the method of conducting their
respective businesses so as to comply in all material respects with all
applicable statutes and regulations (including, without limitation,
regulations, decisions, directives and orders of the Commission, the
FDIC and the OTS) and there is no suit or proceeding, charge,
investigation or action before or by any court, regulatory authority or
governmental agency or body, pending or, to the knowledge of the
Company or the Bank, threatened, which might materially and adversely
affect the Conversion, the performance of this Agreement or the
consummation of the transactions contemplated in the Plan and as
described in the Prospectus or which might result in any material
adverse change in the financial condition, results of operations or
business of the Company and the
Xxxx, Xxxx & Co., Inc.
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Page 9
Bank taken as a whole or which would materially affect their properties
and assets.
(t) As of the Closing Date, the Bank and the Company shall
have conducted the Conversion in all material respects in accordance
with the Plan, and the Conversion Regulations and in the manner
described in the Prospectus.
(u) The Bank has received an opinion of its special counsel,
Xxxxxxx, Spidi, Sloane & Xxxxx, P.C., with respect to the federal
income tax consequences and with respect to the New Jersey income tax
consequences of the Conversion. The facts and representations upon
which such opinions are based are truthful accurate and complete, and
neither the Bank nor the Company will take any action inconsistent
therewith.
(v) No default exists, and no event has occurred which with
notice or lapse of time, or both, would constitute a default on the
part of the Company or the Bank in the due performance and observance
of any term, covenant or condition of any indenture, mortgage, deed of
trust, note, bank loan or credit agreement or any other instrument or
agreement to which the Company or the Bank is a party or by which any
of them or any of their property is bound or affected in any respect
which, in any such case, is material to the Company and the Bank; such
agreements are in full force and effect, and no other party to any such
agreements has instituted or, to the best knowledge of the Company or
the Bank, threatened any action or proceeding wherein the Company or
the Bank would or might be alleged to be in default thereunder.
(w) Subsequent to the date the Registration Statement is
declared effective by the Commission and prior to the Closing Date,
except as otherwise may be indicated or contemplated therein, neither
the Company nor the Bank will have issued any securities or incurred
any liability or obligation, direct or contingent, for borrowed money,
except borrowings from the same or similar sources indicated in the
Prospectus in the ordinary course of its business. For purposes of this
Section 4(w), obligations for borrowed money do not include deposits.
(x) The Company and the Bank have filed all federal, state and
local tax returns required to be filed and have made timely payments of
all taxes due and payable in respect of such returns and no deficiency
has been asserted with respect thereto by any taxing authority.
(y) To the best knowledge of the Company and the Bank, none of
the Company, the Bank or employees of the Bank has made any payment of
funds of the Company or the Bank as a loan for the purchase of 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 except as disclosed in the Prospectus with respect to the ESOP.
(z) Prior to the Conversion, the Bank was not authorized to
issue shares of capital stock; neither the Bank nor the Company has:
(i) issued any securities within the last 18 months (except for notes
to evidence other bank loans and reverse repurchase agreements); (ii)
had any material dealings within the 12 months prior to the date hereof
with any member of the NASD, or any person related to or associated
with such member, other than discussions and meetings relating to the
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Page 10
Conversion and routine purchases and sales of U.S. government
securities; (iii) entered into a financial or management consulting
agreement except as contemplated hereunder; and (iv) engaged any
intermediary between the Agent and the Company or the Bank in
connection with the offering of Common Stock, and no person is being
compensated in any manner for such service.
(aa) Neither the Company nor the Bank is required to be
registered under the Investment Company Act of 1940, as amended.
(bb) Except for information provided in writing to the Company
or Bank by the Agent for use in the Prospectus, the Company and the
Bank have not relied upon the Agent or its legal or other advisors for
any legal, tax or accounting advice in connection with the Conversion
(cc) To the best knowledge of the Company and the Bank, each
of them is in compliance in all material respects with all laws, rules
and regulations relating to environmental protection except where such
failure would not have a material adverse effect on the financial
condition of the Company and the Bank taken as a whole, and neither the
Company nor the Bank has been notified or is otherwise aware that
either of them is potentially liable, or is considered potentially
liable, under the Comprehensive Environmental Response, Compensation
and Liability Act of 1980, as amended, or any similar state law. No
action, suits, regulatory investigations or other proceedings are
pending, or, to the best knowledge of the Company and the Bank,
threatened against the Company or the Bank relating to environmental
protection, nor does the Company or the Bank have any reason to believe
any such proceedings may be brought against either of them. To the best
knowledge of the Company and the Bank, no disposal, release or
discharge of hazardous or toxic substances, pollutants or contaminants,
including petroleum and gas products, as any of such terms may be
defined under federal, state or local law, has occurred on, in, at or
about any of the facilities or properties of the Company or the Bank.
(dd) No labor dispute with the employees of the Company or the
Bank exists or, to the knowledge of the Company or the Bank, is
imminent.
(ee) All of the loans represented as assets on the most recent
financial statements or selected financial information of the Bank
included in the Prospectus meet or are exempt from all requirements of
federal, state and local law pertaining to lending, including, without
limitation, truth in lending (including the requirements of Regulations
Z and 12 C.F.R. Part 226), 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 and the
Bank taken as a whole. Any certificate signed by an officer of the Bank
or of the Company and delivered to the Agent or its counsel that refers
to this Agreement shall be deemed to be a representation and warranty
by the Bank or the Company to the Agent as to the matters covered
thereby with the same effect as if such representation and warranty
were set forth herein.
SECTION 4A. Representations and Warranties of Agent. The Agent
represents and warrants to the Company and the Bank as follows:
Xxxx, Xxxx & Co., Inc.
August __, 1998
Page 11
(a) The Agent is a corporation and is validly existing in good
standing under the laws of the State of New Jersey and under the rules
and regulations of the Commission and the NASD with full power and
authority to provide the services to be furnished to the Company and
the Bank hereunder.
(b) The Agent is registered as a broker-dealer with the
Commission and the NASD.
(c) The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby have been duly and
validly authorized by all necessary action on the part of the Agent,
and this Agreement has been duly and validly executed and delivered by
the Agent and is the legal, valid and binding agreement of the Agent,
enforceable in accordance with its terms (except as the enforceability
may be limited by applicable bankruptcy, insolvency, reorganization,
moratorium or similar laws relating to or affecting the enforcement of
creditors' rights generally, and subject, as to the enforcement of
remedies, including the remedy to specific performance and injunctive
and other forms of equitable relief which may be subject to certain
equitable defenses and to the discretion of the court before which any
proceeding may be brought, to general principles of equity regardless
of whether the enforceability is considered in a proceeding at law or
in equity).
(d) Each of the Agent and its employees, agents and
representatives who are assigned to the transaction contemplated hereby
have all licenses, approvals and permits necessary, to perform such
services; and the Agent is a registered selling agent in the
jurisdictions in which it is required to be registered in order to
perform its obligations under this Agreement and will remain registered
in such jurisdictions until the Conversion is consummated or
terminated.
SECTION 5. Covenants of the Company and Bank. The Company and the Bank
hereby jointly and severally covenant with you as follows.
(a) The Company has filed the Registration Statement with the
Commission. The Company will not, at any time before the Registration
Statement is declared effective by the Commission, file any amendment
to such Registration Statement without providing you and your counsel
an opportunity to review such amendment and to reasonably object in
writing. The Company will not, at any time after the date the
Registration Statement is declared effective, file any amendment or
supplement to the Registration Statement without providing you and your
counsel an opportunity to review such amendment or to which amendment
you or your counsel shall reasonably object.
(b) The Company and the Bank will use their best efforts to
cause the Registration Statement to be declared effective by the
Commission and the Conversion Application to be approved by the OTS and
will immediately upon receipt of any information concerning the events
listed below notify you: (i) when the Registration Statement has become
effective; (ii) of the receipt of any comments from the Commission, the
OTS, or any other governmental entity with respect to the Conversion or
the transactions contemplated by this Agreement; (iii) of the request
by the Commission, the OTS, or any other governmental entity for any
amendment or supplement to the
Xxxx, Xxxx & Co., Inc.
August __, 1998
Page 12
Registration Statement or for additional information; (iv) of the
issuance by the Commission, the OTS, or any other governmental entity
of any order or other action suspending the effectiveness of the
Registration Statement or the approval of the Conversion Application or
the use of the Registration Statement or the Prospectus or any other
filing of the Company and the Bank under the Conversion Regulations,
the 1933 Act, 1933 Act Regulations or other applicable law, or the
threat of any such action; (v) the issuance by the Commission, the OTS,
or any other state authority of any stop order suspending the
effectiveness of the Registration Statement or the Conversion
Application or of the initiation or threat of initiation or threat of
any proceedings for such purposes; or (vi) of the occurrence of any
event mentioned in paragraph (g) below. The Company and the Bank will
make every reasonable effort to prevent the issuance by the Commission,
the OTS, or any other state authority of any such order and, if any
such order shall at any time be issued, to obtain the lifting thereof
at the earliest possible time.
(c) The Company will provide you with notice of its intention
to file and reasonable time to review prior to filing any amendment or
supplement to the Conversion Application, the Holding Company
Application or to the Registration Statement or the Prospectus
(including a prospectus filed pursuant to Rule 424 which differs from
the prospectus on file at the time the Registration Statement and any
amendments thereto become effective) and will not file any such
amendment or supplement to which you shall reasonably object or which
shall be reasonably objected to by your counsel in writing.
(d) The Company and the bank will deliver to you and to your
counsel two conformed copies of each of the following documents, with
all exhibits: The Conversion Application and the Holding Company
Application, as originally filed and of each amendment or supplement
thereto, and the Registration Statement, as originally filed and each
amendment or supplement thereto.
(e) The Company and the Bank will deliver to you such number
of copies of the Prospectus, as amended or supplemented, as you may
reasonably request. The Company authorizes the Agent to use the
Prospectus (as amended or supplemented, if amended or supplemented) for
any lawful manner in connection with the sale of the Common Stock by
the Agent.
(f) During the periods prior to the Closing Date, when the
Prospectus is required to be delivered and subsequent to the Closing
Date, the Company and the Bank will comply, at their own expense, with
any and all terms, conditions requirements and provisions with respect
to the Conversion and the transactions contemplated thereby imposed
upon them by the Commission and the OTS, by applicable state law or the
Conversion Regulations, and by the 1933 Act, the 1933 Act Regulations,
the 1934 Act and the rules and regulations of the Commission
promulgated under such statutes, including, without limitation,
Regulation M under the 1934 Act, in each case as from time to time in
force, in accordance with the provisions hereof and the Prospectus.
(g) If, at any time during the period when the Prospectus
relating to the Shares is required to be delivered, any event relating
to or affecting the Company or the Bank shall occur, as a result of
which it is necessary or appropriate, in the opinion of counsel for the
Company and the Bank to amend or supplement the Registration Statement
or Prospectus in order to make the
Xxxx, Xxxx & Co., Inc.
August __, 1998
Page 13
Registration Statement or Prospectus not misleading in light of the
circumstances existing at the time it is delivered to a purchaser, the
Company and the Bank will, at their expense, forthwith prepare, file
with the Commission and furnish to you a reasonable number of copies of
an amendment or amendments of, or a supplement or supplements to, the
Registration Statement or Prospectus (in form and substance
satisfactory to you and your counsel after a reasonable time for
review) which will amend or supplement the Registration Statement or
Prospectus so that as amended or supplemented it will not contain any
untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in light of the
circumstances existing at the time the Prospectus is delivered to a
purchaser, not misleading.
(h) The Company and the Bank will take all necessary actions,
in cooperation with you, and furnish to whomever the Agent may direct
such information as may be required to qualify or register the Common
Stock and sale by the Company under the applicable securities or Blue
Sky laws of such jurisdictions as you and the Company and the Bank and
its counsel may agree upon; provided, however, that the Company shall
not be obligated to file any general consent to service of process or
to qualify to do business in any jurisdiction in which it is not so
qualified. In each jurisdiction where any of the Common Stock shall
have been qualified or registered as above provided, the Company will
make and file such statements and reports as are or may be required by
the laws of such jurisdiction.
(i) The Company will not sell or issue, contract to sell or
otherwise dispose of, for a period of 90 days after the date hereof,
without your prior written consent, any shares of Common Stock other
than the Common Stock or other than in connection with any plan or
arrangement described in the Prospectus.
(j) During the period during which the Company's Common Stock
is registered under the 1934 Act, the Company will furnish to its
stockholders as soon as practicable after the end of each fiscal year
an annual report (including a consolidated balance sheet and statements
of consolidated income, stockholders' equity or cash flow statement of
the Company and its subsidiaries as at the end of and for such year,
certified by independent public accountants in accordance with
Regulation S-X under the 1933 Act).
(k) During the period of three years from the date hereof, the
Company will furnish to you: (i) as soon as available, a copy of each
report of the Company furnished generally to stockholders of the
Company or furnished to or filed with the Commission under the 1934 Act
or any national securities exchange or system on which any class of
securities of the Company is listed or quoted, (including, but not
limited to, reports on Forms 10-KSB, 10-QSB and 8-K and all proxy
statements and annual reports to stockholders), a copy of each other
report of the Company mailed to its stockholders or filed with the
Commission or any national securities exchange or system on which any
class of securities of the Company is listed or quoted, each press
release and material news items and articles released by the Company or
the Bank and (ii) from time to time, such other public information
concerning the Company and the Bank as you may reasonably request.
(l) The Company and the Bank will use the net proceeds
from the sale of the Common
Xxxx, Xxxx & Co., Inc.
August __, 1998
Page 14
Stock substantially in the manner set forth in the Prospectus under the
caption "Use of Proceeds."
(m) Other than as permitted by the Conversion Regulations, the
1933 Act, the 1933 Act Regulations and the laws of any state in which
the shares of Common Stock are qualified for sale, neither the Company
nor the Bank will distribute any prospectus, offering circular or other
offering material in connection with the offer and sale of the Common
Stock.
(n) 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 regulations
promulgated under the 0000 Xxx) 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.
(o) The Company will promptly register the Common Stock
under Section 12(g) of the 1934 Act.
(p) The Company will timely file with the Commission such
reports concerning the sales of Common Stock sold in the Conversion and
the use of the proceeds thereof as required by Rule 463 under the 0000
Xxx.
(q) The Company will use its best efforts to encourage and
assist a marketmaker to establish and maintain a market for the Common
Stock sold in the Conversion on the Bulletin Board of the NASDAQ Stock
Market.
(r) The Bank will maintain appropriate arrangements for
depositing all funds received from persons mailing subscriptions for or
orders to purchase Common Stock in the Subscription Offering and
Community Offering on an interest bearing basis at the rate described
in the Prospectus until the Closing Date and satisfaction of all
conditions precedent to the release of the Bank's obligation to refund
payments received from persons subscribing for or ordering Common Stock
in the Subscription Offering and Community Offering in accordance with
the Plan as described in the Prospectus or until refunds of such funds
have been made to the persons entitled thereto in accordance with the
Plan and as described in the Prospectus. The Bank will maintain such
records of all funds received to permit the funds of each subscriber to
be separately insured by the SAIF (to the maximum extent allowable) and
to enable the Bank to make appropriate refunds of such funds in the
event that such refunds are required to be made in accordance with the
Plan and as described in the Prospectus.
(s) The Company will take such actions and furnish such
information as are reasonably requested by the Agent in order for Xxxx,
Xxxx to ensure compliance with the NASD's "Interpretation to Free
Riding and Withholding."
(t) The Bank will not amend the Plan without the Agent's prior
written consent in any manner that, in the opinion of the Agent, would
affect the sale of the Common Stock or the terms
Xxxx, Xxxx & Co., Inc.
August __, 1998
Page 15
of this Agreement, which approval shall not be unreasonably withheld.
(u) The Company and the Bank will use all reasonable efforts
to comply with, or cause to be complied with, the conditions precedent
to the several obligations of the Agent specified in Section 9 hereof,
unless such condition is waived by the Agent.
SECTION 6. Payment of Expenses. The Company and the Bank jointly and
severally agree to pay all expenses incident to the performance of the
obligations of the Company and the Bank under this Agreement, including the
following: (i) the preparation, issuance and delivery of certificates for the
Common Stock to the subscribers and purchasers in the Offerings; (ii) the fees
and disbursements of the Company's and the Bank's counsel, accountants and other
advisors; (iii) the qualification of the Common Stock under all applicable
securities or Blue Sky laws, including filing fees and the reasonable fees and
disbursements of counsel in connection therewith and in connection with the
preparation of a Blue Sky Survey; (iv) the printing and delivery to you in such
quantities as you shall reasonably request of copies of the Registration
Statement, the Prospectus and the Conversion Application and Holding Company
Application as originally filed and as amended or supplemented and all other
documents in connection with the Conversion and this Agreement; (v) the filing
fees incurred in connection with the review of the Registration Statement, the
Conversion Application, or any other application, form, or filing by the
Commission, the OTS and the NASD; (vi) the fees for listing the shares on the
OTC Bulletin Board of the Nasdaq Stock Market; (vii) the fees and expenses
relating to the appraisal; (viii) the fees and expenses relating to advertising
expenses, temporary personnel expenses, conversion center expenses, investor
meeting expenses, and other miscellaneous expenses relating to the marketing by
the Agent of the Common Stock; and (ix) the cost of printing all stock
certificates and all other documents applicable to the Conversion and the fees
and charges of any transfer agent, registrar and other agent. In the event that
the Agent incurs any of the above expenses on behalf of the Company or the Bank,
the Company or the Bank, as the case may be, shall pay or reimburse the Agent
for such reasonable fees and expenses regardless of whether the Conversion is
successfully completed. The Agent will not incur any single expense exceeding
$1,000 pursuant to this paragraph without the prior authorization of the Company
or the Bank. The parties hereto acknowledge that such expense limitations may
also be exceeded in the event of a material delay in the offering that requires
an update of financial information contained in the Registration Statement for a
period later than March 31, 1998.
SECTION 7. Indemnification.
(a) The Bank and the Company jointly and severally agree to indemnify
and hold harmless the Agent, its officers, directors, agents, servants and
employees and each person, if any, who controls you within the meaning of
Section 15 of the 1933 Act or Section 20(a) of the 1934 Act, against any and all
loss, liability, claim, damage or expense whatsoever (including but not limited
to settlement expenses, subject to the limitation in the last sentence of
paragraph (c) below), joint or several, that the Agent or any of them may suffer
or to which the Agent or any of them may become subject under all applicable
federal and state laws or otherwise, and to promptly reimburse the Agent and any
such persons upon written demand for any expenses (including reasonable fees and
disbursements of counsel) incurred by the Agent or any of them in connection
with investigating, preparing or defending any actions, proceedings or claims
(whether commenced or threatened) to the extent such losses, claims, damages,
liabilities or actions: (i) arise out of or are based upon any untrue statement,
or alleged untrue statements, of any material fact contained in the
Xxxx, Xxxx & Co., Inc.
August __, 1998
Page 16
Conversion Application, Holding Company Application or the Registration
Statement (the "Applications"), (or any amendment or supplement thereto), the
Prospectus (or any amendment or supplement thereto), the Proxy Statement (or any
amendment or supplement thereto), or any Blue Sky application or other
instrument or document of the Bank or based upon written information supplied by
the Bank or their representatives (including counsel) in any state or
jurisdiction to register or qualify any or all of the shares of Common Stock
under the securities laws thereof (or any amendment or supplement thereto)
(collectively, the "Blue Sky Application"), or any application or other
document, advertisement, or communication prepared, made or executed by or on
behalf of the Bank with its consent after review ("Sales Information") or based
upon written information or statements furnished or made by or on behalf of the
Bank or the Company, whether or not filed in any jurisdiction in order to
qualify or register the shares of Common Stock under the securities law thereof;
(ii) arise out of, or are based upon, the omission or alleged omission to state
in any of the foregoing documents or information, a material fact required to be
stated therein or necessary to make the statements herein, in light of the
circumstances under which they were made, not misleading; or (iii) arise from
any theory of liability whatsoever relating to or arising from or based upon any
Application (or any amendment or supplement thereto), the Prospectus (or any
amendment or supplement thereto), the Proxy Statement (or any amendment or
supplement thereto), Blue Sky Application or Sales Information or other
documentation prepared by the Bank or the Company and distributed in connection
with the Offerings; except to the extent such losses, claims, damages,
liabilities or actions arise out of or are based upon any untrue material
statements or alleged untrue material statements in, or material omission or
alleged material omission from an Application (or any amendment or supplement
thereto), the Prospectus (or any amendment or supplement thereto), the Proxy
Statement (or any amendment or supplement thereto), Blue Sky Application, or
Sales Information made in reliance upon and in conformity with information
furnished in writing to the Bank by the Agent regarding the Agent expressly for
use in the Prospectus, which the Bank and the Company acknowledge includes only
the information contained in the Prospectus under the captions "Market for
Common Stock" and "The Conversion-Marketing Arrangements"; nor shall
indemnification be required for material oral misstatements to a purchaser of
shares of Common Stock made by the Agent, which are not based upon information
provided by the Bank orally or in writing or based upon information contained in
the Application (or any amendment or supplement thereto), the Prospectus (or any
amendment or supplement thereto), the Proxy Statement (or any amendments or
supplements thereto), Blue Sky Application or any Sales Information distributed
in connection with the Conversion. In addition, neither the Company nor the Bank
will be liable under the foregoing indemnification provision to the extent that
any loss, claim, damage, liability or action is found in a final judgment by a
court to have resulted from the Agent's bad faith or negligence in performing
the services to be performed by the Agent under this Agreement. Notwithstanding
the foregoing, the indemnification provided for in this paragraph (a) 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.
For purposes of this section, the term "expense" shall include, but not be
limited to, counsel fees and costs, court costs, out-of-pocket costs and
compensation for the time spent by the Agent's directors, officers, employees
and counsel according to his or her normal hourly billing rates. The foregoing
agreement to indemnify shall be in addition to any liability the Company may
otherwise have to the Agent or the persons entitled to the benefit of these
indemnification provisions.
(b) The Agent jointly and severally agrees to indemnify and hold
harmless the Bank, the Company, the directors, officers, agents, servants and
employees of each of them, and each person, if any, who controls the Bank or the
Company within the meaning of Section 15 of the 1933 Act or Section 20(a)
Xxxx, Xxxx & Co., Inc.
August __, 1998
Page 17
of the 1934 Act against any and all loss, liability, claim, damage or expense
whatsoever (including but not limited to settlement expenses), joint or several,
which they, or any of them, may suffer or to which they, or any of them, may
become subject under all applicable federal and state laws or otherwise, and to
promptly reimburse the Bank or the Company, and any such persons upon written
demand for any expenses (including reasonable fees and disbursements of counsel)
incurred by them, or any of them, in connection with investigating, preparing or
defending any actions, proceedings or claims (whether commenced or threatened)
to the extent such losses, claims, damages, liabilities or actions: (i) arise
out of or are based upon any untrue statement or alleged untrue statement of a
material fact contained in any Application (or any amendment or supplement
thereto) or the Prospectus (or any amendment or supplement thereto), the Proxy
Statement (or any amendments or supplements thereto), or the Sales Information;
or (ii) arise out of or which are based upon the omission or alleged omission to
state in any of the foregoing documents a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading; provided, however,
that its obligations under this Section 7(b) shall exist only if, and only to
the extent, that such untrue statement or alleged untrue statement was made in,
or such material fact or alleged material fact was omitted from an Application
(or any amendment or supplement thereto), the Prospectus (or any amendment or
supplement thereto), the Proxy Statement (or any amendments or supplements
thereto), or the Sales Information in reliance upon and in conformity with
information furnished in writing to the Bank by the Agent or its representatives
(including counsel) expressly for use in the Prospectus, which the Bank and the
Company acknowledge includes only the information contained in the Prospectus
under the captions "Market for the Common Stock" and "The Conversion-Marketing
Arrangements." In addition, the Agent will not be liable under the foregoing
indemnification provision to the extent that any loss, claim, damage, liability
or action is found in a final judgment by a court to have resulted from the
Bank's bad faith or negligence.
(c) Each indemnified party shall give prompt written notice to each
indemnifying party of any action, proceeding, claim (whether commenced or
threatened), or suit instituted against it in respect of which indemnity may be
sought hereunder, but failure to so notify an indemnifying party shall not
relieve it from any liability which it may have on account of this Section 7 and
Section 8 herein. An indemnifying party may participate at its own expense in
the defense of such action. In addition, if it so elects within a reasonable
time after receipt of such notice, an indemnifying party, jointly with any other
indemnifying parties receiving such notice, may assume the defense of such
action with counsel chosen by it and reasonably acceptable to the indemnified
parties that are defendants in such action, unless such indemnified parties
reasonably object to such assumption on the ground that there may be legal
defenses available to them that are different from or in addition to those
available to such indemnifying party. If an indemnifying party assumes the
defense of such action, the indemnifying parties shall not be liable for any
fees and expenses of counsel for the indemnified parties incurred thereafter in
connection with such action, proceeding or claims, other than reasonable costs
of investigation. In no event shall the indemnifying parties be liable for the
fees and expenses of more than one firm of attorneys for the indemnified parties
(unless an indemnified party or parties shall have reasonably concluded that
there may be defenses available to it or them which are different from or
additional to those of the other indemnified parties) in connection with any one
action, proceeding or claim or separate but similar or related actions,
proceedings or claims in the same jurisdiction arising out of the same general
allegations or circumstances. The indemnifying party shall not be liable for any
settlement of such action, proceeding or suit effected without its prior written
consent.
Xxxx, Xxxx & Co., Inc.
August __, 1998
Page 18
(d) The agreement contained in this Section 7 and in Section 8 hereof
and the representations and warranties of the Bank and the Company set forth in
this Agreement shall remain operative and in full force and effect regardless
of: (i) any investigation made by or on behalf of the Agent or its officers,
directors or controlling persons, agents or employees or by or on behalf of the
Bank, the Company or any officers, directors or controlling persons, agents or
employees of the Bank or the Company; (ii) delivery of and payment hereunder for
the shares of Common Stock; or (iii) any termination of this Agreement.
SECTION 8. Contribution. If the indemnification of an indemnified party
provided for in Section 7 of this Agreement is for any reason held
unenforceable, the Bank or the Company and the Agent agree to contribute to the
losses, claims, damages and liabilities for which such indemnification is held
unenforceable: (i) in such proportion as is appropriate to reflect the relative
benefits to the Bank or the Company, on the one hand, and the Agent, on the
other hand, of the Conversion as contemplated (whether or not the Conversion is
consummated), or (ii) if the application provided for in clause (i) is for any
reason held unenforceable, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above but also the relative
fault of the Bank or the Company, on the one hand, and the Agent, on the other
hand, as well as other equitable considerations. The Bank or the Company agrees
that for the purposes of this Section 8, the relative benefits of the Bank or
the Company and the Agent of the Conversion as contemplated shall be deemed to
be in the same proportion that the total net proceeds from the Conversion
received by the Bank or the Company in connection with the Conversion bear to
the total fees paid or to be paid to the Agent under this Agreement. No person
found guilty of any fraudulent misrepresentation (within the meaning of Section
11(f) of the 0000 Xxx) shall be entitled to contribution from any person who was
not found guilty of such fraudulent misrepresentation. To the extent required by
law, this Section 8 is subject and limited by the provisions of Section 23A of
the Federal Reserve Act ("Section 23A"). For purposes of this Section 8, each of
the Agent's officers and directors and each person, if any, who controls the
Agent within the meaning of the 1933 Act and the 1934 Act shall have the same
rights to contribution as the Agent, and each person, if any, who controls the
Bank or the Company within the meaning of the 1933 Act and the 1934 Act, and
each officer, director and each person, if any, who controls the Bank or the
Company, shall have the same rights to contribution as the Bank and the Company.
Any party entitled to contribution shall promptly after receipt of notice of
commencement of any action, suit, claim or proceeding against such party in
respect to which a claim for contribution may be made against another party,
notify such other party, but the omission to so notify such party shall not
relieve the party from whom contribution may be sought from any other obligation
it may have hereunder or otherwise than under this Section 8. The Bank, the
Company and the Agent agree that it would not be just and equitable if
contribution pursuant to this Section 8 were determined by pro rata allocation
or by other method of allocation that does not take into account the equitable
considerations referred to above in this Section 8. It is expressly agreed that
the Agent shall not be required to contribute to the Bank or the Company for any
loss, liability, claim, damage or expense any amount that in the aggregate
exceeds the amount paid to the Agent under this Agreement.
SECTION 9. Conditions of Your Obligations. Your obligations hereunder,
as to the Common Stock to be delivered at the Closing Date, are subject, in your
discretion, to the condition that all representations and warranties and other
statements of the Bank and the Company herein are, at and as of the commencement
of each of the Offerings and at and as of the Closing Date, true and correct in
all material respects, the condition that the Bank and the Company shall have
performed in all material respects all of its obligations hereunder to be
performed on or before such dates, and to the following further conditions.
Xxxx, Xxxx & Co., Inc.
August __, 1998
Page 19
(a) The Registration Statement shall have been declared effective by
the Commission not later than 5:30 p.m. on the August __, 1998, or with
your consent at a later time and date; and at the Closing Date no stop
order suspending the effectiveness of the Registration Statement or the
consummation of the Conversion shall have been issued under the 1933
Act or proceedings therefor initiated or threatened by the Commission
or any state authority, and no order or other action suspending the
effectiveness of the Prospectus or the consummation of the Conversion
shall have been issued or proceedings therefor initiated or threatened
by the Commission, any state authority, the OTS or the FDIC.
(b) At the Closing Date you shall have received the following
documents, certificates or opinions.
(1) The favorable opinion, dated as of the Closing Date
addressed to the Agent and for its and its counsel's benefit,
of Xxxxxxx, Spidi, Sloane & Xxxxx, P.C., special counsel for
the Company and the Bank, in form and substance satisfactory
to the Agent and its counsel, that opines as to legal matters
set forth below.
(i) The Company has been duly incorporated and is
validly existing as a corporation in good standing
under the laws of the State of New Jersey. The Bank
is duly organized and validly exists as a federally
chartered savings bank under the laws of the United
States of America; the Bank has duly adopted a
federal stock charter and by-laws related thereto to
become effective upon consummation of the Conversion;
and upon the Conversion will become a duly organized
and validly existing federally chartered savings bank
in the capital stock form of organization.
(ii) The Company and the Bank each has the 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 the
Company is qualified to do business only in New
Jersey, which is, to our knowledge, the only state in
which it is doing business.
(iii) The deposit accounts of the Bank are insured by
the SAIF up to applicable limits in accordance with
applicable regulations; and, to such counsel's
knowledge, no proceeding for the termination or
revocation of such insurance is pending or
threatened. The Bank is a member of the Federal Home
Loan Bank of New York.
(iv) Upon consummation of the Conversion, the
authorized, issued and outstanding capital stock of
the Company will be within the range set forth in the
Registration Statement and the Prospectus under the
caption "Capitalization" and, to such counsel's
knowledge, no shares of Common Stock have been issued
prior to the Closing Date; the shares of Common Stock
to be sold in the Offerings have been duly and
validly authorized for issuance and, when issued and
delivered by the Company against payment therefor 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
Xxxx, Xxxx & Co., Inc.
August __, 1998
Page 20
nonassessable; and the issuance of the shares of
Common Stock is not subject to statutory preemptive
rights.
(v) Upon consummation of the Conversion, all of the
issued and outstanding capital stock of the Bank will
be duly authorized and validly issued and fully paid
and nonassessable, and all such capital stock will be
owned of record and, to such counsel's knowledge,
beneficially, by the Company free and clear of any
security interest, mortgage, pledge, lien,
encumbrance, claim or equity
(vi) The Company's acquisition of the Bank has been
approved by the OTS and, to such counsel's knowledge,
no action has been taken or is pending or threatened
to revoke such approval.
(vii) The Conversion Application, as amended or
supplemented, if amended or supplemented, as filed
with the OTS, complied as to form in all material
respects with the requirements of the HOLA and the
Conversion Regulations. The OTS has authorized the
Conversion, subject to the satisfaction of the
conditions set forth in its approval and, to such
counsel's knowledge, no action has been taken or is
pending or threatened to revoke such authorization.
(viii) The OTS has approved the Plan and to such
counsel's knowledge, such approval has not been
revoked; to such counsel's knowledge, the Company and
the Bank have conducted the Conversion in all
material respects in accordance with applicable
requirements of the Conversion Regulations,
applicable requirements of the Conversion
Regulations, applicable federal law and the Plan,
including all material applicable terms, conditions,
requirements and conditions precedent to the
Conversion imposed upon the Company and the Bank by
the Commission and the OTS; to such counsel's
knowledge no order has been issued by the Commission
or the OTS to suspend the Offerings and no action for
such purpose has been instituted or, to such
counsel's knowledge, threatened by the Commission or
the OTS; and, to the best of such counsel's
knowledge, no person has sought to obtain review of
the final action of the OTS in approving the
Conversion Application or the Plan.
(ix) This Agreement has been duly authorized,
executed and delivered by the Company and the Bank.
(x) The Registration Statement is effective under the
1933 Act and no stop order suspending effectiveness
has been issued under the 1933 Act and, to such
counsel's knowledge, no proceedings therefor have
been initiated or threatened by the Commission.
(xi) Subject to satisfaction of conditions of the OTS
in connection with its approval of the Conversion
Application and Holding Company Application, no
further approval, authorization, consent or other
order of any federal or state board
Xxxx, Xxxx & Co., Inc.
August __, 1998
Page 21
or body is required in connection with the execution
and delivery of this Agreement, the issuance of the
shares of Common Stock and the consummation of the
Conversion, except as may be required under the
securities or Blue Sky laws of various jurisdictions
as to which counsel need render no opinion.
(xii) At the time the Registration Statement became
effective, (i) the Registration Statement (as amended
or supplemented, if so amended or supplemented)
(other than the financial statements, stock valuation
information and other financial 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 1933 Act and
the 1933 Act Regulations and (ii) the Prospectus
(other than the financial statements, stock valuation
information and other financial 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 Conversion
Regulations and applicable banking and federal
securities law.
(xiii) The information in the Registration Statement
and Prospectus under the captions, "The Conversion",
"Regulation", "Taxation", "Restrictions on
Acquisition of Xxxxxxxxxx Bancorp, Inc." and
"Description of Capital Stock" to the extent that it
constitutes matters of law, summaries of legal
matters, documents or proceedings, or legal
conclusions, has been reviewed by such counsel and is
correct in all material respects; provided, however,
that as it relates to the information under the
caption "Taxation" the opinion need only address
matters of Federal law.
(xiv) The terms and provisions of the Common Stock
conform in all material respects to the description
thereof contained in the Prospectus, and the form of
certificate used to evidence the shares of Common
Stock conforms to New Jersey law.
(xv) To such counsel's knowledge, there are no
material contracts, indentures, loan agreements,
notes, leases or other instruments required to be
described or referred to in the Registration
Statement and Prospectus or to be filed as exhibits
thereto other than those described or referred to
therein or filed as exhibits thereto.
(xvi) To such counsel's knowledge, the Company and
the Bank have obtained all material federal licenses,
permits and other governmental authorizations
currently required under HOLA for the conduct of
their respective businesses as described in the
Prospectus or the Registration Statement, and to such
counsel's knowledge none of such material licenses,
permits and other governmental authorizations have
been revoked.
(xvii) The Plan has been duly authorized by the Board
of Directors of the Company and the Board of
Directors of the Bank and, effective upon
consummation of the Conversion, the Bank will be
authorized to issue its capital
Xxxx, Xxxx & Co., Inc.
August __, 1998
Page 22
stock to the Company
(xviii) To such counsel's knowledge, the Company is
not in violation of its articles of incorporation or
in 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 described
in the Prospectus or filed as an exhibit to the
Registration Statement except for such defaults or
violations which would not have a material adverse
impact on the financial condition or results of
operations of the Company and the Bank taken as a
whole; the execution and delivery of this Agreement,
the incurrence of the obligations herein set forth
and the consummation of the transactions contemplated
herein have been duly authorized by all necessary
corporate action on the part of the Company and will
not conflict with or constitute a breach of, or
default under, or result in the creation or
imposition of any material lien, charge or
encumbrance upon any property or assets of the
Company pursuant to any material contract, indenture,
loan agreement, note, lease or other instrument
described in the Prospectus or filed as an exhibit to
the Registration Statement, nor will such action
result in any violation of the provisions of the
articles of incorporation or bylaws of the Company.
(xix) To such counsel's knowledge, the Bank is not in
violation of its federal mutual charter (and the Bank
will not be in violation of its charter in stock form
upon consummation of the Conversion) or in default in
the performance or observance of any obligation,
agreement, covenant or condition contained in any
material contract, indenture, loan agreement, note,
lease or other instrument described in the Prospectus
or filed as an exhibit to the Registration Statement
except for such defaults or violations which would
not have a material adverse impact on the financial
condition or results of operations of the Company and
the Bank taken as a whole; the execution and delivery
of this Agreement, the incurrence of the obligations
herein set forth and the consummation of the
transaction contemplated herein, will not conflict
with or constitute a breach of, or default under, or
result in the creation or imposition of any material
lien, charge or encumbrance upon any property or
assets of the Bank pursuant to any material contract
indenture, loan agreement, note, lease or other
instrument, described in the Prospectus or filed as
an exhibit to the Registration Statement, nor will
such action result in any violation of the provisions
of the charter or bylaws of the Bank.
(xx) To such counsel's knowledge, the Company and the
Bank are not in violation of any written directive
from the OTS or the FDIC to make any material change
in the method of conducting their businesses.
(xxi) Based on the certificate of the inspector of
election, the Plan has been duly adopted by the
required vote of the members of the Bank.
Xxxx, Xxxx & Co., Inc.
August __, 1998
Page 23
In rendering such opinion, such counsel may rely (A)
as to matters involving the application of laws of any
jurisdiction or the United States, to the extent such counsel
deems proper and specified in such opinion, upon the opinion
of other counsel of good standing (providing that such counsel
states that the Agent and its counsel are justified in relying
upon such specified opinion or opinions), and (B) as to
matters of fact, to the extent such counsel deems proper, on
certificates of responsible officers of the Company and the
Bank and public officials.
(2) The favorable opinion, dated as of the Closing Date and
addressed to Xxxx Xxxx and for its benefit, of
___________________, the Bank's local counsel, in form and
substance to the effect that:
(i) The Bank is duly qualified to do business only in
New Jersey, which is, to our knowledge, the only
state in which it is doing business.
(ii) There are no legal or governmental proceedings
pending or, to such counsel's knowledge, threatened
against the Company or the Bank, other than those
disclosed in the Registration Statement, and all
pending legal and governmental proceedings to which
the Company or the Bank is the subject which are not
disclosed in the Registration Statement, including
ordinary routine litigation incidental to the
business, are, considered in the aggregate, not
material.
(iii) To such counsel's knowledge, the Company and
the Bank have obtained all material state and local
licenses, permits and other governmental
authorizations currently required for the conduct of
their respective businesses as described in the
Registration Statement and Prospectus, and to such
counsel's knowledge, all such licenses, permits and
other governmental authorizations are in full force
and effect, and the Company and the Bank are in all
material respects complying therewith.
(iv) To the best of such counsel's knowledge, the
Company and the Bank have title to all properties and
assets which are material to the business of the
Company and the Bank, respectively, and to those
properties and assets described in the Registration
Statement as owned by them, free and clear of all
liens, charges, encumbrances or restrictions, except
such as are described in the Registration Statement
(including the Liquidation Account) or are not
material in relation to the business of the Company
and the Bank considered as one enterprise
(3) the letter of special counsel for the Company and the Bank
addressed to the Agent, dated the Closing Date, in form and
substance to the effect that:
During the preparation of the Conversion Application,
the Registration Statement and the Prospectus, such counsel
participated in conferences with management of and the
independent public accountants for the Company and the Bank
and the Agent and its representatives and based upon such
conferences and a review of corporate records of the
Xxxx, Xxxx & Co., Inc.
August __, 1998
Page 24
Company and the Bank as such counsel conducted in connection
with the preparation of the Registration Statement, nothing
has come to their attention that would lead them to believe
that, the Registration Statement, the Prospectus, or any
amendment or supplement thereto (other than the financial
statements, notes to financial statements, financial tables
and other financial and statistical data and stock valuation
information included therein, as to which such counsel need
express no view), 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, in light
of the circumstances under which they were made, not
misleading.
(4) The favorable opinion, dated as of the Closing Date, of
Xxxx Xxxxxx Xxxxxx Xxxxxxxx & Xxxxxx, P.C, your counsel, with respect
to such matters as you may reasonably require. Such opinion may rely
upon the opinions of counsel to the Bank and the Company, and as to
matters of fact, upon certificates of officers and directors of the
Company and the Bank delivered pursuant hereto or as such counsel shall
reasonably request.
(c) At the Closing Date, you shall receive a certificate of the Chief Executive
Officer and the Chief Financial Officer of the Company and of the Chief
Executive Officer; and Chief Financial Officer of the Bank, dated as of such
Closing Date, to the effect that: (i) since the respective dates as of which
information is given in the Registration Statement and the Prospectus, there has
been no material adverse change in the financial condition, results of
operations or business of the Company and the Bank considered as one enterprise,
whether or not arising in the ordinary course of business; (ii) the
representations and warranties in Section 4 of this Agreement are true and
correct with the same force and effect as though expressly made at and as of the
Closing Date; (iii) the Company and the Bank have complied with all agreements
and satisfied all conditions on their part to be performed or satisfied at or
prior to the Closing Date and will comply with all obligations to be satisfied
by them after the Conversion; (iv) no stop order suspending the effectiveness of
the Registration Statement has been initiated or threatened by the Commission or
any state authority; and (v) no order suspending any of the Offerings, the
Conversion, the acquisition of all of the shares of the Bank by the Company or
the effectiveness of the Prospectus has been issued and no proceedings for that
purpose have been initiated or threatened by the Commission, any state
authority, the FDIC or the OTS.
(d) Prior to and at the Closing Date: (i) there shall have been no material
adverse change in the financial condition, results of operations or business of
the Company or the Bank independently, or of the Company or the Bank, considered
as one enterprise, from that as of the latest dates as of which such condition
is set forth in the Prospectus, except as referred to therein; (ii) there shall
have been no material transaction entered into by the Company and the Bank,
considered as one enterprise, from the latest date as of which the financial
condition of the Company or the Bank is set forth in the Prospectus other than
transactions referred to or contemplated therein; (iii) the Company or the Bank
shall not have received from the FDIC or the OTS any direction (oral or written)
to make any material change in the method of conducting their 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 financial
condition, results of operations or business of the Company or the Bank; (iv)
neither the Company nor the Bank shall have been in default (nor shall an event
have occurred which, with notice or lapse of time or both, would constitute a
default) under any provision
Xxxx, Xxxx & Co., Inc.
August __, 1998
Page 25
of any agreement or instrument relating to any outstanding indebtedness; (v) no
action, suit or proceedings, at law or in equity or before or by any federal or
state commission, board or other administrative agency, shall be pending or, to
the knowledge of the Company or the Bank, threatened against the Company or the
Bank or affecting any of their properties wherein an unfavorable decision,
ruling or finding would materially and adversely affect the financial condition,
results of operations or business of the Company or the Bank, taken as a whole;
and (vi) the shares of Common Stock shall have been qualified or registered for
offering and sale under the securities or blue sky laws of the jurisdictions as
set forth in the Preliminary Blue Sky Survey of the law firm of Xxxxxxx, Spidi,
Sloane & Xxxxx, P.C.
(e) Concurrently with the execution of this Agreement, the Agent, the Company
and the Bank shall receive a letter from Xxxxx X. Xxxxxx, III, dated August ___,
1998 and addressed to the Agent: (i) confirming that Xxxxx X. Xxxxxx, III, is a
firm of independent public accountants with respect to the Company and the Bank
within the meaning of the 1933 Act and the 1933 Act Regulations and stating in
effect that in its opinion the financial statements of the Bank for the years
ended September 30, 1997 and 1996 and the six months ended March 31, 1998 and
1997, as are included in the Prospectus and, with respect to such audited
financial statements covered by its opinion included therein, comply as to form
in all material respects with the applicable accounting requirements of the 1933
Act, the 1934 Act and the related published rules and regulations of the
Commission thereunder and generally accepted accounting principles; (ii) stating
in effect that, on the basis of certain agreed upon procedures (but not an
examination in accordance with generally accepted auditing standards) consisting
of a reading of the latest available unaudited interim financial statements of
the Bank prepared by the Bank, a reading of the minutes of the meetings of the
Board of Directors and members of the Bank and consultations with officers of
the Bank responsible for financial and accounting matters, nothing came to its
attention which caused it to believe that: during the period from that date of
the latest audited financial statements included in the Prospectus to a
specified date not more than five business days prior to the date hereof, there
was any material increase in borrowings by the Company or the Bank (increases in
borrowings (which shall not include deposits) will not be deemed material if
such increase in total borrowings outstanding does not exceed $500,000); or
there was any material decrease in surplus and reserves of the Bank at the date
of such letter as compared with amounts shown in the latest audited statement of
condition included in the Prospectus or there was any material decrease in net
income or net interest income of the Bank for the number of full months
commencing immediately after the period covered by the latest audited income
statement included in the Prospectus and ended on the latest month end prior to
the date of the Prospectus or in such letter as compared to the corresponding
period in the preceding year; and (iii) stating that, in addition to the
examination referred to in its opinion included in the Prospectus and the
performance of the procedures referred to in clause (ii) of this subsection (e),
it has compared with the general accounting records of the Company and/or the
Bank, as applicable, which are subject to the internal controls of the Company's
and/or the Bank's, as applicable, accounting system and other data prepared by
the Company and/or the Bank, as applicable, directly from such accounting
records, to the extent specified in such letter, such amounts and/or percentages
set forth in the Prospectus as you may reasonably request; and they have found
such amounts and percentages to be in agreement therewith (subject to rounding).
(f) At the Closing Date, you shall receive a letter from Xxxxx X. Xxxxxx, III,
dated the Closing Date, addressed to the Agent, confirming the statements made
by it in the letter delivered by it pursuant to subsection (e) of this Section
9, the "specified date" referred to in clause (ii) (C) thereof to be a date
specified
Xxxx, Xxxx & Co., Inc.
August __, 1998
Page 26
in such letter, which shall not be more than five business days prior to the
Closing Date.
(g) At the Closing Date, you shall have received a letter from FinPro, dated as
of the Closing Date, confirming its appraisal.
(h) At the Closing Date, your counsel shall have been furnished with such
documents and opinions as they may reasonably require for the purpose of
enabling them to pass upon the sale of the shares as herein contemplated and
related proceedings or in order to evidence the accuracy or completeness of any
of the representations or warranties, or the fulfillment of any of the
conditions, herein contained; and all proceedings taken by the Company or the
Bank in connection with the Conversion and the sale of the shares of Common
Stock as herein contemplated shall be satisfactory in form and substance to you
and your counsel.
(i) The Company and the Bank shall not have sustained since the date of the
latest audited financial statements included in the Registration Statement and
Prospectus any loss or interference with its business from fire, explosion,
flood or other calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, otherwise than as set
forth or contemplated in the Registration Statement or otherwise provided to the
Agent in writing and in any such case described above, is in your judgment
sufficiently material and adverse as to make it impracticable or inadvisable to
proceed with any of the Offerings or the delivery of the Common Stock on the
terms and in the manner contemplated in the Prospectus.
(j) Subsequent to the date hereof, there shall not have occurred any of the
following: (i) a suspension or limitation in trading in securities generally on
the New York Stock Exchange or American Stock Exchange or in the
over-the-counter market, or quotations halted generally on the Nasdaq Stock
Market, or minimum or maximum prices for trading have been fixed, or maximum
ranges for prices for securities have been required by either of such exchanges
or the NASD or by order of the commission or any other governmental authority;
(ii) a general moratorium on the operation of commercial banks, federal savings
and loan associations or savings and loan associations in New Jersey or a
general moratorium on the withdrawal of deposits from commercial banks, federal
savings and loan associations or savings and loan associations in New Jersey
declared by either federal or New Jersey authorities; (iii) the engagement by
the United States in hostilities which have resulted in the declaration, on or
after the date hereof, of a national emergency or war; or (iv) a material
decline in the price of equity or debt securities if the effect of such a
decline, in your judgment, makes it impracticable or inadvisable to proceed with
any of the Offerings or the delivery of the shares of Common Stock on the terms
and in the manner contemplated in the Prospectus.
If any of the conditions specified in this Section 9 shall not have
been fulfilled when and as required by this Agreement, or by December 31, 1998,
this Agreement and all of your obligations hereunder may be canceled by you by
notifying the Bank of such cancellation in writing or by telegram at any time at
or prior to the Closing Date, and any such cancellation shall be without
liability of any party to any other party except as otherwise provided in
Sections 1, 6, 7 and 8 hereof. Notwithstanding the above, if this Agreement is
canceled pursuant to this paragraph, the Bank and the Company jointly and
severally agree to reimburse you for all of your out-of-pocket expenses
reasonably incurred by you, including any legal fees to be paid to the Agent's
counsel, and an advisory and administrative services fee of $25,000 in
connection with the
Xxxx, Xxxx & Co., Inc.
August __, 1998
Page 27
preparation of the Registration Statement and the Prospectus, and in
contemplation of the proposed Offerings.
SECTION 10. Termination.
(a) In the event the Company fails to sell all of the Common Stock
within the period specified, and in accordance with the provisions of the Plan
or as required by the Conversion Regulations, this Agreement shall terminate
upon refund by the Bank to each person who has subscribed for or ordered any of
the Common Stock the full amount which it may have received from such person,
together with interest as provided in the Prospectus, and no party to this
Agreement shall have any obligation to the other hereunder, except for payment
by the Bank and/or the Company as set forth in Sections 1, 6, 7 and 8 hereof.
(b) This Agreement may be terminated by the Agent, with respect to the
Agent's obligations hereunder, by notifying the Company at any time at or prior
to the Closing Date, if any of the conditions specified in Section 9 hereof
shall not have been fulfilled when and as required by this Agreement or if the
Conversion has not been completed by December 31, 1998.
SECTION 11. Survival. The respective indemnities, agreements,
representations, warranties and other statements of the Bank, the Company and
you, as set forth in this Agreement, shall remain in full force and effect,
regardless of any investigation (or any statement as to the results thereof)
made by or on behalf of you or any of your officers or directors of any person
controlling you, or the Bank or the Company, or any officer, director or person
controlling the Bank or the Company, and shall survive termination of this
Agreement and the receipt or delivery of any payment for the shares of Common
Stock.
SECTION 12. Miscellaneous. Notices hereunder, except as otherwise
provided herein, shall be given in writing or by telegraph, addressed (a) to the
Agent at 000 Xxxxxxxx Xxxx, Xxxxx 000, Xxxx Xxxxxx, Xxxxxxxxxxxx 00000-0000
(Attention: Xxxxxxx Xxxxx), with copies to Xxxx Xxxxxx Xxxxxx Xxxxxxxx & Xxxxxx,
P.C., Suite 400, 0000 Xxxxxxxxx Xxxxxx, X.X., Xxxxxxxxxx X.X. 00000 (Attention:
Xxxxxx X. Xxxxxxx, Esq.) and (b) to the Bank and the Company at the Bank's
principal office (Attention: Xxxx X. Xxxxxxxx), President), with a copy to
Xxxxxxx, Spidi, Sloane & Xxxxx, P.C., 0000 X Xxxxxx, X.X., Xxxxx 000 Xxxx,
Xxxxxxxxxx, X.X. 00000 (Attention: Xxxx X. Spidi, Esq.).
This Agreement is made solely for the benefit of and will be binding
upon the parties hereto and their respective successors and the controlling
persons, directors and officers referred to in Section 7 hereof, and no other
person will have any right or obligation hereunder. The term "successors" shall
not include any purchaser of any of the shares of Common Stock.
Capitalized terms used herein but not herein defined shall have the
meanings ascribed to them in the Plan, unless the context hereof clearly
indicates otherwise.
This Agreement shall be governed by and construed in accordance with
the laws of the State of New Jersey.
Time shall be of the essence of this Agreement.
Xxxx, Xxxx & Co., Inc.
August __, 1998
Page 28
This Agreement may be signed in various counterparts which together
will constitute one agreement.
If the foregoing correctly sets forth the arrangement among the
Company, the Bank and the Agent, please indicate acceptance thereof in the space
provided below for that purpose, whereupon this letter and your acceptance shall
constitute a binding agreement.
XXXXXXXXXX BANCORP, INC., PEOPLES SAVINGS BANK,
a New Jersey corporation a federal savings bank
By: By:
------------------------------------- -------------------------------------
Xxxx X. Xxxxxxxx Xxxx X. Xxxxxxxx
President and Chief Executive Officer President and Chief Executive Officer
Accepted as of the date first above written.
XXXX, XXXX & CO., INC.
By:
-------------------------------------
Xxx X. Xxxxxxx
President and Chief Executive Officer
Xxxx, Xxxx & Co., Inc.
August __, 1998
Page 29
If the foregoing correctly sets forth the arrangement among the
Company, the Bank and the Agent, please indicate acceptance thereof in the space
provided below for that purpose, whereupon this letter and your acceptance shall
constitute a binding agreement.
XXXXXXXXXX BANCORP, INC., PEOPLES SAVINGS BANK,
a New Jersey corporation a federal savings bank
By: By:
------------------------------------- -------------------------------------
Xxxx X. Xxxxxxxx Xxxx X. Xxxxxxxx
President and Chief Executive Officer President and Chief Executive Officer
Accepted as of the date first above written.
XXXX, XXXX & CO., INC.
By:
-------------------------------------
Xxx X. Xxxxxxx
President and Chief Executive Officer