Exhibit 1.2
HAMPDEN BANCORP, INC.
(a Delaware corporation)
6,583,750 Shares
(subject to increase to 7,571,313 Shares)
COMMON STOCK
($0.01 Par Value)
Subscription Price $10.00 Per Share
AGENCY AGREEMENT
November ___, 2006
Xxxxx, Xxxxxxxx & Xxxxx, Inc.
000 Xxxxxxxxx Xxxxx
Xxxxxx, Xxxx 00000-0000
Ladies and Gentlemen:
Hampden Bancorp, Inc., a Delaware corporation (the "Company"), Hampden
Bancorp, MHC, a Massachusetts chartered mutual holding company (the "MHC"), and
Hampden Bank, a Massachusssetts chartered savings bank (the "Bank"), hereby
confirm, jointly and severally, their agreement with Xxxxx, Xxxxxxxx & Xxxxx,
Inc. ("KBW" or the "Agent") as follows:
SECTION 1. THE OFFERING. In accordance with a Plan of Conversion (the
"Plan") adopted by the Board of Directors of the Bank and the Board of Trustees
of the MHC, the MHC will convert from a mutual holding company structure to a
fully public stock holding company. As part of the Plan, the following steps
will be effectuated: (i) the MHC will establish the Company as a Delaware
corporation, (ii) the MHC will combine with the Bank in a transaction in which
the MHC will cease to exist and each share of the Bank's common stock
outstanding will be extinguished, and (iii) the Bank will issue 100% of its
newly outstanding common stock to the Company in exchange for a portion of the
net proceeds of the Offering (as hereinafter defined) and, as a result, the Bank
will become a wholly-owned subsidiary of the Company.
In accordance with the Plan, the Company will offer and sell up to
6,583,750 shares (subject to increase to 7,571,313 shares) of its common stock,
$0.01 par value per share (the "Common Shares"). The Common Shares to be sold by
the Company in the Offering (as hereinafter defined) are hereinafter called the
"Securities." In addition, in accordance with the Plan and as described herein,
the Company expects to contribute Common Shares, in an amount equal to 5% of the
Common Shares sold in the Offering (as hereinafter defined), to the Hampden Bank
Charitable Foundation (the "Foundation"), such shares being referred to herein
as the "Foundation Shares."
Pursuant to the Plan, the Company will offer the Securities in a
subscription offering (the "Subscription Offering") to (1) depositors of the
Bank having accounts at the Bank with aggregate balances of at least $50.00
on April 30, 2005 ("Eligible Account Holders"), (2) depositors of the Bank
having accounts at the Bank with aggregate balances of at least $50.00 on
September 30, 2006 ("Supplemental Eligible Account Holders"), (3) any Tax
Qualified Employee Plan (as defined in the Plan), and (4) directors,
trustees, Employees and Officers (as defined in the Plan) of the MHC and the
Bank. Subject to the prior subscription rights of the above-listed parties,
the Company may offer for sale in a community offering (the "Community
Offering" and when referred to together with or subsequent to the
Subscription Offering, the "Subscription and Community Offering") conducted
concurrently with or subsequent to the Subscription Offering, the Securities
not subscribed for or ordered in the Subscription Offering to members of the
general public to whom a copy of the Prospectus (as hereinafter defined) is
delivered with a preference given first to people who are residents of the
counties of Hampden, Berkshire and Hampshire, Massachusetts and the county of
Hartford, Connecticut. It is anticipated that Securities not subscribed for
in the Subscription and Community Offering may be offered to certain members
of the general public on a best efforts basis through a selected dealers
agreement (the "Syndicated Community Offering") (the Subscription Offering,
Community Offering and Syndicated Community Offering are collectively
referred to as the "Offering"). It is acknowledged that the purchase of
Securities in the Offering is subject to the maximum and minimum purchase
limitations as described in the Plan and that the Company may reject, in
whole or in part, any orders received in the Subscription Offering (to the
extent permitted by the Conversion Regulations), Community Offering or
Syndicated Community Offering. Collectively, the transactions described in
this Section 1 are referred to herein as the "Conversion."
The Company has filed with the Securities and Exchange Commission (the
"SEC") a registration statement on Form S-1 (File No. 333-137359) (the
"Registration Statement") containing a prospectus relating to the Offering for
the registration of the Securities and the Foundation Shares under the
Securities Act of 1933 (the "1933 Act"), and has filed such amendments thereof
and such amended prospectuses as may have been required to the date hereof. The
term "Registration Statement" shall include any documents incorporated by
reference therein and all financial schedules and exhibits thereto, as amended,
including post-effective amendments. The prospectus, as amended, on file with
the SEC at the time the Registration Statement initially became effective is
hereinafter called the "Prospectus," except that if any Prospectus is filed by
the Company pursuant to Rule 424(b) or (c) of the rules and regulations of the
SEC under the 1933 Act (the "1933 Act Regulations") differing from the
prospectus on file at the time the Registration Statement initially becomes
effective, the term "Prospectus" shall refer to the prospectus filed pursuant to
Rule 424(b) or (c) from and after the time said prospectus is filed with the SEC
and shall include any supplements and amendments thereto from and after their
dates of effectiveness of use, respectively.
In accordance with Chapter 167H, Section 9 of the Massachusetts General
Laws and Chapter 33 of the Massachusetts Administration Code (together, the
"Massachusetts Conversion Regulations"), the MHC has filed with the
Massachusetts Commissioner of Banks (the "Commissioner") an Application for
Conversion (such application, as amended to date, if applicable, and as from
time to time amended or supplemented hereafter, is hereinafter referred
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to as the "Massachusetts Application"), including copies of the MHC's
Information Statement for a Special Meeting of its Corporators relating to the
Conversion (the "Corporators' Statement"), the Valuation Appraisal Report
prepared by RP Financial, LC. (the "Appraisal"), and the Prospectus. In
accordance with 12 U.S.C. ss. 1828(c) and 12 C.F.R. Part 303, Subpart D
(together with the Massachusetts Converssion Regulations, the "Conversion
Regulations"), the Bank has filed with the Federal Deposit Insurance Corporation
(the "FDIC") an application for the MHC to merge with and into the Bank (such
application, as amended to date, if applicable, and as from time to time amended
or supplemented hereafter, is hereinafter referred to as the "FDIC Merger
Application" and together with the Massachusetts Application, the "Conversion
Applications"), including the Corporators' Statement, the Appraisal and the
Prospectus. In connection with the Conversion, the Company filed with the
Federal Reserve Board (the "FRB") an application on Form FRY-3 for approval,
pursuant to Section 3(a)(1) of the Bank Holding Company Act of 1956, as amended
(the "BHC Act"), for the Company to become a bank holding company with respect
to the Bank (such application, as amended to date, if applicable and as from
time to time amended or supplemented hereafter, is hereinafter referred to as
the "BHC Application," and together with the Conversion Applications, the
"Applications").
SECTION 2. RETENTION OF AGENT; COMPENSATION. Subject to the terms and
conditions herein set forth, the Company, the MHC and the Bank hereby appoint
the Agent as their exclusive financial advisor and marketing agent to utilize
its best efforts to solicit subscriptions for Securities and to advise and
assist the Company, the MHC and the Bank with respect to the Company's sale of
the Securities in the Offering.
On the basis of the representations, warranties, and agreements herein
contained, but subject to the terms and conditions herein set forth, the Agent
accepts such appointment and agrees to consult with and advise the Company, the
MHC and the Bank as to the matters set forth in the letter agreement, dated May
9, 2006, made by and between the MHC and the Agent. It is acknowledged by the
Company, the MHC and the Bank that the Agent shall not be required to purchase
any Securities or be obligated to take any action which is inconsistent with all
applicable laws or regulations, or applicable decisions or orders of courts or
other governmental authorities.
The obligations of the Agent pursuant to this Agreement shall
terminate upon the completion or termination or abandonment of the Plan by
the Company, the MHC or the Bank or upon termination of the Offering, but in
no event later than 45 days after the completion of the Subscription Offering,
unless the Company and the Agent agree in writing to extend such period and
the Commissioner agrees to extend the period of time in which the Securities
may be sold (the "End Date"). All fees or expenses due to the Agent will be
payable to the Agent in next day funds at the earlier of the Closing Date (as
hereinafter defined) or the End Date. In the event the Offering is extended
beyond the End Date, the Company, the MHC, the Bank and the Agent may agree
to renew this Agreement under mutually acceptable terms.
In the event the Company is unable to sell a minimum of 4,866,250
Securities within the period herein provided, this Agreement shall terminate and
the Company shall refund to any persons who have subscribed for any of the
Securities the full amount that it may have received from them plus accrued
interest, as set forth in the Prospectus; and none of the parties to this
Agreement shall have any obligation to the other parties hereunder, except as
set forth in this Section 2 and in Sections 6, 8 and 9 hereof. In the event the
Offering is terminated for any
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reason not attributable to the action or inaction of the Agent, the Agent shall
be paid the fees and expenses due to the date of such termination pursuant to
subparagraphs (a) and (d) below.
If all conditions precedent to the consummation of the Conversion,
including, without limitation, the sale of all Securities required by the Plan
to be sold, are satisfied, the Company agrees to issue, or have issued, the
Securities sold in the Offering and to release for delivery certificates for
such Securities on the Closing Date (as hereinafter defined) against payment to
the Company by any means authorized by the Plan; provided, however, that no
funds shall be released to the Company until the conditions specified in Section
7 hereof shall have been complied with to the reasonable satisfaction of the
Agent and its counsel. The release of Securities against payment therefor shall
be made on a date and at a place acceptable to the Company, the MHC, the Bank
and the Agent. Certificates for Securities shall be delivered directly to the
purchasers in accordance with their directions. The date upon which the Company
shall release or deliver the Securities sold in the Offering, in accordance with
the terms herein, is called the "Closing Date."
The Agent shall receive the following compensation for its services
hereunder:
(a) A Management Fee of $50,000 payable in five consecutive monthly
installments of $10,000 commencing with the adoption of the Plan, of which
$_________ has been paid. Such fees shall be deemed to have been earned when
due. Should the Conversion be terminated for any reason not attributable to any
action or inaction by the Agent, the Agent shall have earned and be entitled to
be paid fees accruing through such date of termination.
(b) A Success Fee upon completion of the Offering of 1.00% of the
aggregate purchase price of the Securities sold in the Subscription Offering and
Community Offering, excluding Securities purchased by the officers, directors or
employees (or members of their immediate families) of the Company, the MHC or
the Bank plus any ESOP, charitable foundations, tax-qualified or stock based
compensation plans (except for individual purchases through IRAs) or similar
plan created by the Bank, the MHC or the Company for some or all of its
employees or directors. The Success Fee described in this subparagraph 2(b) will
be reduced by the Management Fee described in subparagraph 2(a).
(c) If any of the Securities remain available after the Subscription
Offering and the Community Offering, at the request of the Company, the Agent
will seek to form a syndicate of registered broker-dealers ("Selected Dealers")
to assist in the sale of such Securities on a best efforts basis, subject to the
term and conditions set forth in the selected dealers agreement. The Agent will
endeavor to distribute the Securities among the Selected Dealers in a fashion
which best meets the distribution objectives of the Company, the MHC, the Bank
and the Plan. The Agent will be paid a fee not to exceed 5.5% of the aggregate
purchase price of the Securities sold by the Selected Dealers. From this fee,
the Agent will pass on to the Selected Dealers who assist in the Syndicated
Community Offering an amount competitive with gross underwriting discounts
charged at such time for comparable amounts of stock sold at a comparable price
per share in a similar market environment. Fees with respect to purchases
effected with the assistance of Selected Dealers other than the Agent shall be
transmitted by the Agent to such Selected Dealers. The decision to utilize
Selected Dealers will be made by the Company, the MHC and the Bank upon
consultation with the Agent. In the event, with respect to any stock purchases,
fees are paid
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pursuant to this subparagraph 2(c), such fees shall be in lieu of, and not in
addition to any fees for the sale of Securities payable pursuant to subparagraph
2(b).
(d) The Company, the MHC and the Bank shall reimburse the Agent for
reasonable out-of-pocket expenses, including costs of travel, meals and lodging,
photocopying, telephone, facsimile and couriers, which will not exceed $15,000.
In addition, the Company, the MHC and the Bank shall reimburse the Agent for the
fees and expenses of its counsel, which will not exceed $50,000. The Company,
the MHC and the Bank will bear the expenses of the Offering customarily borne by
issuers including, without limitation, regulatory filing fees, SEC, "Blue Sky,"
and NASD filing and registration fees; the fees of the Company's, the MHC's and
the Bank's accountants, attorneys, appraiser, transfer agent and registrar,
printing, mailing, marketing and syndicate expenses associated with Conversion;
the fees set forth under this Section 2; and fees for "Blue Sky" legal work. The
Company, the MHC and the Bank will reimburse the Agent for any such expenses
incurred by the Agent on their behalf.
Full payment of Agent's fees and expenses, as described above, shall be
made in next day funds on the earlier of the Closing Date or a determination by
the Company, the MHC or the Bank to terminate or abandon the Plan.
SECTION 3. PROPSECTUS; OFFERING. The Securities are to be initially
offered in the Offering at the purchase price set forth in the cover page of the
Prospectus.
SECTION 4. REPRESENTATIONS AND WARRANTIES.
(a) The MHC, the Company and the Bank jointly and severally represent
and warrant to and agree with the Agent as follows:
(i) The Registration Statement, which was prepared by the Company
and the Bank and filed with the SEC, was declared effective by the SEC on
_______________, no stop order has been issued with respect thereto and
no proceedings therefor have been initiated or, to the knowledge of the
MHC, the Company and the Bank, threatened by the SEC. At the time the
Registration Statement, including the Prospectus contained therein
(including any amendment or supplement), 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, including the Prospectus contained therein
(including any amendment or supplement thereto), and any information
regarding the Company, the MHC or the Bank contained in Sales Information
(as defined in Section 8 hereof) authorized by the Company, the MHC or
the Bank for use in connection with the Offering, 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) or (c) Prospectus is filed
with the SEC and at the Closing Date referred to in Section 2, the
Registration Statement, including the Prospectus contained therein
(including any amendment or supplement thereto), will comply as to form
in all material respects with the 1933 Act and the 1933 Act Regulations
and such Registration Statement and any information regarding the
Company, the MHC or the Bank contained in Sales Information authorized by
the Company, the MHC or the Bank for use in connection with
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the Offering will not contain an untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading; provided, however, that the representations and warranties in
this Section 4(a)(i) shall not apply to statements or omissions made in
reliance upon and in conformity with written information furnished to the
Company, the MHC or the Bank by the Agent or its counsel expressly
regarding the Agent for use in the Prospectus under the caption "The
Conversion-- Plan of Distribution and Marketing Arrangements" or
statements in or omissions from any Sales Information regarding the
Agent.
(ii) The Massachusetts Application, including the Corporators'
Statement, the Appraisal and the Propsectus, was prepared by the MHC and
filed with the Commissioner. The Commissioner has, by order dated
________, 2006, preliminarily approved the Massachusetts Application, and
such approval remains in full force and effect. The FDIC Application,
including the Corporators' Statement, the Appraisal and the Prospectus,
was prepared by the Bank and filed with the FDIC. The FDIC has, by order
dated _________, 2006, preliminarily approved the FDIC Merger
Application, and such approval remains in full force and effect. The
Prospectus and Corporators' Statement have been cleared by the
Commisioner. At the time of the preliminary approval of the Conversion
Applications, including the Prospectus and the Corporators' Statement
(including any amendment or supplement thereto), by the Commissioner and
the FDIC and at all times subsequent thereto until the Closing Date, the
Conversion Applications, including the Prospectus and the Corporators'
Statement (including any amendment or supplement thereto), will comply in
all material respects with the Conversion Regulations and the
requirements of the Comissioner, except to the extent waived in writing
by the Commissioner, as applicable. The Conversion Applications,
including the Prospectus and the Corporators' Statement (including any
amendment or supplement thereto), does not include any 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; provided,
however, that the representations and warranties in this Section 4(a)(ii)
shall not apply to statements or omissions made in reliance upon and in
conformity with written information furnished to the Company, the MHC or
the Bank by the Agent or its counsel expressly regarding the Agent for
use in the Prospectus contained in the Conversion Applications under the
caption "The Conversion - Plan of Distribution and Marketing
Arrangements" or in any Sales Information.
(iii) The BHC Application has been prepared by the Company in
material conformity with the requirements of the FRB and has been
preliminarily approved by the FRB. A conformed copy of the BHC
Application has been delivered to the Agent and its counsel, receipt of
which is hereby acknowledged by the Agent.
(iv) No order has been issued by the Commissioner, the FDIC, the
FRB, the SEC or any state securities administrator preventing or
suspending the use of the Prospectus or any supplemental sales literature
authorized by the Company, the MHC or the Bank for use in connection with
the Offering and no action by or before any such government entity to
revoke any approval, authorization or order of effectiveness related
6
to the Conversion is pending or, to the best knowledge of the Company,
the MHC, or the Bank, threatened.
(v) Pursuant to the Conversion Regulations, the Plan has been
approved by the Boards of Trustees of the MHC and the Board of Directors
of the Bank; at the Closing Date, the offer and sale of the Securities
will have been conducted in all material respects in accordance with the
Plan, the Conversion Regulations, and all other applicable laws,
regulations, decisions and orders, including all terms, conditions,
requirements and provisions precedent to the Offering imposed upon the
MHC or the Bank by the Commissioner, the FDIC, the FRB, the SEC or any
other regulatory authority, other than those which the regulatory
authority permits to be completed after the Conversion and in the manner
described in the Prospectus. No person has sought to obtain review of the
final action of the Commissioner or the FDIC in approving the Plan or in
approving the Conversion or the BHC Application pursuant to the BHC Act
or any other statute or regulation.
(vi) The Bank has been duly organized and is a validly existing
Massachusetts chartered savings bank in the stock form of organization in
good standing under the laws of the Commonwealth of Massachusetts, and
upon the Conversion will become a wholly-owned subsidiary of the Company,
in both instances duly authorized to conduct its business and own its
property as described in the Registration Statement and the Prospectus;
the Bank has obtained all licenses, permits and other governmental
authorizations currently required for the conduct of its business, except
those that individually or in the aggregate would not materially
adversely affect the financial condition, earnings, capital, assets,
properties or business of the Company, the MHC and the Bank, taken as a
whole; all such licenses, permits and governmental authorizations are in
full force and effect, and the Bank is in compliance in all material
respects with all material laws, rules, regulations and orders applicable
to the operation of its business. The Bank does not own equity securities
or any equity interest in any other active business enterprise except as
described in the Prospectus or as would not be material to the operations
of the Bank. Upon completion of the Conversion, (A) all of the authorized
and outstanding capital stock of the Bank will be owned by the Company
free and clear of any security interest, mortgage, pledge, loan,
encumbrance, claim or equity, (B) all outstanding shares of the Bank's
stock will be duly authorized, validly issued and fully paid and
nonassessable, and (C) the Company will have no direct subsidiaries other
than the Bank. At the Closing Date, 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
in compliance with the 1933 Act Regulations, the Conversion Regulations
or any order, all terms, conditions, requirements and provisions with
respect to the Conversion imposed by the Commissioner, the FDIC and the
FRB, if any, will have been complied with by the Company, the MHC and the
Bank in all material respects or appropriate waivers will have been
obtained and all material notices will have been satisfied.
(vii) The establishment of the Foundation has been duly authorized,
and the
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Foundation has been incorporated and is validly existing as a non-stock
corporation in good standing under the laws of the State of Delaware with
corporate power and authority to own, lease and operate its properties
and to conduct its business as described in the Prospectus; the
Foundation will not be a bank holding company within the meaning of 12
C.F.R. Section 225.2(c) as a result of the issuance of Common Shares to
it in accordance with the terms of the Plan and in the amounts as
described in the Prospectus; no approvals are required to establish the
Foundation and to contribute the Foundation Shares thereto as described
in the Prospectus other than those imposed by the Commissioner and the
FRB; except as specifically disclosed in the Prospectus, there are no
agreements and/or understandings, written or oral, between the Company
and/or the Bank and the Foundation with respect to the control, directly
or indirectly, over the voting and the acquisition or disposition of the
Foundation Shares; as of the Closing the Foundation Shares will have been
duly authorized for issuance and, when issued and contributed by the
Company pursuant to the Plan, will be duly and validly issued and fully
paid and nonassessable; and the issuance of the Foundation Shares is not
subject to preemptive or similar rights. The Foundation Shares have been
registered pursuant to the Registration Statement.
(viii) The MHC has been duly chartered and is validly existing as a
mutual holding company in good standing under the laws of the
Commonwealth of Massachusetts 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; the MHC has obtained
all licenses, permits and other governmental authorizations currently
required for the conduct of its business except those that individually
or in the aggregate would not materially adversely affect the financial
condition, earnings capital, assets, properties or business of the
Company, the MHC, and the Bank, taken as a whole; all such licenses,
permits and governmental authorizations are in full force and effect; the
MHC is in all material respects complying with all material laws, rules,
regulations and orders applicable to the operation of its business; and
upon consummation of the Conversion, the MHC will cease to exist. The MHC
does not own any equity securities or any equity interest in any business
enterprise except as described in the Prospectus. The MHC is not
authorized to issue any shares of capital stock.
(ix) The Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State of Delaware
with corporate power and authority to own, lease and operate its
properties and to conduct its business as described in the Registration
Statement and the Prospectus; the Company is qualified to do business as
a foreign corporation in each jurisdiction in which the conduct of its
business requires such qualification, except where the failure to so
qualify would not have a material adverse effect on the financial
condition, earnings, capital, assets, properties or business of the
Company. The Company has obtained all licenses, permits and other
governmental authorizations currently required for the conduct of its
business except those that individually or in the aggregate would not
materially adversely affect the financial condition, earnings, capital,
assets, properties or business of the Company, the MHC and the Bank,
taken as a whole; all such licenses, permits and governmental
authorizations are in full force and effect; and the Company is in all
material respects complying with all material laws, rules, regulations
and orders applicable to the operation
8
of its business.
(x) The Bank is a member of the Federal Home Loan Bank of Boston
("FHLB-Boston"). The deposit accounts of the Bank are insured by the FDIC
up to the applicable limits, and no proceedings for the termination or
revocation of such insurance are pending or, to the best knowledge of the
Company, the MHC or the Bank, threatened. Upon consummation of the
Conversion, the liquidation account for the benefit of Eligible Account
Holders and Supplemental Eligible Account Holders will be duly
established in accordance with the requirements of the Conversion
Regulations.
(xi) The only direct subsidiary of the MHC is the Bank. The only
direct subsidiaries of the Bank are Hampden Investment Corporation and
Hampden Insurance Agency (together, the "Bank Subsidiaries").
(xii) The Company, the MHC, the Bank and the Bank Subsidiaries have
good and marketable title to all real property and good title to all
other assets material to the business of the Company, the MHC, the Bank
and the Bank Subsidiaries, taken as a whole, and to those properties and
assets described in the Registration Statement and Prospectus as owned by
them, in each case free and clear of all liens, charges, encumbrances or
restrictions, except such as are described in the Registration Statement
and Prospectus, or are not material to the business of the Company, the
MHC, the Bank and the Bank Subsidiaries, taken as a whole; and all of the
leases and subleases material to the business of the Company, the MHC,
the Bank and the Bank Subsidiaries, taken as a whole, under which the
Company, the MHC, the Bank or the Bank Subsidiaries hold properties,
including those described in the Registration Statement and Prospectus,
are in full force and effect.
(xiii) The Company, the MHC and the Bank have received an opinion of
their special counsel, Mintz, Levin, Xxxxx, Xxxxxx and Xxxxx, P.C., with
respect to the federal income tax consequences of the Conversion and an
opinion from Wolf & Company, P.C. with respect to the Massachusetts
income tax consequences of the Conversion; all material aspects of the
opinions of Mintz, Levin, Xxxxx, Xxxxxx and Xxxxx, P.C. and Wolf &
Company, P.C. are accurately summarized in the Registration Statement and
Prospectus; the facts upon which such opinions are based are truthful,
accurate and complete.
(xiv) The Company, the MHC 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 Securities to be sold by the Company as
provided herein and as described in the Prospectus, except approvals
that, by their terms, will not be received until after the date of this
Agreement, and except for the confirmation by the Commissioner and the
FRB of the final appraisal of the Bank. The 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, the MHC and the Bank; and this Agreement has been validly
9
executed and delivered by the Company, the MHC and the Bank and is the
valid, legal and binding agreement of the Company, the MHC and the Bank
enforceable in accordance with its terms (except as the enforceability
thereof may be limited by bankruptcy, insolvency, moratorium,
reorganization or similar laws relating to or affecting the enforcement
of creditors' rights generally or the rights of creditors of bank holding
companies, the accounts of whose subsidiaries are insured by the FDIC, or
by general equity principles, regardless of whether such enforceability
is considered in a proceeding in equity or at law, and except to the
extent, if any, that the provisions of Sections 8 and 9 hereof may be
unenforceable as against public policy).
(xv) None of the Company, the MHC, the Bank or the Bank Subsidiaries
is in violation of any directive received from the Commissioner, the
FDIC, the FRB, the SEC, or any other agency to make any material change
in the method of conducting their 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 Commissioner, the FDIC, the FRB or the SEC) and, except as
set forth in the Registration Statement and the Prospectus, there is no
suit, proceeding, charge or action before or by any court, regulatory
authority or governmental agency or body, pending or, to the best
knowledge of the Company, the MHC 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 Registration Statement and the Prospectus or
which might result in any material adverse change in the financial
condition, earnings, capital, assets, properties or business of the
Company, the MHC, the Bank and the Bank Subsidiaries, taken as a whole.
(xvi) The financial statements, schedules and notes related thereto
that are included in the Prospectus fairly present the financial
condition, results of operations, equity and cash flows of the MHC and
the Bank at the respective dates indicated and for the respective periods
covered thereby and comply as to form in all material respects with the
applicable accounting requirements of Title 12 of the Code of Federal
Regulations, Regulation S-X of the SEC and accounting principles
generally accepted in the United States of America (including those
requiring the recording of certain assets at their current market value).
Such financial statements, schedules and notes related thereto have been
prepared in accordance with generally accepted accounting principles
consistently applied through the periods involved (except as noted in the
Notes to the financial statements), present fairly in all material
respects the information required to be stated therein and are consistent
with the most recent financial statements and other reports filed by the
MHC, the Bank and the Bank Subsidiaries with the Commissioner, the FDIC
and the SEC, and any other applicable regulatory authority, except that
accounting principles employed in such regulatory filings conform in all
material respects to the requirements of the Commissioner, the FDIC and
the SEC and not necessarily to GAAP. 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 and unaudited financial statements of the MHC, the Bank and
the Bank Subsidiaries included in the Prospectus, and as to the pro forma
adjustments, the adjustments made therein have been properly applied on
the basis described therein.
10
(xvii) Since the respective dates as of which information is given
in the Registration Statement including the Prospectus: (A) there has not
been any material adverse change in the financial condition, earnings,
capital, assets, properties or business of the Company, the MHC, the Bank
and the Bank Subsidiaries taken as a whole, whether or not arising in the
ordinary course of business; (B) there has not been any material increase
in the long-term debt of the Bank or in the principal amount of the
Bank's assets that are classified by the Bank as substandard, doubtful or
loss or in loans past due 90 days or more or real estate acquired by
foreclosure, by deed-in-lieu of foreclosure or deemed in-substance
foreclosure or any material decrease in equity capital or total assets of
the Bank, nor has the Company, the MHC, the Bank or the Bank Subsidiaries
issued any securities or incurred any liability or obligation for
borrowing other than, in each case, in the ordinary course of business;
(C) there have not been any material transactions entered into by the
Company, the MHC, the Bank of the Bank Subsidiaries; (D) there has not
been any material adverse change in the aggregate dollar amount of the
Bank's deposits or its consolidated net worth; (E) there has been no
material adverse change in the Company's, the MHC's, the Bank's or the
Bank Subsidiaries' relationship with its insurance carriers, including,
without limitation, cancellation or other termination of the Company's,
the MHC's, the Bank's or the Bank Subsidiaries' fidelity bond or any
other type of insurance coverage; (F) there has been no material change
in management of the Company, the MHC, the Bank or the Bank Subsidiaries;
(G) none of the Company, the MHC, the Bank or the Bank Subsidiaries has
sustained any material loss or interference with its respective business
or properties from fire, flood, windstorm, earthquake, accident or other
calamity, whether or not covered by insurance; (H) none of the Company,
the MHC, the Bank or the Bank Subsidiaries is in default in the payment
of principal or interest on any outstanding debt obligations; (I) the
capitalization, liabilities, assets, properties and business of the
Company, the MHC, the Bank and the Bank Subsidiaries conform in all
material respects to the descriptions thereof contained in the
Prospectus; and (J) none of the Company, the MHC, the Bank of the Bank
Subsidiaries has any material contingent liabilities, except as set forth
in the Prospectus.
(xviii) All documents made available to or delivered or to be made
available to or delivered by the Company, the MHC, the Bank, the Bank
Subsidiaries or their representatives in connection with the issuance and
sale of the Securities, including records of account holders, depositors
and borrowers of the Bank, or in connection with the Agent's exercise of
due diligence, except for those documents which were prepared by parties
other than the Company, the MHC, the Bank, the Bank Subsidiaries or their
representatives, to the best knowledge of the Company, the MHC and the
Bank, were on the dates on which they were delivered, or will be on the
dates on which they are to be delivered, true, complete and correct in
all material respects.
(xix) None of the Company, the MHC, the Bank or either of the Bank
Subsidiaries is (A) in violation of their respective articles of
incorporation, charters or bylaws, as applicable or (B) in default in the
performance or observance of any material obligation, agreement,
covenant, or condition contained in any material contract, lease,
11
loan agreement, indenture or other instrument to which it is a party or
by which it or any of its property may be bound. The execution and
delivery of this Agreement and the consummation of the transactions
herein contemplated will not: (A) conflict with or constitute a breach
of, or default under, or result in the creation of any material lien,
charge or encumbrance upon any of the assets of the Company, the MHC, the
Bank or the Bank Subsidiaries pursuant to their respective articles of
incorporation, charter or bylaws, as applicable, or any material
contract, lease or other instrument in which the Company, the MHC, the
Bank or either of the Bank Subsidiaries has a beneficial interest, or any
applicable law, rule, regulation or order; (B) violate any authorization,
approval, judgment, decree, order, statute, rule or regulation applicable
to the Company, the MHC, the Bank or the Bank Subsidiaries, except for
such violations which would not have a material adverse effect on the
financial condition and results of operations of the Company, the MHC,
the Bank and the Bank Subsidiaries on a consolidated basis; or (C) with
the exception of the liquidation account to be established in the
Conversion, result in the creation of any material lien, charge or
encumbrance upon any property of the Company, the MHC, the Bank or the
Bank Subsidiaries.
(xx) 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, the MHC, the Bank or the Bank Subsidiaries 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, the MHC, the
Bank or either of the Bank Subsidiaries is a party or by which any of
them or any of their property is bound or affected, except such defaults
which would not have a material adverse effect on the financial condition
or results of operations of the Company, the MHC, the Bank and the Bank
Subsidiaries on a consolidated basis; 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, the MHC and the Bank, threatened
any action or proceeding wherein the Company, the MHC, the Bank or either
of the Bank Subsidiaries is alleged to be in default thereunder, where
such action or proceeding, if determined adversely to the Company, the
MHC, the Bank or the Bank Subsidiaries, would have a material adverse
effect on the financial condition, earnings, capital, assets, properties
or business of the Company, the MHC, the Bank and the Bank Subsidiaries,
taken as a whole.
(xxi) Upon consummation of the Conversion, the authorized, issued
and outstanding equity capital of the Company will be within the range
set forth in the Prospectus under the captions "Capitalization" and "Pro
Forma Data," and no Securities have been or will be issued and
outstanding prior to the Closing Date; the Securities 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, fully paid and non-assessable, except for shares
purchased by the Tax Qualified Employee Stock Benefit Plan with funds
borrowed from the Company to the extent payment therefor in cash has not
been received by the Company; except to the extent that subscription
rights and priorities pursuant thereto exist pursuant to the Plan, no
preemptive rights exist with respect to the Securities; and the terms and
provisions of the Common Shares conform in
12
all material respects to the description thereof contained in the
Registration Statement and the Prospectus. Upon the issuance of the
Securities, good title to the Securities 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.
(xxii) No approval of any regulatory or supervisory or other public
authority is required in connection with the execution and delivery of
this Agreement or the issuance of the Securities, except for the approval
of the Commissioner, the FDIC, FRB and the SEC, and any necessary
qualification, notification, registration or exemption under the
securities or blue sky laws of the various states in which the Securities
are to be offered, and except as may be required under the rules and
regulations of the National Association of Securities Dealers, Inc.
("NASD") and/or the Nasdaq Stock Market.
(xxiii) Wolf & Company, P.C., which has certified the audited
financial statements and schedules of the MHC and the Bank included in
the Prospectus, has advised the MHC and the Bank in writing that they
are, with respect to the MHC and the Bank, independent public accountants
within the meaning of the Code of Professional Ethics of the American
Institute of Certified Public Accountants and applicable regulations of
the SEC, the Commissioner and the FDIC.
(xxiv) RP Financial, LC., which has prepared the Bank's Independent
Appraisal as of September 1, 2006, (as amended or supplemented, if so
amended or supplemented) (the "Appraisal"), has advised the Company in
writing that it is independent of the Company, the MHC and the Bank
within the meaning of the Conversion Regulations.
(xxv) The Company, the MHC, the Bank and the Bank Subsidiaries have
timely filed all required federal, state and local tax returns; the
Company, the MHC, the Bank and the Bank Subsidiaries have paid all taxes
that have become due and payable in respect of such returns, except where
permitted to be extended, have made adequate reserves for similar future
tax liabilities to the extent required by GAAP and no deficiency has been
asserted with respect thereto by any taxing authority.
(xxvi) The Bank is in compliance in all material respects with the
applicable financial record-keeping and reporting requirements of the
Currency and Foreign Transactions Reporting Act of 1970, as amended, and
the regulations and rules thereunder.
(xxvii) To the knowledge of the Company, the MHC and the Bank, with
the exception of the loan by the Company to the ESOP to purchase
securities in an amount up to 8.0% of the Securities sold in the
Conversion, none of the Company, the MHC, the Bank, the Bank
Subsidiaries, or employees of the Company, the MHC, the Bank or the Bank
Subsidiaries has made any payment of funds of the Company, the MHC, the
Bank or the Bank Subsidiaries as a loan for the purchase of the
Securities 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.
13
(xxviii) None of the Company, the MHC, the Bank or the Bank
Subsidiaries has: (A) issued any securities within the last 18 months
(except for (a) notes to evidence Bank loans and securities sold under
agreements to repurchase or other liabilities in the ordinary course of
business or as described in the Prospectus and (b) shares issued in
connection with the incorporation of the Company; (B) 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 proposed Offering and
routine purchases and sales of United States government and agency and
other securities in the ordinary course of business; (C) entered into a
financial or management consulting agreement except as contemplated
hereunder; and (D) engaged any intermediary between the Agent and the
Company, the MHC, the Bank and the Bank Subsidiaries in connection with
the offering of the Securities, and no person is being compensated in any
manner for such service. Appropriate arrangements have been made for
placing the funds received from subscriptions for Securities in a special
interest-bearing account with the Bank until all Securities are sold and
paid for, with provision for refund to the purchasers in the event that
the Conversion is not completed for whatever reason or for delivery to
the Company if all Securities are sold.
(xxix) The Company, the MHC, the Bank and the Bank Subsidiaries have
not relied upon the Agent or its legal counsel or other advisors to the
Agent for any legal, tax or accounting advice in connection with the
Conversion.
(xxx) The Company is not required to be registered under the
Investment Company Act of 1940, as amended.
(xxxi) Neither the Company, the MHC, the Bank nor the Bank
Subsidiaries nor any properties owned or operated by the MHC, the
Company, the Bank or the Bank Subsidiaries, is in violation of or liable
under any Environmental Law (as defined below), except for such
violations or liabilities that, individually or in the aggregate, would
not have a material adverse effect on the financial condition, results of
operations or business of the Company, the MHC, the Bank and the Bank
Subsidiaries, taken as a whole. There are no actions, suits or
proceedings, or demands, claims, notices or investigations (including,
without limitation, notices, demand letters or requests for information
from any environmental agency) instituted or pending or, to the knowledge
of the Company, the MHC, or the Bank, threatened relating to the
liability of any property owned or operated by the Company, the MHC, the
Bank or the Bank Subsidiaries under any Environmental Law. For purposes
of this subsection, the term "Environmental Law" means any federal,
state, local or foreign law, statute, ordinance, rule, regulation, code,
license, permit, authorization, approval, consent, order, judgment,
decree, injunction or agreement with any regulatory authority relating to
(A) the protection, preservation or restoration of the environment
(including, without limitation, air, water, vapor, surface water,
groundwater, drinking water supply, surface soil, subsurface soil, plant
and animal life or any other natural resource), and/or (B) the use,
storage, recycling, treatment, generation, transportation, processing,
handling, labeling, production, release or disposal of any substance
presently listed, defined, designated or classified as hazardous, toxic,
14
radioactive or dangerous, or otherwise regulated, whether by type or by
quantity, including any material containing any such substance as a
component.
(xxxii) The Company has received preliminary approval, subject to
final regulatory approval to consummate the Offering and to have the
Securities and the Foundation Shares quoted on the Nasdaq Global Market
effective as of the Closing Date.
(xxxiii) All of the loans represented as assets of the Bank 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 have a
material adverse effect on the financial condition, results of
operations, or business of the Company, the MHC, the Bank and the Bank
Subsidiaries, taken as a whole.
(xxxiv) Any certificates signed by an officer of the Company, the
MHC, the Bank or the Bank Subsidiaries pursuant to the conditions of this
Agreement and delivered to the Agent or their counsel that refers to this
Agreement shall be deemed to be a representation and warranty by the
Company, the MHC, the Bank or the Bank Subsidiaries to the Agent as to
the matters covered thereby with the same effect as if such
representation and warranty were set forth herein.
(b) The Agent represents and warrants to the Company as follows:
(i) The Agent is a corporation and is validly existing in good
standing under the laws of the State of New York with full power and
authority to provide the services to be furnished to the MHC, the Company
and the Bank hereunder.
(ii) The Agent is duly registered and in good standing as a
broker-dealer with the SEC and is a member in good standing of the NASD.
(iii) 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 a legal, valid and binding agreement of the Agent,
enforceable in accordance with its terms (except as the enforceability
thereof may be limited by bankruptcy, insolvency, moratorium,
reorganization or similar laws relating to or affecting the enforcement
of creditors' rights generally, or by general equity principles,
regardless of whether such enforceability is considered in a proceeding
in equity or at law, and except to the extent, if any, that the
provisions of Sections 8 and 9 hereof may be unenforceable as against
public policy).
(iv) Each of the Agent and its employees, agents and representatives
who shall perform any of the services hereunder shall be duly authorized
and empowered, and shall have all licenses, approvals and permits
necessary to perform such services; and the Agent is a registered selling
agent in each of the jurisdictions in which the Securities are
15
to be offered by the Company in reliance upon the Agent as a registered
selling agent as set forth in the blue sky memorandum prepared with
respect to the Offering.
(v) The execution and delivery of this Agreement by the Agent, the
consummation of the transactions contemplated hereby and compliance with
the terms and provisions hereof will not conflict with, or result in a
breach of, any of the terms, provisions or conditions of, or constitute a
default (or an event which with notice or lapse of time or both would
constitute a default) under, the Certificate of Incorporation or Bylaws
of the Agent or any agreement, indenture or other instrument to which the
Agent is a party or by which it or its property is bound.
(vi) No approval of any regulatory or supervisory or other public
authority is required in connection with the Agent's execution and
delivery of this Agreement, except as may have been received.
(vii) There is no suit or proceeding or charge or action before or
by any court, regulatory authority or government agency or body or, to
the knowledge of the Agent, pending or threatened, which might materially
adversely affect the Agent's performance under this Agreement.
SECTION 5. COVENANTS OF THE COMPANY, THE MHC AND THE BANK. The Company,
the MHC and the Bank hereby jointly and severally covenant with the Agent as
follows:
(a) The Company will not file any amendment or supplement to the
Registration Statement without providing the Agent and its counsel an
opportunity to review such amendment or supplement or file any amendment or
supplement to which amendment or supplement the Agent or its counsel shall
reasonably object.
(b) The MHC and the Bank will not file any amendment or supplement to the
Massachusetts Application or the FDIC Merger Application without providing the
Agent and its counsel an opportunity to review such amendment or supplement or
file any amendment or supplement to which amendment or supplement the Agent or
its counsel shall reasonably object.
(c) The Company will not file any amendment or supplement to the BHC
Application without providing the Agent and its counsel an opportunity to review
such amendment or supplement or file any amendment or supplement to which
amendment or supplement the Agent or its counsel shall reasonably object.
(d) The MHC, the Company and the Bank will use their best efforts to
cause any post-effective amendment to the Registration Statement to be declared
effective by the SEC and any post-effective amendment to the Applications to be
approved by the Commissioner or the FDIC, as applicable, and will immediately
upon receipt of any information concerning the events listed below notify the
Agent: (i) when the Registration Statement, as amended, has become effective;
(ii) when the Massachusetts Application, as amended, has been approved by the
Commissioner; (iii) when the FDIC Merger Application, as amended, has been
approved by the FDIC; (iv) when the BHC Application, as amended, has been
approved by the FRB, (v) when the the Company, the MHC or the Bank receives any
comments from the SEC, the Comissioner, the FDIC, the FRB or any other
governmental entity with respect to the Conversion or the
16
transactions contemplated by this Agreement; (vi) when the Commissioner, the
FDIC, the FRB, the SEC or any other governmental entity requessts any amendment
or supplement to the Registration Statement, any of the Applications or for
additional information; (vii) the issuance by the Commissioner, the FDIC, the
FRB, the SEC or any other governmental entity of any order or other action
suspending the Offering or the use of the Registration Statement or the
Prospectus or any other filing of the Company, the MHC or the Bank under the
Conversion Regulations, the BHC Act, the 1933 Act, the 1933 Act Regulations, or
other applicable law, or the threat of any such action; (viii) the issuance by
the SEC, the Commissioner, the FDIC, the FRB or any authority of any stop order
suspending the effectiveness of the Registration Statement or of the initiation
or threat of initiation or threat of any proceedings for that purpose; or (ix)
the occurrence of any event mentioned in paragraph (h) below. The Company, the
MHC and the Bank will make every reasonable effort (x) to prevent the issuance
by the SEC, the Commissioner, the FDIC, the FRB or any other regulatory
authority of any such order and, (y) if any such order shall at any time be
issued, to obtain the lifting thereof at the earliest possible time.
(e) The Company, the MHC and the Bank will deliver to the Agent and to
its counsel two conformed copies of the Registration Statement, the
Massachusetts Application, the FDIC Merger Application, and the BHC Application,
as originally filed and of each amendment or supplement thereto, including all
exhibits.
(f) The Company, the MHC and the Bank will furnish to the Agent, from
time to time during the period when the Prospectus (or any later prospectus
related to this offering) is required to be delivered under the 1933 Act or the
Securities and Exchange Act of 1934, as amended (the "1934 Act"), such number of
copies of such Prospectus (as amended or supplemented) as the Agent may
reasonably request for the purposes contemplated by the 1933 Act, the 1933 Act
Regulations, the 1934 Act or the rules and regulations promulgated under the
1934 Act (the "1934 Act Regulations"). The Company authorizes the Agent to use
the Prospectus (as amended or supplemented, if amended or supplemented) in any
lawful manner contemplated by the Plan in connection with the sale of the
Securities by the Agent.
(g) The Company, the MHC and the Bank will comply with any and all
material terms, conditions, requirements and provisions with respect to the
Conversion (including the formation and operation of the Foundation) and the
transactions contemplated thereby imposed by the SEC, the Commisioner, the FDIC,
the FRB, or by the Conversion Regulations, or by the 1933 Act, the 1933 Act
Regulations, the 1934 Act and the 1934 Act Regulations to be complied with prior
to or subsequent to the Closing Date and when the Prospectus is required to be
delivered, and during such time period, the Company, the MHC and the Bank will
comply, at their own expense, with all material requirements imposed upon them
by the SEC, the Commissioner, the FDIC, the FRB, by the Conversion Regulations,
and by the 1933 Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act
Regulations, including, without limitation, Rule 10b-5 under the 1934 Act, in
each case as from time to time in force, so far as necessary to permit the
continuance of sales or dealing in the Common Shares during such period in
accordance with the provisions hereof and the Prospectus.
(h) If, at any time during the period when the Prospectus is required to
be delivered, any event relating to or affecting the Company, the MHC, the Bank
or the Bank Subsidiaries
17
shall occur, as a result of which it is necessary or appropriate, in the opinion
of counsel for the Company, the MHC and the Bank or in the reasonable opinion of
the Agent's counsel, to amend or supplement the Registration Statement or
Prospectus in order to make the Registration Statement or Prospectus not
misleading in light of the circumstances existing at the time the Prospectus is
delivered to a purchaser, the Company, the MHC and the Bank will prepare and
file, at their own expense, with the SEC, the Commissioner and the FDIC, and
furnish to the Agent 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 reasonably satisfactory to the Agent and its
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 an 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. For the purpose of this Agreement, the Company, the MHC and the
Bank each will timely furnish to the Agent such information with respect to
itself as the Agent may from time to time reasonably request.
(i) The Company, the MHC and the Bank will take all necessary actions in
cooperating with the Agent and furnish to whomever the Agent may direct such
information as may be required to qualify or register the Securities for
offering and sale by the Company or to exempt such Securities from registration,
or to exempt the Company as a broker-dealer and its officers, directors and
employees as broker-dealers or agents under the applicable securities or blue
sky laws of such jurisdictions in which the Securities are required under the
Conversion Regulations to be sold or as the Agent and the Company, the MHC and
the Bank may reasonably agree upon; provided, however, that the Company shall
not be obligated to file any general consent to service of process, to qualify
to do business in any jurisdiction in which it is not so qualified, or to
register its directors or officers as brokers, dealers, salesmen or agents in
any jurisdiction. In each jurisdiction where any of the Securities shall have
been qualified or registered as above provided, the Company will make and file
such statements and reports in each fiscal period as are or may be required by
the laws of such jurisdiction.
(j) At the consummation of the Conversion, the Bank shall duly establish
and maintain the liquidation account for the benefit of Eligible Account Holders
and Supplemental Eligible Account Holders in accordance with the requirements of
the Conversion Regulations and such Eligible Account Holders and Supplemental
Eligible Account Holders who continue to maintain their savings accounts in the
Bank will have an inchoate interest in their pro rata portion of the liquidation
account, which shall have a priority superior to that of the holders of the
Common Shares in the event of a complete liquidation of the Bank.
(k) The Company and the Bank will not sell or issue, contract to sell or
otherwise dispose of, for a period of 90 days after the Closing Date, without
the Agent's prior written consent, any of their capital stock, other than in
connection with any plan or arrangement described in the Prospectus.
(l) The Company and the Bank will comply with the conditions imposed by
or agreed to with the Commissioner, the FDIC or the FRB in connection with their
approval or non-objection of, or non-objection to those conditions relating to
the establishment and the operation of the Foundation; the Company and the Bank
shall use their best efforts to ensure that the
18
Foundation submits within the time frames required by applicable law a request
to the Internal Revenue Service to be recognized as a tax-exempt organization
under Section 501(c)(3) of the Code; the Company and the Bank will take no
action which will result in the possible loss of the Foundation's tax exempt
status; and neither the Company nor the Bank will contribute any additional
assets to the Foundation until such time that such additional contributions will
be deductible for federal and state income tax purposes.
(m) The Company will register the Securities and Foundation Shares under
Section 12(b) of the 1934 Act during the Offering and shall request that such
registration be effective prior to the completion of the Conversion. The Company
shall maintain the effectiveness of such registration for not less than three
years or such shorter period as may be required by applicable law.
(n) During the period during which the Common Shares are registered under
the 1934 Act or for three years from the date hereof, whichever period is
greater, the Company will furnish to its shareholders as soon as practicable
after the end of each fiscal year an annual report of the Company in accordance
with the 1934 Act Regulations (including a consolidated balance sheet and
statements of consolidated income, shareholders' equity and cash flows 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 and the 1934 Act).
(o) During the period of three years from the date hereof, the Company
will furnish to the Agent: (i) as soon as practicable after such information is
publicly available, a copy of each report of the Company furnished to or filed
with the SEC 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-K, 10-Q and 8-K and all proxy statements and
annual reports to stockholders), provided, howerver, that for purposes of this
requirement, documents filed electronically on the SEC's Electronic Data
Gathering, Analysis and Retrieval (XXXXX) System shall be deemed to be delivered
to the Agent upon filing with the SEC, (ii) a copy of each other
non-confidential report of the Company mailed to its shareholders or filed with
the Commissioner or the FDIC or any other supervisory or regulatory authority 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
additional documents and information with respect to the Company or the Bank as
the Agent may reasonably request; and (iii) from time to time, such other
non-confidential information concerning the Company or the Bank as the Agent may
reasonably request.
(p) The Company and the Bank will use the net proceeds from the sale of
the Securities in the manner set forth in the Prospectus under the caption "Use
of Proceeds."
(q) Other than as permitted by the Conversion Regulations, the BHC Act,
the 1933 Act, the 1933 Act Regulations and the rules and regulations and the
laws of any state in which the Securities are registered or qualified for sale
or exempt from registration, none of the Company, the MHC or the Bank will
distribute any prospectus, offering circular or other offering material in
connection with the offer and sale of the Securities.
19
(r) The Company will use its best efforts to cooperate with the Agent to
effect the trading of the Securities on the Nasdaq Global Market on or prior to
the Closing Date.
(s) The Bank will maintain appropriate arrangements for depositing all
funds received from persons mailing subscriptions for or orders to purchase
Securities in the 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 Securities in the Offering in
accordance with the Plan and as described in the Prospectus or until refunds of
such funds have been made to the persons entitled thereto or withdrawal
authorizations canceled 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 FDIC (to the
maximum extent allowable) and to enable the Bank to make the 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.
(t) The Company, the MHC and the Bank will take such actions and furnish
such information as are reasonably requested by the Agent in order for the Agent
to ensure compliance with NASD's "Interpretation Relating to Free Riding and
Withholding."
(u) None of the Company, the MHC or the Bank will amend the Plan without
notifying the Agent and the Agent's counsel prior thereto.
(v) The Company shall assist the Agent, if necessary, in connection with
the allocation of the Securities in the event of an oversubscription and shall
provide the Agent with any information necessary to assist the Company in
allocating the Securities in such event, and such information shall be accurate
and reliable in all material respects.
(w) Prior to the Closing Date, the Company, the MHC and the Bank will
inform the Agent of any event or circumstances of which it is aware as a result
of which the Registration Statement and/or Prospectus, as then amended or
supplemented, would contain an untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements therein not
misleading.
(x) Subsequent to the date the Registration Statement is declared
effective by the SEC and prior to the Closing Date, except as otherwise may be
indicated or contemplated therein or set forth in an amendment or supplement
thereto, none of the Company, the MHC or the Bank will have: (i) 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, or (ii) entered into any
transaction which is material in light of the business and properties of the
Company, the MHC and the Bank, taken as a whole.
(y) Until the Closing Date, the MHC, the Company and the Bank will
conduct their businesses in compliance in all material respects with all
applicable federal and state laws, rules, regulations, decisions, directives and
orders, including all decisions, directives and orders of the SEC, the
Commissioner, the FDIC and the FRB.
20
(z) The facts and representations provided to Mintz, Levin, Xxxxx, Xxxxxx
and Popeo, P.C. by the Company and the Bank and upon which Mintz, Levin, Xxxxx,
Xxxxxx and Xxxxx, P.C. will base its opinion under Section 7(c)(1) are and will
be truthful, accurate and complete.
(aa) The Company agrees that, unless it obtains the prior consent of
the Agent, it has not made and will not make any offer relating to the
Securities that would constitute an "issuer free writing prospectus," as
defined in Rule 433 of the 1933 Act Regulations, or that would constitute a
"free writing prospectus," as defined in Rule 405 of the 1933 Act
Regulations, required to be filed with the SEC. The Company need not treat
any communication as a free writing prospectus if it is exempt from the
definition of prospectus pursuant to clause (a) of Section 2(a)(10) of the
1933 Act without regard to Rule 172 or 173 of the 1933 Act Regulations.
SECTION 6. PAYMENT OF EXPENSES. Whether or not the Conversion is
completed or the sale of the Securities by the Company is consummated, the
Company and the Bank jointly and severally agree to pay or reimburse the Agent
for: (a) all filing fees in connection with all filings related to the Offering
with the NASD; (b) any stock issue or transfer taxes which may be payable with
respect to the sale of the Securities; (c) all reasonable expenses of the
Conversion, including but not limited to the Company's, the MHC's and the Bank's
and the Agent's attorneys' fees and expenses (subject to Section 2 of this
Agreement), blue sky fees, transfer agent, registrar and other agent charges,
fees relating to auditing and accounting or other advisors and costs of printing
all documents necessary in connection with the Conversion. In the event the
Company is unable to sell a minimum of 4,866,250 Common Shares or the Offering
is terminated or otherwise abandoned, the MHC, the Company and the Bank shall
promptly reimburse the Agent in accordance with Section 2(d) hereof.
The Company, the MHC and the Bank acknowledge, however, that such
limitations may be increased by the mutual consent of the MHC, the Bank and the
Agent in the event of delay in the Offering requiring the Agent to utilize a
Syndicated Community Offering, a delay as a result of circumstances requiring
material additional work by Agent or its counsel or an update of the financial
information in tabular form contained in the Prospectus for a period later than
September 30, 2006. In the event the MHC or the Bank determines to abandon or
terminate the Plan prior to Closing, payment of such expenses shall be made in
next day funds on the date such determination is made.
SECTION 7. CONDITIONS TO THE AGENT'S OBLIGATIONS. The obligations of the
Agent hereunder are subject, to the extent not waived in writing by the Agent,
to the condition that all representations and warranties of the Company, the MHC
and the Bank herein are, at and as of the commencement of the Offering and at
and as of the Closing Date, true and correct in all material respects, the
condition that the Company, the MHC and the Bank shall have performed all of
their obligations hereunder to be performed on or before such dates, and to the
following further conditions:
(a) At the Closing Date, the Company, the MHC and the Bank shall have
conducted the Conversion in all material respects in accordance with the Plan,
the Conversion Regulations and all other applicable laws, regulations, decisions
and orders, including all terms, conditions, requirements and provisions
precedent to the Conversion imposed upon them by the Commissioner, the FDIC, the
FRB, the SEC or any other governmental authority.
(b) The Registration Statement shall have been declared effective by the
SEC and the Conversion Applications approved by the Commissioner and the FDIC
not later than 5:30 p.m. on the date of this Agreement, or with the Agent's
consent at a later time and date; and at the Closing Date, no stop order
suspending the effectiveness of the Registration Statement shall have been
issued under the 1933 Act or proceedings therefor initiated or threatened by the
SEC or any state authority, and no order or other action suspending the
authorization of the Prospectus or the consummation of the Conversion shall have
been issued or proceedings therefor initiated or, to
21
the Company's, the MHC's or the Bank's knowledge, threatened by the SEC, the
Commissioner, the FDIC, the FRB or any other governmental authority.
(c) At the Closing Date, the Agent shall have received the favorable
opinion, dated as of the Closing Date and addressed to the Agent and for its
benefit, of Mintz, Levin, Xxxxx, Xxxxxx and Popeo, P.C., special counsel for the
MHC, the Company and the Bank, in the form attached hereto as EXHIBIT A.
In giving such opinion, such counsel may rely as to all matters of fact
on certificates of officers or directors of the Company, the MHC and the Bank
and certificates of public officials. Such counsel's opinion shall be limited to
matters governed by federal laws, by the Delaware General Corporation Law and by
the laws of the State of Massachusetts. The term "Actual Knowledge" as used
herein shall have the meaning set forth in the Legal Opinion Accord of the
American Bar Association Section of Business Law. For purposes of such opinion,
no proceedings shall be deemed to be pending, no order or stop order shall be
deemed to be issued, and no action shall be deemed to be instituted unless, in
each case, a director or executive officer of either of the Company, the MHC, or
the Bank shall have received a copy of such proceedings, order, stop order or
action. In addition, such opinion may be limited to present statutes,
regulations and judicial interpretations and to facts as they presently exist;
in rendering such opinion, such counsel need assume no obligation to revise or
supplement it should the present laws be changed by legislative or regulatory
action, judicial decision or otherwise; and such counsel need express no view,
opinion or belief with respect to whether any proposed or pending legislation,
if enacted, or any proposed or pending regulations or policy statements issued
by any regulatory agency, whether or not promulgated pursuant to any such
legislation, would affect the validity of the Conversion or any aspect thereof.
Such counsel may assume that any agreement is the valid and binding obligation
of any parties to such agreement other than each of the Company, the MHC or the
Bank.
In addition, such counsel shall state in a separate letter that during
the preparation of the Applications, the Registration Statement, the Prospectus
and the Corporators' Statement, they participated in conferences with certain
officers of, the independent public and internal accountants for, and other
representatives of, the Company, the MHC and the Bank, at which conferences the
contents of the Applications, the Registration Statement, the Prospectus, the
Corporators' Statement, and related matters were discussed and, while such
counsel have not confirmed the accuracy or completeness of or otherwise verified
the factual information contained in the Applications, the Registration
Statement, the Prospectus, or the Corporators' Statement, and do not assume any
responsibility for such information, based upon such conferences and a review of
documents deemed relevant for the purpose of rendering their opinion (relying as
to materiality as to factual matters on certificates of officers and other
factual representations by the Company, the MHC and the Bank), nothing has come
to their attention that would lead them to believe that: (i) the Registration
Statement, or any amendment or supplement thereto (other than the financial
statements, the notes thereto, and other tabular, financial, statistical and
appraisal data included therein as to which no view need be rendered) contain an
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein, not misleading;
or (ii) the Applications, the Prospectus or the Corporators' Statement, or any
amendment or supplement thereto (other than the financial statements, the notes
thereto, and other tabular, financial,
22
statistical and appraisal data included therein as to which no view need be
rendered) includes an untrue statement of material fact or omits to state a
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading.
(d) A Blue Sky Memorandum from Mintz, Levin, Cohn, Ferris, Glovsky and
Popeo, P.C. relating to the Offering, including the Agent's participation
therein, should be furnished to the Agent with a copy thereof addressed to
Agent or upon which Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. shall
state Agent may rely. The Blue Sky Memorandum will relate to the necessity of
obtaining or confirming exemptions, qualifications or the registration of the
Securities under applicable state securities law.
(e) At the Closing Date, the Agent shall receive a certificate of the
Chief Executive Officer and the principal accounting officer of each of the
Company, the MHC and the Bank in form and substance reasonably satisfactory
to the Agent's counsel, dated as of such Closing Date, to the effect that:
(i) the Commissioner has approved the Massachusetts Application, and such
approval remains in full force and effect; (ii) the FDIC has approved the
FDIC Merger Application, and such approval remains in full force and effect;
(iii) the FRB has approved the BHC Application, and such approval remains in
full force and effect; (iv) they have carefully reviewed the Prospectus and
the Corporators' Statement, and, in their opinion, at the time the Prospectus
and the Corporators Statement became cleared and/or declared effective the
Prospectus and the Corporators' Statement did 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 under
which they were made, not misleading; (v) since the date the Prospectus was
declared effective, no event has occurred which should have been set forth in
an amendment or supplement to the Prospectus which has not been so set forth,
including specifically, but without limitation, any material adverse change
in the condition, financial or otherwise, or in the earnings, capital,
properties or business of the Company, the MHC or the Bank; (vi) 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 condition, financial or otherwise, or in the earnings, capital or
properties of the Company, the MHC or the Bank independently, or of the
Company, the MHC and the Bank considered as one enterprise, whether or not
arising in the ordinary course of business; (vii) the representations and
warranties in Section 4(a) are true and correct with the same force and
effect as though expressly made at and as of the Closing Date; (viii) the
Company, the MHC and the Bank have complied in all material respects 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 in all material
respects with all obligations to be satisfied by them after the Conversion;
(ix) no stop order suspending the effectiveness of the Registration Statement
has been initiated or, to the best knowledge of the Company the MHC or the
Bank, threatened by the SEC; (x) no order suspending the Offering, the
Conversion, the acquisition of all of the outstanding capital stock of the
Bank by the Company or the effectiveness of the Prospectus has been issued
and no proceedings for that purpose are pending or, to the best knowledge of
the Company, the Company, the MHC or the Bank, threatened by the SEC or any
governmental authority; and (xi) to the best knowledge of the Company, the
MHC and the Bank, no person has sought to obtain review of the final action
of the Commissioner or the FDIC approving the Plan.
(f) Prior to and at the Closing Date: (i) in the reasonable opinion of
the Agent, there shall have been no material adverse change in the condition,
financial or otherwise, or in the earnings or business of the Company, the MHC
or the Bank independently, or of the Company, the MHC and the Bank considered as
one enterprise, from that as of the latest dates as of which such condition is
set forth in the Prospectus, other than transactions referred to or contemplated
therein; (ii) the Company, the MHC or the Bank shall not have received from the
Commissioner or the FDIC 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 business, operations or financial
condition or income of the Company, the MHC and the Bank taken as a
23
whole; (iii) none of the Company, the MHC or 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 of any agreement or instrument
relating to any outstanding indebtedness; (iv) no action, suit or proceeding, 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, the
MHC or the Bank, threatened against the Company, the MHC or the Bank or
affecting any of their properties wherein an unfavorable decision, ruling or
finding would materially and adversely affect the business, operations,
financial condition or income of the Company, the MHC and the Bank taken as a
whole; and (v) the Securities shall have been qualified or registered for
offering and sale or exempted therefrom under the securities or blue sky laws of
the jurisdictions as the Agent shall have reasonably requested and as agreed to
by the Company, the MHC and the Bank.
(g) Concurrently with the execution of this Agreement, the Agent shall
receive a letter from Wolf & Company, P.C. dated as of the date of the
Prospectus and addressed to the Agent: (i) confirming that Wolf & Company, P.C.
is a firm of independent public accountants within the meaning of Rule 101 of
the Code of Professional Ethics of the American Institute of Certified Public
Accountants and applicable regulations of the SEC and stating in effect that in
their opinion the consolidated financial statements, schedules and related notes
of the MHC and the Bank as of June 30, 2006 and 2005, and for each of the three
years in the period ended June 30, 2006, included in the Prospectus and covered
by their opinion included therein, comply as to form in all material respects
with the applicable accounting requirements and related published rules and
regulations of the 1933 Act; (ii) stating in effect that, on the basis of
certain agreed upon procedures (but not an audit in accordance with generally
accepted auditing standards) consisting of a reading of the latest available
unaudited interim financial statements of the MHC and the Bank prepared by the
MHC and the Bank, a reading of the minutes of the meetings of the Boards of
Trustees of the MHC and the Board of Directors of the Bank and consultations
with officers of the MHC and the Bank responsible for financial and accounting
matters, nothing came to their attention which caused them to believe that: (A)
the unaudited financial statements included in the Prospectus and any financial
information presented in the Prospectus as "Recent Developments" are not in
conformity with the 1933 Act, and generally accepted accounting principles
applied on a basis substantially consistent with that of the audited financial
statements included in the Prospectus; or (B) during the period from the date of
the latest unaudited financial statements included in the Prospectus to a
specified date not more than three business days prior to the date of the
Prospectus, except as has been described in the Prospectus, there was any
increase in liabilities, other than normal deposit fluctuations the Bank; or (C)
there was any decrease in the net assets or retained earnings of the MHC and the
Bank at the date of such letter as compared with amounts shown in the latest
unaudited balance sheets included in the Prospectus or there was any decrease in
net income or net interest income of the MHC and 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 as compared to the corresponding period in
the preceding year; and (iii) stating that, in addition to the audit referred to
in their opinion included in the Prospectus and the performance of the
procedures referred to in clause (ii) of this subsection (f), they have compared
with the general accounting records of the MHC and the Bank, which are subject
to the internal controls of the MHC and the Bank, the accounting system and
other data
24
prepared by the MHC and the Bank, directly from such accounting records, to the
extent specified in such letter, such amounts, percentages and/or financial
information set forth in the Prospectus as the Agent may reasonably request, and
they have found such amounts, percentages and financial information to be in
agreement therewith.
(h) At the Closing Date, the Agent shall receive a letter dated the
Closing Date, addressed to the Agent, confirming the statements made by Wolf &
Company, P.C. in the letter delivered by it pursuant to subsection (g) of this
Section 7, the "specified date" referred to in clause (ii) of subsection (g) to
be a date specified in the letter required by this subsection (h) which for
purposes of such letter shall not be more than three business days prior to the
Closing Date.
(i) At the Closing Date, the Agent shall receive a letter from RP
Financial, LC., dated the Closing Date and addressed to the Agent (i) confirming
that said firm is independent of the Company, the MHC and the Bank and is
experienced and expert in the area of corporate appraisals within the meaning of
the Conversion Regulations, (ii) stating in effect that the Appraisal prepared
by such firm complies in all material respects with the applicable requirements
of the Conversion Regulations, and (iii) further stating that its opinion of the
aggregate pro forma market value of the Company, the MHC and the Bank expressed
in its Appraisal, as most recently updated, remains in effect.
(j) The Company, the MHC and the Bank shall not have sustained since the
date of the latest financial statements included in the Prospectus any material
loss or interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor dispute or
court or governmental action, order or decree, otherwise than as set forth or
contemplated in the Registration Statement and Prospectus and since the
respective dates as of which information is given in the Registration Statement
and Prospectus, there shall not have been any change in the long-term debt of
the Company, the MHC or the Bank other than debt incurred in relation to the
purchase of Securities by the Bank's eligible plans, or any change, or any
development involving a prospective change, in or affecting the general affairs,
management, financial position, shareholders' equity or results of operations of
the Company, the MHC or the Bank, otherwise than as set forth or contemplated in
the Registration Statement and Prospectus, the effect of which, in any such case
described above, is in the Agent's reasonable judgment sufficiently material and
adverse as to make it impracticable or inadvisable to proceed with the Offering
or the delivery of the Securities on the terms and in the manner contemplated in
the Prospectus.
(k) At or prior to the Closing Date, the Agent shall receive: (i) a copy
of the letters from the Commissioner approving the Massachusetts Application and
from the FDIC approving the FDIC Merger Application, and, in the case of the
Commissioner, clearing for use the Prospectus; (ii) a copy of the order from the
SEC declaring the Registration Statement effective, if available; (iii) a
certificate of good standing from the Secretary of the State of Delaware
evidencing the good standing of the Company; (iv) a certificate of corporate
existence from the Secretary of the Commonwealth of Massachusetts evidencing the
corporate existence of the MHC and the Bank; (v) a certificate from the FDIC
evidencing the Bank's insurance of accounts; (vi) a certificate from the
FHLB-Boston evidencing the Bank's membership in good standing
25
therein; (vii) a copy of the letter from the FRB approving the BHC Application;
(viii) a certified copy of the Company's Certificate of Incorporation and Bylaws
and the MHC's and the Bank's Charter and Bylaws and (ix) any other documents
that the Agent shall reasonably request.
(l) At or prior to the Closing Date, the Securities shall have been
approved for listing on the Nasdaq Global Market upon notice of issuance.
(m) Subsequent to the date hereof, there shall not have occurred any of
the following: (i) a suspension or limitation (other than a temporary suspension
or limitation lasting for less than a single trading day) in trading in
securities generally on the New York Stock Exchange, 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 SEC or any other governmental
authority; (ii) a general moratorium on the operations of commercial banks, or
federal savings institutions or a general moratorium on the withdrawal of
deposits from commercial banks or federal savings institutions declared by
federal or state authorities; (iii) the engagement by the United States in
hostilities which have resulted in the declaration by the U. S. Congress, 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
declaration or decline, in the Agent's reasonable judgment, makes it
impracticable or inadvisable to proceed with the Offering or the delivery of the
Securities on the terms and in the manner contemplated in the Registration
Statement and the Prospectus.
(n) At or prior to the Closing Date, counsel to the Agent 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 Securities as herein
contemplated and related proceedings or in order to evidence the occurrence 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, the MHC or the Bank in connection with the Conversion and the sale of
the Securities as herein contemplated shall be satisfactory in form and
substance in the reasonable judgment of the Agent and its counsel.
SECTION 8. INDEMNIFICATION.
(a) The Company, the MHC and the Bank jointly and severally agree to
indemnify and hold harmless the Agent, its officers and directors, employees and
agents, and each person, if any, who controls the Agent 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), joint or several, that the Agent or any of them may
suffer or to which the Agent and any such persons may become subject under all
applicable federal or 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 to defend 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
related to the Conversion or any action taken by the Agent where acting as agent
of the Company, the MHC
26
and the Bank; (ii) arise out of or are based upon any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement (or any amendment or supplement thereto), the preliminary or final
Prospectus (or any amendment or supplement thereto), the Conversion Applications
(or any amendment or supplement thereto), the BHC Application (or any amendment
or supplement thereto), or any instrument or document executed by the Company,
the MHC or the Bank or based upon written information supplied by the Company,
the MHC or the Bank filed in any state or jurisdiction to register or qualify
any or all of the Securities or to claim an exemption therefrom or provided to
any state or jurisdiction to exempt the Company as a broker-dealer or its
officers, directors and employees as broker dealers or agent, under the
securities laws thereof (collectively, the "Blue Sky Application"), or any
document, advertisement, oral statement or communication ("Sales Information")
prepared, made or executed by or on behalf of the Company, the MHC or the Bank
with their consent or based upon written or oral information furnished by or on
behalf of the Company, the MHC or the Bank, in order to qualify or register the
Securities or to claim an exemption therefrom under the securities laws thereof;
(iii) 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 therein, in light of the
circumstances under which they were made, not misleading; or (iv) arise from any
theory of liability whatsoever relating to or arising from or based upon the
Registration Statement (or any amendment or supplement thereto), the preliminary
or final Prospectus (or any amendment or supplement thereto), the Conversion
Applications (or any amendment or supplement thereto), including the
Corporators' Statement, the BHC Application (or any amendment or supplement
thereto), any Blue Sky Application or Sales Information or other documentation
distributed in connection with the Conversion; provided, however, that no
indemnification is required under this paragraph (a) to the extent such losses,
claims, damages, liabilities or actions arise out of or are based upon any
untrue material statement or alleged untrue material statement in, or material
omission or alleged material omission from, the Registration Statement (or any
amendment or supplement thereto), the preliminary or final Prospectus (or any
amendment or supplement thereto), the Conversion Application, any Blue Sky
Application or Sales Information made in reliance upon and in conformity with
information furnished in writing to the Company, the MHC or the Bank by the
Agent or its counsel regarding the Agent, provided, that it is agreed and
understood that the only information furnished in writing to the Company, the
MHC or the Bank by the Agent regarding the Agent is set forth in the Prospectus
under the caption "The Conversion - Plan of Distribution and Marketing
Arrangements;" and, PROVIDED FURTHER, that the Company, the MHC and the Bank
shall not be liable under clause (i) of the foregoing indemnification provision
to the extent that any loss, claim, damage, liability or action is found in a
final judgment by a court of competent jurisdiction to have resulted from the
Agent's bad faith, willful misconduct or gross negligence. Notwithstanding
anything to the contrary in this Agreement, the Company, the MHC and/or the Bank
shall not provide any indemnification under this Agreement to the extent
prohibited by applicable law, rule, order or directive by the FRB, the FDIC or
the SEC.
(b) The Agent agrees to indemnify and hold harmless, the Company, the MHC
and the Bank, their directors and officers and each person, if any, who controls
the Company or the Bank 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), joint
or several, which they, or any of them, may suffer or to which they, or
27
any of them may become subject under all applicable federal and state laws or
otherwise, and to promptly reimburse the Company, the MHC, the Bank, and any
such persons upon written demand for any expenses (including reasonable fees and
out-of-pocket expenses and disbursements of counsel with such fees and
disbursements limited to those of one firm) incurred by them, as incurred, or
any of them, in connection with investigating, preparing to defend 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 the Registration Statement (or any amendment or supplement
thereto), the Conversion Applications (or any amendment or supplement thereto),
the BHC Application (or any amendment or supplement thereto), the preliminary or
final Prospectus (or any amendment or supplement thereto), any Blue Sky
Application or Sales Information, (ii) 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 the 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 the Registration Statement (or any amendment or supplement thereto),
preliminary or final Prospectus (or any amendment or supplement thereto), the
Conversion Applications (or any amendment or supplement thereto), the BHC
Application (or any amendment or supplement thereto) or any Blue Sky Application
or Sales Information or other documentation distributed in connection with the
Conversion; provided, however, that the Agent's obligations under this Section
8(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, the Registration Statement (or any amendment or
supplement thereto), the preliminary or final Prospectus (or any amendment or
supplement thereto), the Conversion Applications (or any amendment or supplement
thereto), the BHC Application (or any amendment or supplement thereto), any Blue
Sky Application or Sales Information in reliance upon and in conformity with
information furnished in writing to the Company, the MHC or the Bank by the
Agent or its counsel regarding the Agent, provided, that it is agreed and
understood that the only information furnished in writing to the Company, the
MHC or the Bank by the Agent regarding the Agent is set forth in the Prospectus
under the caption "The Conversion - Plan of Distribution and Marketing
Arrangements."
(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 8 or
otherwise. 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 defense of such action
with counsel chosen by it and approved by 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 claim, other than reasonable costs of investigation. In no event
shall the
28
indemnifying parties be liable for the fees and expenses of more than one
separate firm of attorneys (and any special counsel that said firm may retain)
for each indemnified party 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.
(d) The agreements contained in this Section 8 and in Section 9 hereof
and the representations and warranties of the Company, the MHC and the Bank 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, agent or employees or by or on
behalf of the Company, the MHC or the Bank or any officers, directors, trustees
or controlling persons, agent or employees of the Company, the MHC or the Bank;
(ii) delivery of and payment hereunder for the Securities; or (iii) any
termination of this Agreement.
SECTION 9. CONTRIBUTION. In order to provide for just and equitable
contribution in circumstances in which the indemnification provided for in
Section 8 is due in accordance with its terms but is for any reason held by a
court to be unavailable from the Company, the MHC, the Bank or the Agent, the
Company, the MHC, the Bank and the Agent shall contribute to the aggregate
losses, claims, damages and liabilities (including any investigation, legal and
other expenses incurred in connection with, and any amount paid in settlement
of, any action, suit or proceeding, but after deducting any contribution
received by the Company, the MHC, the Bank or the Agent from persons other than
the other parties thereto, who may also be liable for contribution) in such
proportion so that the Agent is responsible for that portion represented by the
percentage that the fees paid to the Agent pursuant to Section 2 of this
Agreement (not including expenses) bears to the gross proceeds received by the
Company from the sale of the Securities in the Offering, and the Company, the
MHC and the Bank shall be responsible for the balance. If, however, the
allocation provided above is not permitted by applicable law, then each
indemnifying party shall contribute to such amount paid or payable by such
indemnified party in such proportion as is appropriate to reflect not only such
relative fault of the Company, the MHC and the Bank on the one hand and the
Agent on the other in connection with the statements or omissions which resulted
in such losses, claims, damages or liabilities (or actions, proceedings or
claims in respect thereto), but also the relative benefits received by the
Company, the MHC and the Bank on the one hand and the Agent on the other from
the Offering (before deducting expenses). The relative fault shall be determined
by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Company, the MHC and/or the
Bank on the one hand or the Agent on the other and the parties' relative intent,
good faith, knowledge, access to information and opportunity to correct or
prevent such statement or omission. The Company, the MHC, the Bank and the Agent
agree that it would not be just and equitable if contribution pursuant to this
Section 9 were determined by pro-rata allocation or by any other method of
allocation which does not take into account the equitable considerations
referred to above in this Section 9. The amount paid or payable by an
indemnified party as a result of the losses, claims, damages or liabilities (or
actions, proceedings or claims in respect thereof) referred to above in this
Section 9 shall be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or defending
any such action, proceeding or claim. It is expressly agreed that the Agent
shall not be liable for any
29
loss, liability, claim, damage or expense or be required to contribute any
amount pursuant to Section 8(b) or this Section 9 which in the aggregate exceeds
the amount paid (excluding reimbursable expenses) to the Agent under this
Agreement. It is understood that the above stated limitation on the Agent's
liability is essential to the Agent and that the Agent would not have entered
into this Agreement if such limitation had not been agreed to by the parties to
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. The obligations of the Company, the MHC, the Bank and the
Agent under this Section 9 and under Section 8 shall be in addition to any
liability which the Company, the MHC, the Bank and the Agent may otherwise have.
For purposes of this Section 9, each of the Agent's, the Company's, the MHC's,
or the Bank's officers and directors and each person, if any, who controls the
Agent or the Company, the MHC or the Bank within the meaning of the 1933 Act and
the 1934 Act shall have the same rights to contribution as the Agent, the
Company, the MHC or the Bank. Any party entitled to contribution, promptly after
receipt of notice of commencement of any action, suit, claim or proceeding
against such party in respect of which a claim for contribution may be made
against another party under this Section 9, will notify such party from whom
contribution may be sought, 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 9. Notwithstanding
anything to the contrary in this Agreement, the Company, the MHC and/or the Bank
shall not provide any contribution under this Agreement to the extent prohibited
by applicable law, rule, order or directive by the FDIC, the FRB or the SEC.
SECTION 10. SURVIVAL OF AGREEMENTS, REPRESENTATIONS AND INDEMNITIES. The
respective indemnities of the Company, the MHC, the Bank and the Agent and the
representations and warranties and other statements of the Company, the MHC, the
Bank and the Agent set forth in or made pursuant to this Agreement shall remain
in full force and effect, regardless of any termination or cancellation of this
Agreement or any investigation made by or on behalf of the Agent, the Company,
the MHC, the Bank or any controlling person referred to in Section 8 hereof, and
shall survive the issuance of the Securities, and any successor or assign of the
Agent, the Company, the MHC, the Bank, and any such controlling person shall be
entitled to the benefit of the respective agreements, indemnities, warranties
and representations.
SECTION 11. TERMINATION. The Agent may terminate this Agreement by giving
the notice indicated below in this Section 11 at any time after this Agreement
becomes effective as follows:
(a) In the event the Company fails to sell the required minimum number
of the Securities by February , 2006 (unless the Company and the Agent
agree in writing to extend such period), and in accordance with the
provisions of the Plan or as required by the Conversion Regulations, and
applicable law, this Agreement shall terminate upon refund by the Company to
each person who has subscribed for or ordered any of the Securities 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 as set forth in Sections 2(a), 6, 8
and 9 hereof.
(b) If any of the conditions specified in Section 7 shall not have been
fulfilled when and as required by this Agreement, unless waived in writing, or
by the Closing Date, this
30
Agreement and all of the Agent's obligations hereunder may be canceled by the
Agent by notifying the Company, the MHC and 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 2(a), 6, 8 and 9 hereof.
(c) In the event one of the Company, the MHC or the Bank is in material
breach of the representations and warranties or covenants contained in Sections
4 and 5 and such breach has not been cured after the Agent has provided the
Company, the MHC and the Bank with notice of such breach.
If the Agent elects to terminate this Agreement as provided in this
Section, the Company, the MHC and the Bank shall be notified promptly by
telephone or telegram, confirmed by letter.
The Company, the MHC and the Bank may terminate this Agreement in the
event the Agent is in material breach of the representations and warranties or
covenants contained in Section 5 and such breach has not been cured after the
Company, the MHC and the Bank have provided the Agent with notice of such
breach.
This Agreement may also be terminated by mutual written consent of the
parties hereto.
SECTION 12. NOTICES. All communications hereunder, except as herein
otherwise specifically provided, shall be mailed in writing and if sent to the
Agent shall be mailed, delivered or telegraphed and confirmed to Xxxxx, Xxxxxxxx
& Xxxxx, Inc., 000 Xxxxxxxxx Xxxxx, Xxxxxx, Xxxx 00000-0000, Attention: Xxxxxxxx
XxXxxxx (with a copy to Xxxxxx, XxXxxxxxx & Fish, LLP, Attention: Xxxxxxxx X.
Xxxxx, Esq.), and, if sent to the Company, the MHC and the Bank, shall be
mailed, delivered or telegraphed and confirmed to the Company, the MHC and the
Bank at Hampden Bancorp, Inc., 00 Xxxxxxxx Xxxxxx, Xxxxxxxxxxx, XX 00000,
Attention: Xxxxxx X. Xxxxxx, President and Chief Executive Officer (with a copy
to Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., Attention: R. Xxxx
Xxxxxxxxxx, Esq.).
SECTION 13. PARTIES. The Company, the MHC and the Bank shall be entitled
to act and rely on any request, notice, consent, waiver or agreement purportedly
given on behalf of the Agent when the same shall have been given by the
undersigned. The Agent shall be entitled to act and rely on any request, notice,
consent, waiver or agreement purportedly given on behalf of the Company, the MHC
or the Bank, when the same shall have been given by the undersigned or any other
officer of the Company, the MHC or the Bank. This Agreement shall inure solely
to the benefit of, and shall be binding upon, the Agent, the Company, the MHC,
the Bank, and their respective successors and assigns, and no other person shall
have or be construed to have any legal or equitable right, remedy or claim under
or in respect of or by virtue of this Agreement or any provision herein
contained. It is understood and agreed that this Agreement is the exclusive
agreement among the parties hereto, and supersedes any prior agreement among the
parties (except for specific references to the letter agreement with the Agent)
and may not be varied except in writing signed by all the parties.
SECTION 14. CLOSING. The closing for the sale of the Securities shall
take place on the Closing Date at such location as mutually agreed upon by the
Agent and the Company, the MHC
31
and the Bank. At the closing, the Company, the MHC and the Bank shall deliver to
the Agent in next day funds the commissions, fees and expenses due and owing to
the Agent as set forth in Sections 2 and 6 hereof and the opinions and
certificates required hereby and other documents deemed reasonably necessary by
the Agent shall be executed and delivered to effect the sale of the Securities
as contemplated hereby and pursuant to the terms of the Prospectus.
SECTION 15. PARTIAL INVALIDITY. In the event that any term, provision or
covenant herein or the application thereof to any circumstance or situation
shall be invalid or unenforceable, in whole or in part, the remainder hereof and
the application of said term, provision or covenant to any other circumstances
or situation shall not be affected thereby, and each term, provision or covenant
herein shall be valid and enforceable to the full extent permitted by law.
SECTION 16. CONSTRUCTION. This Agreement shall be construed in accordance
with the laws of the State of New York.
SECTION 17. COUNTERPARTS. This Agreement may be executed in separate
counterparts, each of which so executed and delivered shall be an original, but
all of which together shall constitute but one and the same instrument.
SECTION 18. ENTIRE AGREEMENT. This Agreement, including schedules and
exhibits hereto, which are integral parts hereof and incorporated as though set
forth in full, constitutes the entire agreement between the parties pertaining
to the subject matter hereof superseding any and all prior or contemporaneous
oral or prior written agreements, proposals, letters of intent and
understandings (except for the letter agreement, dated May 9, 2006, made by and
between the MHC and the Agent), and cannot be modified, changed, waived or
terminated except by a writing which expressly states that it is an amendment,
modification or waiver, refers to this Agreement and is signed by the party to
be charged. No course of conduct or dealing shall be construed to modify, amend
or otherwise affect any of the provisions hereof.
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If the foregoing correctly sets forth the arrangement among the Company,
the MHC, the Bank and the Agent, please indicate acceptance thereof in the space
provided below for that purpose, whereupon this letter and the Agent's
acceptance shall constitute a binding agreement.
Very truly yours,
HAMPDEN BANCORP, INC. HAMPDEN BANK
By Its Authorized Representative: By Its Authorized Representative:
------------------------------------- --------------------------------------
Xxxxxx X. Xxxxxx, President Xxxxxx X. Xxxxxx, President
HAMPDEN BANCORP, MHC
By Its Authorized Representative:
-------------------------------------
Xxxxxx X. Xxxxxx, President
ACCEPTED AS OF THE DATE FIRST ABOVE
WRITTEN
Xxxxx, Xxxxxxxx & Xxxxx, Inc.
-------------------------------------
Xxxxxxxx XxXxxxx
Managing Director
33
EXHIBIT A
MINTZ, LEVIN, COHN, FERRIS, GLOVSKY AND POPEO, P.C. LEGAL OPINION
