ROEBLING FINANCIAL CORP, INC.
(a New Jersey-chartered Stock Corporation)
Up to 853,532 Shares of Common Stock
(Subject to Increase Up to 981,551 shares)
COMMON STOCK ($.10 Par Value)
Subscription Price $10.00 Per Share
AGENCY AGREEMENT
___________, 2004
Xxxxx, Xxxxxxxx & Xxxxx, Inc.
000 Xxxxxxxxx Xxxxx
Xxxxxx, Xxxx 00000-0000
Ladies and Gentlemen:
Roebling Financial Corp, Inc., a federally chartered stock corporation
(together with its subsidiary, the "Mid-Tier Holding Company"), Roebling
Financial Corp, Inc., a newly formed New Jersey-chartered stock form corporation
organized to be the successor of the Mid-Tier Holding Company (the "Holding
Company"), Roebling Financial Corp., MHC, a federally chartered mutual holding
company which owned 54% of the common stock of the Mid-Tier Holding Company at
March 31, 2004 (the "MHC"), and Roebling Bank, a federally chartered savings
association (the "Bank") whose common stock is owned in its entirety by the
Mid-Tier Holding Company (collectively, the "Roebling Parties") hereby confirm,
jointly and severally, their agreement with Xxxxx, Xxxxxxxx & Xxxxx, Inc. ("KBW"
or the "Agent"), as follows:
Section 1. The Offering. The MHC, in accordance with the Plan of
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Conversion and Reorganization adopted April 8, 2004 (the "Plan"), intends to
convert from mutual to stock form (the "Conversion"). The Conversion is being
conducted in accordance with the laws of the United States and the applicable
regulations of the Office of Thrift Supervision ("OTS") (such laws and the
regulations of the OTS are referred to herein as the "Conversion Regulations").
In connection with the Conversion, the Holding Company will offer stock on a
priority basis to (i) Eligible Account Holders (depositors at the close of
business on March 31, 2003 with deposits of at least $50.00); (ii) the employee
stock ownership plan of the Holding Company; (iii) Supplemental Eligible Account
Holders (depositors at the close of business on June 30, 2004 with deposits of
at least $50.00); and (iv) Other Members (depositors at the close of business on
__________, 2004). All capitalized terms used in this Agreement and not defined
in this Agreement shall have the meanings set forth in the Plan. Pursuant to the
Plan, the Holding Company is offering a minimum of 630,878 and an anticipated
maximum of 853,532 shares (subject to an increase up to 981,551 shares) of
common stock, par value $.10 per share (the
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"Common Stock"), in the Subscription Offering, and, if necessary, (i) the
Community Offering and/or (ii) a Syndicated Community Offering.
Pursuant to the Plan, the Holding Company will offer and sell shares of
its Common Stock (the "Shares") in the Subscription Offering, Community
Offering, and/or Syndicated Community Offering (the "Offerings") and issue
shares of the Holding Company to existing public shareholders of the Mid-Tier
Holding Company in exchange for their existing shares of the Mid-Tier Holding
Company (the "Exchange") so that, upon completion of the Offerings, 100% of the
outstanding Common Stock of the Holding Company will be publicly held. The
Holding Company will sell the Shares in the Offerings at $10.00 per share (the
"Purchase Price"). If the number of Shares is increased or decreased in
accordance with the Plan, the term "Shares" shall mean such greater or lesser
number, where applicable.
Pursuant to the Plan, in the Subscription Offering, the Holding Company
will offer the Shares, subject to the allocation procedures and purchase
limitations set forth in the Plan, in descending order of priority to: (1)
Eligible Account Holders; (2) the Employee Plans of the Holding Company or the
Bank; (3) Supplemental Eligible Account Holders; and (4) Other Members. The
Holding Company may offer Shares, if any, remaining after the Subscription
Offering, in the Community Offering on a priority basis to the Mid-Tier Holding
Company's public stockholders at the Voting Record Date, and then to the natural
persons residing within the New Jersey counties of Ocean and Burlington, and
then to natural persons residing in New Jersey. In the event a Community
Offering is held, it may be held at any time simultaneously with, during or
subsequent to the completion of the Subscription Offering. Depending on market
conditions, Shares available for sale but not subscribed for in the Subscription
Offering or purchased in the Community Offering may be offered in the Syndicated
Community Offering to the general public on a best efforts basis, as described
in subsection 4(c) below.
The Holding Company has filed with the U.S. Securities and Exchange
Commission (the "Commission") Registration Statement on Form SB-2 (File No.
___________) in order to register the Shares under the Securities Act of 1933,
as amended (the "1933 Act"), and has filed such amendments thereto as have been
required to the date hereof (the "Registration Statement"). The prospectus, as
amended, included in the Registration Statement at the time it initially became
effective is hereinafter called the "Prospectus," except that if any prospectus
is filed by the Holding Company pursuant to Rule 424(b) or (c) of the
regulations of the Commission under the 1933 Act differing from the prospectus
included in the Registration Statement at the time it 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
Commission and shall include any supplements and amendments thereto from and
after their dates of effectiveness or use, respectively.
In connection with the Conversion, the MHC filed with the OTS an
application for conversion to a stock company (the "Conversion Application") and
amendments thereto as required by the OTS. The Holding Company has also filed
with the OTS its application on Form H-(e)1-S (the "Holding Company
Application") to become a unitary savings and loan holding
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company under the Home Owners' Loan Act of 1933, as amended, and the regulations
promulgated thereunder (the "HOLA"). Collectively, the Conversion Application
and the Holding Company Application may also be termed the "Applications."
Section 2. Retention of Agent. Subject to the terms and conditions
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herein set forth, the Roebling Parties hereby appoint the Agent as their
financial advisor and marketing agent to utilize its best efforts to solicit
subscriptions for Shares and to advise and assist the Roebling Parties with
respect to the Holding Company's sale of the Shares 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 Roebling
Parties as to the matters set forth in the letter agreement, dated April 14,
2004, between the Bank and KBW (a copy of which is attached hereto as Exhibit
A). It is acknowledged by the Roebling Parties that the Agent shall not be
required to purchase any Shares or be obligated to take any action that is
inconsistent with all applicable laws, regulations, decisions or orders.
The obligations of the Agent pursuant to this Agreement shall terminate
upon the completion or termination or abandonment of the Plan by the Holding
Company or upon termination of the Offering, but in no event later than 45 days
after the completion of the Subscription Offering (the "End Date"). All fees or
expenses due to the Agent but unpaid 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 Roebling
Parties and the Agent may agree to renew this Agreement under mutually
acceptable terms and subject to the approval of any governmental agency or
regulatory authority having jurisdiction over such matters.
In the event the Holding Company is unable to sell a minimum of 630,878
Shares by the End Date, this Agreement shall terminate and the Holding Company
shall refund to any persons who have subscribed for any of the Shares 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 9, 11 and 12 hereof.
In the event the Offering is terminated for any reason not attributable
to the action or inaction of the Agent, the Agent shall be paid the fees due to
the date of such termination pursuant to Section 4, subparagraphs (a) and (d),
below.
Section 3. Sale and Delivery of Shares. If all conditions precedent to
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the consummation of the Conversion, including, without limitation, the sale of
all Shares required by the Plan to be sold, are satisfied, the Holding Company
agrees to issue, or have issued, the Shares sold in the Offering and to release
for delivery certificates for such Shares on the Closing Date (as hereinafter
defined) against payment to the Holding Company by any means authorized by the
Plan; provided, however, that no funds shall be released to the Holding Company
until the
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conditions specified in Section 10 hereof shall have been complied with to the
reasonable satisfaction of the Agent and its counsel. The release of Shares
against payment therefor shall be made on a date and at a place acceptable to
the Roebling Parties and the Agent. Certificates for shares shall be delivered
directly to the purchasers in accordance with their directions. The date upon
which the Holding Company shall release or deliver the Shares sold in the
Offering, in accordance with the terms herein, is called the "Closing Date."
Section 4. Compensation. The Agent shall receive the following
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compensation for its services hereunder:
(a) A Management Fee of $35,000, payable in five consecutive monthly
installments of $7,000, commencing with the adoption of the Plan. Such fees
shall be deemed earned when due. Should the Plan be terminated for any reason
not attributable to the action or inaction of the Agent, the Agent shall have
earned and be entitled to be paid fees accruing through the stage at which the
termination occurred.
(b) A Success Fee of 0.80% shall be charged based on the aggregate
purchase price of the Shares sold in the Subscription Offering and the Community
Offering. In no event, however, shall the Success Fee be less than $50,000. The
Success Fee is payable only upon the successful completion of the Offering.
(c) If any of the Shares remain available after the Subscription
Offering, at the request of the Bank, KBW may seek to form a syndicate of
registered broker-dealers ("Selected Dealers") to assist in the solicitation of
orders of the common stock in a syndicated community offering, on a best efforts
basis, subject to the terms and conditions set forth in the selected dealers
agreement. KBW will endeavor to distribute the Shares among the Selected Dealers
in a fashion which best meets the distribution objectives of the Bank and the
Plan. KBW will be paid a fee not to exceed 5.5% of the aggregate purchase price
of the shares sold by the syndicated community offering. From this fee, KBW will
pass on to the Selected Dealers who assist in such 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 affected with the assistance
of Selected Dealers other than KBW shall be transmitted by KBW to such Selected
Dealers. The decision to utilize Selected Dealers will be made by the Bank upon
consultation with KBW. In the event, with respect to any stock purchases, fees
are paid pursuant to this subparagraph 4(c), such fees shall be in lieu of, and
not in addition to, payment pursuant to subparagraph 4(b).
(d) The Agent shall be reimbursed for reasonable out-of-pocket
expenses, including costs of travel, meals and lodging, photocopying, telephone,
facsimile and couriers. The selection of KBW's counsel will be done by KBW, with
the approval of the Bank. Reimbursement of KBW's reasonable out-of-pocket
expenses, including fees of counsel, shall not exceed $52,000 without the prior
consent of the Bank. The Bank will bear the expenses of the Offering customarily
borne by issuers including, without limitation, regulatory filing fees,
Commission, "Blue Sky," and NASD filing and registration fees; the fees of the
Bank's
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accountants, attorneys, appraiser, transfer agent and registrar, printing,
mailing and marketing and syndicate expenses associated with the Conversion; and
the fees set forth under this Section 4. The Roebling Parties will reimburse KBW
for such expenses incurred by KBW on their behalf.
Full payment of KBW'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 Bank to terminate or abandon the Plan.
Section 5. Closing. The closing for the sale of the Shares shall take
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place on the Closing Date at such location as mutually agreed upon by the Agent
and the Roebling Parties. At the closing, the Roebling Parties 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 4 and 9 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 Shares as
contemplated hereby and pursuant to the terms of the Prospectus.
Section 6. Representations and Warranties of the Roebling Parties. The
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Roebling Parties jointly and severally represent and warrant to the Agent that:
(a) Each of the Roebling Parties has all such power, authority,
authorizations, approvals and orders as may be required to enter into this
Agreement, and, as of the Closing Date, each of the Roebling Parties will have
all such power, authority, authorizations, approvals and orders as may be
required to carry out the provisions and conditions hereof and to issue and sell
the Shares as provided herein and as described in the Prospectus. The
consummation of the Conversion, the execution, delivery and performance of this
Agreement and the Letter Agreement and the consummation of the transactions
contemplated herein have been duly and validly authorized by all necessary
corporate action on the part of each of the Roebling Parties. This Agreement has
been validly executed and delivered by each of the Roebling Parties, and is a
valid, legal and binding obligation of each of the Roebling Parties, in each
case enforceable in accordance with its terms, except as the legality, validity,
binding nature and enforceability thereof may be limited by (i) bankruptcy,
insolvency, moratorium, reorganization, conservatorship, receivership or other
similar laws relating to or affecting the enforcement of creditors' rights
generally, (ii) general equity principles regardless of whether such
enforceability is considered in a proceeding in equity or at law, and (iii) the
extent, if any, that the provisions of Sections 11 or 12 hereof may be
unenforceable as against public policy.
(b) The Registration Statement which was prepared by the Roebling
Parties and filed with the Commission was declared effective by the Commission
on ________, 2004. No stop order has been issued with respect to the Prospectus.
No proceedings related to the Prospectus have been initiated or, to the
knowledge of the Roebling Parties, threatened by the Commission. At the time the
Registration Statement, including the Prospectus contained therein (including
any amendment or supplement thereto), became effective, the Registration
Statement complied and will comply as to form in all material respects with the
requirements of the 1933 Act and the
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regulations promulgated thereunder. The Registration Statement, including the
Prospectus (and any amendment or supplement thereto), and any information
regarding the Roebling Parties contained in Sales Information authorized by the
Roebling Parties 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. At the time any Rule
424(b) or (c) Prospectus is filed with the Commission and at the Closing Date
referred to in Section 5, the Registration Statement, including the Prospectus
(including any amendment or supplement thereto) and, when taken together with
the Prospectus, any Blue Sky Application or Sales Information authorized for use
by any of the Roebling Parties in connection with the Offering, will contain all
statements that are required to be stated therein in accordance with the 1933
Act and the 1933 Act Regulations and will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading; provided, however, that the
representations and warranties in this Section 6(b) shall not apply to
statements or omissions made in reliance upon and in conformity with written
information furnished to the Roebling Parties by the Agent or its counsel
expressly regarding the Agent for use in the Prospectus under the caption "The
Stock Offering--Plan of Distribution/Marking Arrangements" or statements in or
omissions from any Sales Information or information filed pursuant to state
securities or blue sky laws or regulations regarding the Agent.
(c) The Conversion Application which was prepared by the Roebling
Parties has been approved by the OTS. The Conversion Application did, and will,
as of the Closing Date, comply as to form in all material respects with the
Conversion Regulations and any other applicable rules and regulations of the
OTS.
(d) No order has been issued by the Commission preventing or suspending
the use of the Registration Statement or the Prospectus and no action by or
before any such government entity to revoke any approval, authorization or order
of effectiveness related to the Conversion is, to the best knowledge of the
Roebling Parties, pending or threatened.
(e) The Plan has been duly adopted by the Board of the MHC. The offer
and sale of the Shares 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 Conversion imposed upon the
Roebling Parties by the OTS, the Commission, or any other regulatory authority
and in the manner described in the Prospectus. To the best knowledge of the
Roebling Parties, no person has, or at the Closing Date will have, sought to
obtain review of the final action of the OTS in approving the Conversion
Application or the Holding Company Application, pursuant to the Conversion
Regulations, the HOLA or any other statute or regulation.
(f) The Holding Company has filed the Holding Company Application with
the OTS. The Holding Company Application complies in all material respects with
the HOLA and Control
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Act Regulations. As of the Closing Date, the OTS will have approved of the
Holding Company's becoming a unitary savings and loan holding company with
respect to the Bank.
(g) FinPro, Inc., which prepared the appraisal of the aggregate pro
forma market value of the Common Stock on which the Offerings were based (the
"Appraisal"), has advised the Roebling Parties in writing that it is independent
with respect to each of the Roebling Parties within the meaning of the
Conversion Regulations and the Roebling Parties believe FinPro, Inc. to be an
expert in preparing appraisals of savings institutions.
(h) Xxxxxxxxxx & Babbitts, which certified the financial statements
filed as part of the Registration Statement and the Conversion Application, has
advised the Roebling Parties that it is an independent certified public
accountant within the meaning of the Code of Ethics of the AICPA, and Xxxxxxxxxx
& Babbitts is, with respect to the Roebling Parties and each subsidiary thereof,
independent certified public accountants as required by the 1933 Act and the
regulations promulgated thereunder.
(i) The financial statements, schedules and the notes related thereto
which are included in the Registration Statement and which are a part of the
Prospectus present fairly in all material respects the consolidated financial
condition of the Mid-Tier Holding Company and the Bank as of the dates indicated
and the results of operations, changes in stockholders' equity and cash flows
for the periods specified. The financial statements comply in all material
respects with the applicable accounting requirements of Title 12 of the Code of
Federal Regulations, Regulation S-X of the Commission and generally accepted
accounting principles ("GAAP") applied on a consistent basis during the periods
presented, except as otherwise noted therein, and present fairly in all material
respects the information required to be stated therein. 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 any unaudited financial statements included in the
Prospectus, and as to the pro forma adjustments, the adjustments made therein
have been consistently applied on the basis described therein.
(j) Since the respective dates as of which information is given in the
Registration Statement, including the Prospectus: (i) there has not been any
material adverse change in the financial condition, results of operation,
earnings, capital, properties, business affairs or prospects or otherwise of the
Roebling Parties considered as one enterprise, whether or not arising in the
ordinary course of business; (ii) 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
which 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 have the Roebling
Parties issued any securities (other than in connection with the incorporation
of the Company) or incurred any liability or obligation for borrowing other than
in the ordinary course of business; (iii) there have not been any material
transactions entered into by any of the Roebling Parties, other than those in
the ordinary course of business; (iv) there has not been any material adverse
change in the aggregate dollar amount of the Bank's deposits or its net worth;
(v) there has been
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no material change in the Roebling Parties' relationship with its insurance
carriers, including, without limitation, cancellation or other termination of
the Roebling Parties, fidelity bond or any type of insurance coverage; (vi)
except as disclosed in the Prospectus, there has been no material change in
management of the Roebling Parties; (vii) the Roebling Parties have not
sustained any material loss or interference with its business or properties from
fire, flood, windstorm, earthquake, accident or other calamity, whether or not
covered by insurance; (viii) none of the Roebling Parties have defaulted in the
payment of principal or interest on any outstanding debt obligations; (ix) the
capitalization, liabilities, assets, properties and business of the Roebling
Parties conform in all material respects to the descriptions thereof contained
in the Prospectus; and (x) none of the Roebling Parties have any material
liabilities of any kind, contingent or otherwise, except as disclosed in the
Registration Statement or the Prospectus.
(k) As of the Closing Date, the Holding Company will be a stock
corporation duly organized and in good standing under the laws of the State of
New Jersey, with corporate power and authority to own, lease and operate its
properties and to conduct the business currently conducted by the Mid-Tier
Holding Company, as described in the Prospectus, and will be qualified to
transact business and will be in good standing in New Jersey and in each
jurisdiction in which the conduct of business requires such qualification,
unless the failure to qualify in one or more of such jurisdictions would not
have a material adverse effect on the financial condition, results of operation,
capital, properties, business affairs or prospects of the Roebling Parties taken
as a whole (a "Material Adverse Effect"). As of the Closing Date, the Holding
Company will have obtained all licenses, permits and other governmental
authorizations required for the conduct of its business, except those that
individually or in the aggregate would not have a Material Adverse Effect. As of
the Closing Date, all such licenses, permits and other governmental
authorizations will be in full force and effect, and the Holding Company will be
in compliance therewith in all material respects.
(l) As of the date of this Agreement, the Holding Company does not own
any equity securities or any equity interest in any business enterprise.
(m) The Bank is a duly organized and validly existing
federally-chartered savings association, duly authorized to conduct its business
as described in the Prospectus; the activities of the Bank are permitted by the
applicable rules, regulations and practices of the OTS (or valid waivers granted
by the OTS from such rules, regulations and practices). 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 have a Material Adverse Effect; all such licenses, permits
and other governmental authorizations are in full force and effect and the Bank
is in good standing under the laws of the United States and the Bank is duly
qualified as a foreign corporation to transact business in each jurisdiction in
which the failure to so qualify would have a Material Adverse Effect. All of the
issued and outstanding capital stock of the Bank after the Conversion will be
duly and validly issued and fully paid and nonassessable; and the Holding
Company will directly own all of the capital stock of the Bank free and clear of
any mortgage, pledge, lien, encumbrance, claim or restriction of any kind. As of
the date of this Agreement, the Bank does not own equity securities or any
equity interest in
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any other business enterprise except for (i) marketable equity securities and
(ii) other equity interests as described in the Prospectus or as are immaterial
in amount and are not required to be described in the Prospectus.
(n) The MHC is a federally-chartered mutual savings and loan holding
company operating under the laws and regulations of the United States and under
the supervision of the OTS and is in good standing under such laws.
(o) The Mid-Tier Holding Company is a duly organized and validly
existing federally-chartered mutual savings and loan holding company, duly
authorized to conduct its business as described in the Prospectus; the
activities of the Mid-Tier Holding Company are permitted by the rules,
regulations and practices of the OTS. The Mid-Tier Holding 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 have a Material Adverse Effect; all such licenses, permits
and other governmental authorizations are in full force and effect and the
Mid-Tier Holding Company is in good standing under the laws of United States and
the Mid-Tier Holding Company is duly qualified as a foreign corporation to
transact business in each jurisdiction in which the failure to so qualify would
have a Material Adverse Effect. As of the date of this Agreement, the Mid-Tier
Holding Company does not own equity securities or any equity interest in any
other business enterprise except for (i) marketable equity securities and (ii)
other equity interests as described in the Prospectus or as are immaterial in
amount and are not required to be described in the Prospectus.
(p) The Bank is a member of the Federal Home Loan Bank of New York. 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
is pending or, to the best knowledge of the Roebling Parties, threatened. The
Bank is a "qualified thrift lender" within the meaning of 12 U.S.C. ss.
1467(a)(m). Upon consummation of the Conversion, the Bank will establish a
liquidation account in accordance with the Plan and the requirements of
applicable Conversion Regulations.
(q) As of the Closing Date, the Bank will be a wholly owned subsidiary
of the Holding Company. The Bank has no subsidiaries.
(r) Upon consummation of the Conversion, the authorized, issued and
outstanding capital stock of the Holding Company will be within the range set
forth in the Prospectus under the caption "Capitalization" and no shares of
Common Stock have been or will be issued and outstanding prior to the Closing
Date (except for the shares issued upon incorporation of the Holding Company);
the shares of Common Stock to be subscribed for in the Offerings have been duly
and validly authorized for issuance and, when issued and delivered by the
Holding Company pursuant to the Plan against payment of the consideration
calculated as set forth in the Plan and the Prospectus, will be duly and validly
issued, fully paid and nonassessable; the issuance of the Shares is not subject
to preemptive rights, except for the subscription rights granted pursuant to the
Plan; and the terms and provisions of the shares of Common Stock will
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conform in all material respects to the description thereof contained in the
Prospectus. Upon issuance of the Shares sold, good title to the Shares will be
transferred from the Holding Company to the purchasers of Shares against payment
therefor in the Offering as set forth in the Plan and the Prospectus, subject to
such claims as may be asserted against the purchasers thereof by third-party
claimants.
(s) The Roebling Parties are not in violation of their respective
certificates of incorporation or charters or their respective bylaws, or in
material default in the performance or observance of any obligation, agreement,
covenant, or condition contained in any contract, lease, loan agreement,
indenture or other instrument to which they are a party or by which they, or any
of their respective properties, may be bound which would result in a Material
Adverse Effect. The consummation of the transactions contemplated herein and in
the Plan will not (i) conflict with or constitute a breach of, or default under,
or result in the creation of any material lien, charge or encumbrance upon any
assets of the Roebling Parties pursuant to the certificate of incorporation,
charter or bylaws of any of the Roebling Parties, or conflict with or constitute
a breach of, or default under, any contract, lease or other instrument to which
any of the Roebling Parties is a party which breach, default or conflict would
have a Material Adverse Effect, or any applicable law, rule, regulation or order
that is material to the financial condition of any of the Roebling Parties; (ii)
violate any authorization, approval, judgment, decree, order, statute, rule or
regulation applicable to the Roebling Parties except for such violations which
would not have a Material Adverse Effect; or (iii) result in the creation of any
lien, charge or encumbrance upon any property of the Roebling Parties, except
for such liens, charges or encumbrances upon any property of the Roebling
Parties that would not individually or in the aggregate have a Material Adverse
Effect.
(t) All documents made available to or delivered or to be made available
to or delivered by the Roebling Parties or their representatives in connection
with the issuance and sale of the Shares, 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 Roebling Parties or their representatives, to the best knowledge
of the Roebling Parties, 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.
(u) 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 any of the
Roebling Parties 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 any of the Roebling
Parties is a party or by which any of their property is bound or affected in any
respect which, in any such case, would have a Material Adverse Effect on the
Roebling Parties taken as a whole, and such agreements are in full force and
effect; and no other party to any such agreements has instituted or, to the
knowledge of any of the Roebling Parties, threatened any action or proceeding
wherein any of the Roebling Parties would or might be alleged to be in default
thereunder under circumstances where such action or proceeding, if determined
adversely to any of the Roebling Parties, would have a Material Adverse Effect.
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(v) The Roebling Parties have good and marketable title to all real
property and good title to all other assets which are material to the businesses
of the Roebling Parties, taken as a whole, and to those properties and assets
described in the Prospectus as owned by them, free and clear of all liens,
charges, encumbrances, restrictions or other claims, except such as are
described in the Prospectus or which do not have a Material Adverse Effect,
taken as a whole; and all of the leases and subleases which are material to the
businesses of the Roebling Parties, including those described in the
Registration Statement or Prospectus, are in full force and effect.
(w) The Roebling Parties are not in violation of any material directive
from the OTS, the FDIC, or any other agency to make any material change in the
method of conducting their respective businesses; the Roebling Parties have
conducted and are conducting their respective businesses so as to comply in all
respects with all applicable statutes and regulations (including, without
limitation, regulations, decisions, directives and orders of the OTS, the
Commission and the FDIC), except where the failure to so comply would not
reasonably be expected to result in a Material Adverse Effect, and there is no
charge, investigation, action, suit or proceeding before or by any court,
regulatory authority or governmental agency or body pending or, to the knowledge
of any of the Roebling Parties, threatened, which would reasonably be expected
to materially and adversely affect the Conversion, the performance of this
Agreement, or the consummation of the transactions contemplated in the Plan as
described in the Registration Statement, or which would reasonably be expected
to result in a Material Adverse Effect.
(x) Prior to the Closing Date, the Roebling Parties will have received
an opinion of their special counsel, Xxxxxxx Spidi & Xxxxx, PC, with respect to
the federal income tax consequences of the Conversion, as described in the
Registration Statement and the Prospectus and an opinion of Xxxxxxxxxx &
Babbitts with respect to the state tax consequences of the Conversion, as
described in the Registration Statement and the Prospectus; and the facts and
representations upon which such opinions will be based, will be truthful,
accurate and complete, and none of the Roebling Parties will take any action
inconsistent therewith.
(y) The Mid-Tier Holding Company and the Bank have timely filed all
required federal, state and local tax returns, paid all taxes that have become
due and payable in respect of such returns, except where permitted to be
extended or where the failure to pay such taxes would not have a Material
Adverse Effect, and no deficiency has been asserted with respect thereto by any
taxing authority.
(z) No approval, authorization, consent or other order of any
regulatory or supervisory or other public authority is required for the
execution and delivery by the Roebling Parties of this Agreement, or the
issuance of the Shares, except for the approval of the OTS, the Commission and
the Nasdaq Stock Market, Inc. ("NASD"), and any necessary qualification,
notification, registration or exemption under the securities or blue sky laws of
the various states in which the Shares are to be offered.
11
(aa) None of the Roebling Parties has: (i) issued any securities within
the last 18 months (except for (a) notes to evidence bank loans and reverse
repurchase agreements or other liabilities in the ordinary course of business or
as described in the Prospectus, and (b) shares of Common Stock issued with
respect to the initial capitalization of the Holding Company, and (c) shares of
the Mid-Tier Holding Company issued upon the exercise of stock options); (ii)
had any material dealings with respect to sales of securities 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 Offerings and routine purchases and sales of United States
government and agency and other securities in the ordinary course of business;
(iii) entered into a financial or management consulting agreement except as
contemplated hereunder; or (iv) engaged any intermediary between the Agent and
the Roebling Parties in connection with the Offerings or the offering of shares
of the common stock of the Mid-Tier Holding Company, and no person is being
compensated in any manner for such services.
(bb) The Roebling Parties have not made any payment of funds of the
Roebling Parties as a loan to any entity for the purchase of the Shares, or has
made any other payment or loan of funds prohibited by law, and no funds have
been set aside to be used for any payment prohibited by law.
(cc) The Roebling Parties comply 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.
(dd) The Roebling Parties have not relied upon the Agent or its counsel
for any legal, tax or accounting advice in connection with the Conversion.
(ee) The records used by the Roebling Parties to determine the identity
of Eligible Account Holders and Supplemental Eligible Account Holders and Other
Members are accurate and complete in all material respects.
(ff) The Roebling Parties comply with all laws, rules and regulations
relating to environmental protection, and none of them has been notified or is
otherwise aware that any of them is potentially liable, or is considered
potentially liable, under the Comprehensive Environmental Response, Compensation
and Liability Act of 1980, as amended, or any other Federal, state or local
environmental laws and regulations except to the extent that any non-compliance,
individually or in the aggregate, would not have a Material Adverse Effect. No
action, suit, demand, claim, notice, regulatory investigation or other
proceeding (including, without limitation, notices, demand letters or requests
for information from any environmental agency) is pending, or to the knowledge
of the Roebling Parties, threatened against the Roebling Parties relating to
environmental protection, nor do the Roebling Parties have any reason to believe
any such proceedings may be brought against any of them; and, to the knowledge
of the Roebling Parties, no disposal, release or discharge of hazardous or toxic
substances, pollutants or contaminants, including petroleum and gas products, as
any of such terms may be defined under federal, state or local law, has occurred
on, in, at or about any facilities or properties owned or
12
leased by any of the Roebling Parties or in which the Bank has a security
interest, except to the extent such disposal, release or discharge would not
have a Material Adverse Effect.
(gg) All of the loans represented as assets in the Business of Roebling
Financial Corp, Inc. and Roebling Bank section or financial information of the
Roebling Parties included in the Prospectus meet or are exempt from all
requirements of federal, state and local law pertaining to lending, including,
without limitation, truth in lending (including the requirements of Regulations
Z and 12 C.F.R. Part 226), real estate settlement procedures, consumer credit
protection, equal credit opportunity and all disclosure laws applicable to such
loans, except for violations which, if asserted, would not result in a Material
Adverse Effect.
(hh) None of the Roebling Parties are required to be registered as an
investment company under the Investment Company Act of 1940, as amended.
(ii) Any certificates signed by an officer of any of the Roebling
Parties and delivered to the Agent or its counsel that refers to this Agreement
shall be deemed to be a representation and warranty by the Roebling Parties to
the Agent as to the matters covered thereby with the same effect as if such
representation and warranty were set forth herein.
(jj) The Roebling Parties have taken all actions necessary to obtain at
Closing a Blue Sky Memorandum from Xxxxxxx Spidi & Xxxxx, PC.
(kk) The Holding Company maintains a system of internal accounting
controls sufficient to provide reasonable assurance that (i) transactions are
executed in accordance with management's general or specific authorization, (ii)
transactions are recorded as necessary to permit preparation of financial
statements in conformity with generally accepted accounting principles to
maintain accountability for assets, (iii) access to assets is permitted only in
accordance with management's general or specific authorization, and (iv) the
recorded accounts or assets is compared with the existing assets at reasonable
intervals and appropriate action is taken with respect thereto. The books,
records and accounts and systems of internal accounting control of the Holding
Company comply in all material respects with the requirements of Section
13(b)(2) of the 1934 Act. The Holding Company maintains "disclosure controls and
procedures" (as defined in Rule 13a-14(c) under the Exchange Act) that are
effective in ensuring the information it will be required to disclose in the
reports it files or submits under the Exchange Act is accumulated and
communicated to the Holding Company's management (including the Holding
Company's chief executive officer and chief financial officer) in a timely
manner and recorded, processed, summarized and reported within the periods
specified in the Commission's rules and forms.
Section 7. Representations and Warranties of the Agent. The Agent
-----------------------------------------------
represents and warrants to the Roebling Parties that:
13
(a) The Agent is a duly organized New York corporation and is validly
existing and 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 Roebling
Parties hereunder.
(b) The execution, delivery and performance of this Agreement, the
Letter Agreement and the consummation of the transactions contemplated herein
and therein have been duly and validly authorized by all necessary corporate
action on the part of the Agent, and each of this Agreement and the Letter
Agreement is the legal, valid and binding agreement of the Agent, enforceable in
accordance with its terms, except as the legality, validity, binding nature and
enforceability thereof may be limited by (i) bankruptcy, insolvency, moratorium,
reorganization, conservatorship, receivership or other similar laws relating to
or affecting the enforcement of creditors' rights generally, and (ii) general
equity principles regardless of whether such enforceability is considered in a
proceeding in equity or at law.
(c) 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, and until the Offerings are consummated or terminated
shall maintain, all licenses, approvals and permits necessary to perform such
services and shall comply in all material respects with all applicable laws and
regulations in connection with the performance of such services.
(d) There is no action, suit, charge or proceeding before the
Commission, the NASD, any state securities commission or any court is pending,
or to the knowledge of the Agent threatened, against the Agent which, if
determined adversely to the Agent, would have a material adverse effect upon the
ability of the Agent to perform its obligations under this Agreement.
(e) Agent is registered as a broker/dealer pursuant to Section 15(b) of
the Securities Exchange Act of 1934, as amended (the "1934 Act") and is a member
in good standing of the NASD.
(f) Any funds received in the Offerings by the Agent will be handled by
the Agent in accordance with Rule 15c2-4 under the 1934 Act to the extent
applicable.
(g) The execution and delivery of this Agreement by the Agent, the
consummation of the transactions contemplated thereby and compliance with the
terms and provisions hereof will not conflict with, or result in the breach of,
any 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 Articles 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.
(h) No approval of any regulator or supervisor or other public
authority is required in connection with the Agent's execution and delivery of
this Agreement, except as may have been received.
14
Section 8. Covenants of the Roebling Parties. The Roebling Parties
-----------------------------------
hereby jointly and severally covenant with the Agent as follows:
(a) The Holding Company will not, at any time after the date the
Registration Statement is declared effective, file any amendment or supplement
to the Registration Statement without providing the Agent and its counsel a
reasonable opportunity to review and comment on such amendment or supplement.
The Holding Company will furnish promptly to the Agent and its counsel copies of
all correspondence from the Commission with respect to the Registration
Statement and the Holding Company's responses thereto.
(b) The Roebling Parties will not, at any time after the date any
Application is approved, file any amendment or supplement to such Application
without providing the Agent and its counsel a reasonable opportunity to review
and comment on such amendment or supplement. The Roebling Parties will furnish
promptly to the Agent and its counsel copies of all correspondence from the OTS
with respect to the Applications and the Roebling Parties' responses thereto.
(c) The Roebling Parties will use their best efforts to cause the OTS
to approve the Holding Company's acquisition of the Bank, and will use their
best efforts to cause any post-effective amendment to the Registration Statement
to be declared effective by the Commission and any post-effective amendment to
the Conversion Application to be approved by the OTS, as applicable, and will
promptly, 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 Conversion Application, as amended, has received the
approval of the OTS; (iii) when the Holding Company Application, as amended, has
been approved by the OTS; (iv) of the receipt of any comments from the OTS or
any other governmental entity with respect to the Conversion or the transactions
contemplated by this Agreement; (v) of any request by the Commission, the OTS,
or any other governmental entity for any amendment or supplement to the
Registration Statement or the Applications or for additional information; (vi)
of the issuance by the Commission or the OTS, or any other governmental agency
of any order or other action suspending the Offerings or the use of the
Registration Statement or the Prospectus or any other filing of the Roebling
Parties under the Conversion Regulations or other applicable law, or the threat
of any such action; (vii) of the issuance by the Commission or the OTS, or any
other state 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 (viii) of the occurrence of any event
mentioned in subsection (f) below. The Roebling Parties will make every
reasonable effort to prevent the issuance by the Commission, the OTS, or any
other state authority of any order referred to in (vi) and (vii) above and, if
any such order shall at any time be issued, to obtain the lifting thereof at the
earliest possible time.
(d) The Roebling Parties will deliver to the Agent and to its counsel
two conformed copies of each of the following documents, with all exhibits: the
Applications as originally filed and of each amendment or supplement thereto,
and the Registration Statement, as originally filed and each amendment thereto.
Further, the Roebling Parties will deliver such additional copies of
15
the foregoing documents to counsel to the Agent as may be required for any NASD
filings. In addition, the Roebling Parties will also deliver to the Agent such
number of copies of the Prospectus, as amended or supplemented, as the Agent may
reasonably request.
(e) The Roebling Parties will comply in all material respects with any
and all terms, conditions, requirements and provisions with respect to the
Conversion and the transactions contemplated thereby imposed by the Commission,
the OTS, by applicable state law and regulations, and by the 1933 Act, the 1934
Act, and the rules and regulations of the Commission promulgated under such
Acts, to be complied with prior to the Closing Date; and when the Prospectus is
required to be delivered, the Roebling Parties will comply in all material
respects, at their own expense, with all requirements imposed upon them by the
OTS, the Conversion Regulations (except as modified or waived in writing by the
OTS), the Commission, by applicable state law and regulations and by the 1933
Act, the 1934 Act and the rules and regulations of the Commission promulgated
under such Acts, including, without limitation, Rule 10b-5 under the 1934 Act,
in each case as from time to time in force, so far as is necessary to permit the
continuance of sales or dealing in shares of Common Stock during such period in
accordance with the provisions hereof and the Prospectus.
(f) At any time during the period when the Prospectus is required to be
delivered, each of the Roebling Parties will inform the Agent of any event or
circumstance of which it is or becomes aware as a result of which the
Registration Statement and/or Prospectus, as then supplemented or amended, would
include an untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein not misleading. If it is
necessary, in the reasonable opinion of counsel for the Roebling Parties, to
amend or supplement the Registration Statement or the Prospectus in order to
correct such untrue statement of a material fact or to make the statements
therein not misleading in light of the circumstances existing at the time of
their use, the Roebling Parties will, at their expense, prepare, file with the
Commission and the OTS, 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 and the 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 and/or the 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, not
misleading. For the purpose of this subsection, each of the Roebling Parties
will furnish such information with respect to itself as the Agent may from time
to time reasonably request.
(g) Pursuant to the terms of the Plan, the Holding Company will
endeavor in good faith, in cooperation with the Agent, to furnish to whomever
the Agent may direct such information as may be required to register or to
qualify the Shares for offering and sale or to exempt such Shares from
registration and to exempt the Holding Company and its officers, directors and
employees from registration as broker-dealers, under the applicable securities
laws of the jurisdictions in which the Offerings will be conducted; provided,
however, that the Holding Company shall not be obligated to file any general
consent to service of process, to
16
qualify as a foreign corporation 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 Shares shall have been registered or qualified as above provided, the
Holding Company will make and file such statements and reports as are required
by the applicable regulatory authority in connection with such registration or
qualification for a period of not less than one year from the effective date of
the Registration Statement.
(h) The Holding Company will not sell or issue, contract to sell or
otherwise dispose of, for a period of 90 days after the date hereof, without the
Agent's prior written consent, any shares of Common Stock or securities
convertible into or exercisable for shares of Common Stock, other than in
connection with any plan or arrangement described in the Prospectus, provided,
however, that the Mid-Tier Holding Company shall not be prohibited from issuing
shares of Common Stock pursuant to the exercise of previously granted stock
options.
(i) For a period of three years from the date of this Agreement, the
Holding Company will furnish to the Agent, as soon as practical after such
information is available (i) a copy of each report of the Holding Company
furnished to or filed with the Commission under the 1934 Act or any national
securities exchange or system on which any class of securities of the Holding
Company is listed or quoted (including, but not limited to, reports on Forms
10-K or 10-KSB, 10-Q or 10-QSB and 8-K and all proxy statements and annual
reports to stockholders), (ii) a copy of each report of the Holding Company
mailed to holders of Common Stock or filed with the Commission, the OTS 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,
(iii) each press release and material news item and article released by the
Holding Company and/or Bank, and (iv) from time to time, such other publicly
available information concerning the Roebling Parties as the Agent may
reasonably request.
(j) The Roebling Parties will use the net proceeds from the sale of the
Common Stock in the manner set forth in the Prospectus under the caption "Use of
Proceeds."
(k) The Holding Company and the Bank will distribute the Prospectus or
other offering materials in connection with the offering and sale of the Common
Stock only in accordance with the Conversion Regulations of the OTS, the 1933
Act and the 1934 Act and the rules and regulations promulgated under such
statutes, and the laws of any state in which the shares are qualified for sale.
(l) Prior to the Closing Date, the Holding Company shall register its
Common Stock under Section 12(b) or 12(g) of the 1934 Act, and will request that
such registration statement shall be effective no later than the completion of
the Conversion. The Holding Company shall maintain the effectiveness of such
registration for not less than three years from the time of effectiveness or
such shorter period as may be required by the OTS
(m) 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 Holding Company
17
will furnish to its stockholders as soon as practicable after the end of each
fiscal year such reports and other information as are required to be furnished
to its stockholders under the 1934 Act (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).
(n) The Holding Company will report the use of proceeds of the Offering
in accordance with Rule 463 under the 0000 Xxx.
(o) The Roebling Parties will maintain appropriate arrangements for
depositing all funds received from persons mailing subscriptions for or orders
to purchase Shares 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 Holding Company's obligation to
refund payments received from persons subscribing for or ordering Shares in the
Offerings, in accordance with the Plan 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 Roebling Parties 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 Roebling Parties 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.
(p) The Holding Company will promptly take all necessary action to
register as a unitary savings and loan holding company under the HOLA.
(q) The Roebling Parties will take such actions and furnish such
information as are reasonably requested by the Agent in order for the Agent to
ensure compliance with Rule 2790 of the National Association of Securities
Dealers, Inc. ("NASD").
(r) The Roebling Parties 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 Commission, the FDIC and the OTS.
(s) The Roebling Parties shall comply with any and all terms,
conditions, requirements and provisions with respect to the Conversion and the
transactions contemplated thereby imposed by the OTS, the Conversion
Regulations, the Commission, the 1933 Act and the 1934 Act and the regulations
promulgated under such Acts, to be complied with subsequent to the Closing Date.
The Holding Company will comply with all provisions of all undertakings
contained in the Registration Statement.
(t) The Roebling Parties will not amend the Plan without notifying the
Agent and the Agent's counsel prior thereto.
18
(u) The Holding Company shall provide the Agent with any information
necessary to allow the Agent to manage the allocation process in order to permit
the Holding Company to carry out the allocation of the Shares in the event of an
oversubscription, and such information shall be accurate and reliable in all
material respects.
(v) The Holding Company will not deliver the Shares until the Roebling
Parties have satisfied or caused to be satisfied each condition set forth in
Section 10 hereof, unless such condition is waived in writing by the Agent.
(w) Immediately upon the Closing, (i) all of the issued and outstanding
shares of capital stock of the Bank shall be owned by the Holding Company, (ii)
the Holding Company shall have no direct subsidiaries other than the Bank, and
(iii) the Conversion shall have been effected in accordance with all applicable
statutes, regulations, decisions and orders; and all terms, conditions,
requirements and provisions with respect to the Conversion (except those that
are conditions subsequent) imposed by the Commission, the OTS or any other
governmental agency, if any, shall have been complied with by the Roebling
Parties in all material respects or appropriate waivers shall have been obtained
and all notice and waiting periods shall have been satisfied, waived or elapsed.
(x) Prior to the Closing Date, the Plan shall have been approved by the
voting members of the MHC and the stockholders of the Mid-Tier Holding Company
in accordance with the Plan and the Conversion Regulations and the applicable
provisions, if any, of the MHC's charter and bylaws.
(y) On or before the Closing Date, the Roebling Parties will have used
their best efforts to obtain approval for quotation of shares of the Common
Stock on the Nasdaq National Market System by the Closing Date and will use
their best efforts to maintain such quotation and will have completed all
conditions precedent to the Conversion specified in the Plan and the offer and
sale of the Shares will have been conducted in all material respects in
accordance with the Plan, the Conversion Regulations (except as modified or
waived in writing by the OTS) and with all other applicable laws, regulations,
decisions and orders, including all terms, conditions, requirements and
provisions precedent to the Conversion imposed upon any of the Roebling Parties
by the OTS, the Commission or any other regulatory authority and in the manner
described in the Prospectus.
(z) The Holding Company shall notify the Agent when funds shall have
been received for the minimum number of Shares set forth in the Prospectus.
(aa) The officers and directors of the Roebling Parties shall not sell
or transfer any shares of common stock of the Mid-Tier Holding Company or Common
Stock of the Holding Company commencing on the date hereof and continuing for a
period of 90 days following the Closing Date (the "Restricted Period"). The
Roebling Parties shall not assist such officers or directors in connection with
the sale or transfer of shares of common stock of the Mid-Tier Holding Company
or Common Stock of the Holding Company during the Restricted Period.
19
(bb) Other than as permitted by the Conversion Regulations, the HOLA,
the 1933 Act, the 1933 Act Regulations and its rules and regulations and the
laws of any state in which the Shares are registered or qualified for sale or
exempt from registration, none of the Roebling Parties will distribute any
prospectus, offering circular or other offering material in connection with the
offer and sale of the Shares.
(cc) Subsequent to the date the Registration Statement is declared
effective by the Commission and prior to the Closing Date, except as otherwise
may be indicated or contemplated therein or set forth in an amendment or
supplement thereto, none of the Roebling Parties 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
Roebling Parties, taken as a whole.
(dd) Prior to the Closing Date, the Roebling Parties 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.
(ee) The facts and representations provided to Xxxxxxx Spidi & Xxxxx,
PC by the Roebling Parties and upon which Xxxxxxx Spidi & Xxxxx, PC will base
its opinion under Section 10(b)(1) are and will be truthful, accurate and
complete.
(ff) The Holding Company shall comply with all applicable provisions of
the Xxxxxxxx-Xxxxx Act.
Section 9. Payment of Expenses. Whether or not the Conversion is
--------------------
completed or the sale and exchange of the Shares by the Holding Company is
consummated, the Roebling Parties will pay for all their expenses incident to
the performance of this Agreement, including without limitation: (a) the
preparation and filing of the Application and Registration Statement; (b) the
preparation, printing, filing, delivery and mailing of the Registration
Statement, including the Prospectus, and all documents related to the Offerings
and proxy solicitation; (c) all filing fees and expenses in connection with the
qualification or registration of the Shares for offer and sale by the Holding
Company or the Bank under the securities or "Blue Sky" laws, including without
limitation filing fees, reasonable legal fees and disbursements of counsel in
connection therewith, and in connection with the preparation of a blue sky law
survey; (d) the filing fees of the NASD related to the Agent's fairness filing
under NASD Rule 2710 and the application of the Holding Company to list its
shares; (e) fees and expenses related to the preparation of the independent
appraisal; (f) fees and expenses related to auditing and accounting services;
(g) expenses relating to advertising, temporary personnel, investor meetings and
stock information center; (h) transfer agent fees and costs of preparation and
distribution of stock certificates; and (i) Nasdaq listing fees.
20
The Roebling Parties also agree to reimburse the Agent for reasonable
out-of-pocket expenses, including legal fees and expenses, incurred by the Agent
in connection with the services hereunder. The Agent will be reimbursed for its
reasonable out-of-pocket expenses associated with its marketing efforts, up to a
maximum of $52,000 (including fees and expenses of its counsel); provided,
however, that in the event of a resolicitation, additional out-of-pocket
expenses may be paid, if such expenses are reasonable and fully discussed and
agreed upon with the Roebling Parties upon notification of a need to resolicit.
The Roebling Parties will indemnify the Agent against liabilities and expenses
(including legal fees) incurred in connection with certain claims or litigation
arising out of or based upon untrue statements or omissions contained in the
offering material for the common stock, including liabilities under the
Securities Act of 1933, as amended.
In the event that the Agent incurs any expenses on behalf of the
Roebling Parties, the Roebling Parties will pay or reimburse the Agent for such
expenses regardless of whether the Conversion is successfully completed, and
such reimbursements will not be included in the expense limitations set forth in
the following paragraph. The Roebling Parties acknowledge, however, that such
limitations may be increased by the mutual consent of the Mid-Tier Holding
Company and 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 March 31, 2004. Not later than two days prior to the Closing Date,
the Agent will provide the Bank with a detailed accounting of all reimbursable
expenses to be paid at the Closing in next day funds. In the event the Roebling
Parties determine 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 10. Conditions to the Agent's Obligations. The obligations of
--------------------------------------
the Agent hereunder and the occurrence of the Closing and the Conversion are
subject, to the extent not waived in writing by the Agent, to the condition that
all representations and warranties of the Roebling Parties herein contained are,
at and as of the commencement of the Offerings and (except to the extent such
representations and warranties speak as of an earlier date) at and as of the
Closing Date, true and correct, the condition that the Roebling Parties shall
have performed, in all material respects, all of their obligations hereunder to
be performed on or before such dates and to the following further conditions:
(a) The Registration Statement shall have been declared effective by
the Commission, the Conversion Application and Holding Company Application shall
have been approved by the OTS and no stop order or other action suspending the
effectiveness of the Registration Statement shall have been issued under the
1933 Act or proceedings therefore initiated or, to the knowledge of the Roebling
Parties, threatened by the Commission or any state authority and no order or
other action suspending the authorization for use of the Prospectus or the
consummation of the Conversion shall have been issued, or proceedings therefore
initiated
21
or, to the knowledge of the Roebling Parties, threatened by the OTS, the
Commission, or any other governmental body.
(b) At the Closing Date, the Agent shall have received:
(1) The opinion, dated as of the Closing Date, of Xxxxxxx
Spidi & Xxxxx, PC, special counsel for the Roebling Parties, and/or
local counsel acceptable to the Agent, in form and substance
satisfactory to the Agent and counsel for the Agent to the effect that:
(i) The Holding Company is a corporation duly
organized and validly existing and in good standing under the
laws of the State of New Jersey, with corporate power and
authority to own, lease and operate its properties and to
conduct the business currently conducted by the Mid-Tier
Holding Company, as described in the Prospectus, and is duly
qualified to transact business and is in good standing in New
Jersey and in each other jurisdiction in which the conduct of
its business requires such qualification, except where the
failure to qualify would not have a Material Adverse Effect.
(ii) On the date hereof, the Bank is a validly
existing federally-chartered stock savings association, and
upon consummation of the Conversion, the Bank will continue to
be a validly existing federally-chartered stock savings
association, with full power and authority to own, lease and
operate its properties and to conduct its business as
described in the Prospectus and to enter into this Agreement
and perform its obligations hereunder. The activities of the
Bank as described in the Prospectus are permitted by federal
law and the rules, regulations and practices of the FDIC and
the OTS (or valid waivers granted by the OTS from such rules,
regulations and practices); the issuance and sale of the
capital stock of the Bank to the Holding Company in the
Conversion has been duly and validly authorized by all
necessary corporate action on the part of the Holding Company
and the Bank and, upon payment therefore in accordance with
the terms of the Plan, will be validly issued, fully paid and
nonassessable and will be owned of record and beneficially by
the Holding Company, free and clear of any mortgage, pledge,
lien, encumbrance, claim or restriction. Similarly, any
subsidiaries of the Bank are validly existing corporations in
good standing in the jurisdiction of incorporation and
authorized under state and applicable federal law to conduct
the businesses in which they now engage.
(iii) The activities of the Mid-Tier Holding Company,
the MHC and the Bank, as described in the Prospectus, are
permitted under applicable federal law (or valid waivers
granted by the OTS from such law). To such counsel's actual
knowledge, each of the MHC, the Mid-Tier Holding Company and
the Bank has obtained all licenses, permits, and other
governmental authorizations that are material for the conduct
of its business, and all such licenses, permits and other
governmental authorizations are in full force and effect, and
to such counsel's
22
knowledge the Mid-Tier Holding Company and the Bank comply
therewith in all material respects.
(iv) The Bank is a member in good standing of the
Federal Home Loan Board of New York. The Bank is an insured
depository institution under the provisions of the Federal
Deposit Insurance Act, as amended, up to the maximum amount
allowed under law. To such counsel's knowledge, no proceedings
for the termination or revocation of the federal deposit
insurance of the Bank are pending or threatened.
(v) Upon consummation of the Conversion, (a) the
authorized, issued and outstanding capital stock of the
Holding Company will be within the range set forth in the
Prospectus under the caption "Capitalization," and no shares
of Common Stock have been or will be issued and outstanding
prior to the Closing Date (except for the shares issued upon
incorporation of the Holding Company); (b) the shares to be
subscribed for in the Offerings will have been duly and
validly authorized for issuance, and when issued and delivered
by the Holding Company pursuant to the Plan against payment of
the consideration calculated as set forth in the Plan, will be
duly and validly issued and fully paid and non-assessable; and
(c) the issuance of the Shares is not subject to preemptive
rights under the certificate of incorporation or bylaws of the
Holding Company, or arising or outstanding by operation of law
or under any contract, indenture, agreement, instrument or
other document known to such counsel, except for the
subscription rights under the Plan. To such counsel's
knowledge, upon issuance of the shares of Common Stock, good
title to the shares will be transferred from the Holding
Company to the purchasers thereof against payment therefore,
subject to such claims as may be asserted against the
purchasers thereof by third-party claimants (such as any
liens, charges or other claims).
(vi) The Roebling Parties have full corporate power
and authority to enter into this Agreement and to consummate
the transactions contemplated hereby and by the Plan. The
execution and delivery of this Agreement and the consummation
of the transactions contemplated hereby have been duly and
validly authorized by all necessary corporate action on the
part of the Roebling Parties; and this Agreement constitutes a
valid, legal and binding obligation of each of the Roebling
Parties, enforceable in accordance with its terms, except as
rights to indemnity and contribution thereunder may be limited
under applicable law, subject to the qualification that
enforceability thereof may be limited by (i) bankruptcy,
insolvency, moratorium, reorganization, conservatorship,
receivership or other similar laws (including the laws of
fraudulent conveyance) or judicial decisions affecting the
enforceability of creditors' rights generally, the rights of
creditors of savings banks or financial institutions, the
accounts of which are insured by the FDIC, (ii) general equity
principles (regardless of whether such enforceability is
considered in a proceeding in equity or at law) and to the
effect
23
of certain laws and judicial decisions upon the availability
of injunctive relief and enforceability of equitable
remedies, including the remedies of specific performance and
self-help, (iii) laws relating to the safe ty and soundness
of insured depository institutions, and (iv) applicable law
or public policy with respect to the indemnification and/or
contribution provisions of Sections 23A and 23B of the
Federal Reserve Act and except that no opinion need be
expressed as to the effect or availability of equitable
remedies or injunctive relief (regardless of whether such
enforceability is considered in a proceeding in equity or at
law).
(vii) The Plan has been duly adopted by the Board of
Directors of the MHC in the manner required by the Conversion
Regulations and the MHC's charter and bylaws. The Plan
complies in all material respects with the Conversion
Regulations.
(viii) The Conversion Application and the Holding
Company Application have been approved by the OTS, and no
action has been taken and, to such counsel's knowledge, none
is pending or threatened to revoke such approval or to suspend
the offering or the use of the Prospectus. Subject to the
satisfaction of any conditions set forth in such approvals, no
further approval, registration, authorization, consent or
other order of any federal or state regulatory agency, public
board or body is required in connection with the execution and
delivery of this Agreement, the offer, sale and issuance of
the Shares and the consummation of the Conversion, except as
may be required under the securities or "Blue Sky" laws of
various jurisdictions as to which no opinion need be rendered
and except as may be required under the rules and regulations
of the NASD as to which no opinion need be rendered.
(ix) The Registration Statement is effective under
the 1933 Act and to such counsel's knowledge, no stop order
suspending the effectiveness of the Registration Statement has
been issued, or proceedings for that purpose have been
instituted or threatened by the Commission.
(x) The terms and provisions of the shares of Common
Stock conform, in all material respects, to the description
thereof contained in the Registration Statement and the
Prospectus, and the form of certificates used to evidence the
shares of Common Stock are in due and proper form.
(xi) At the time the Conversion Application was
approved by the OTS, the Conversion Application (as amended or
supplemented), complied as to form in all material respects
with the requirements of the Conversion Regulations and all
applicable laws, rules and regulations and decisions and
orders of the OTS, except as modified or waived in writing by
the OTS (other than the financial statements, notes thereto,
financial tables and other financial and statistical data
included therein and the appraisal valuation and the business
plan as to which
24
counsel need express no opinion). To such counsel's
knowledge, no person has sought to obtain regulatory or
judicial review of the final action of the OTS in approving
the Applications.
(xii) At the time that the Registration Statement
became effective and as of the Closing Date, the Registration
Statement, including the Prospectus (as amended or
supplemented) (other than the financial statements, notes
thereto, financial tables or other financial and statistical
data included therein and the appraisal valuation and the
business plan as to which counsel need express no opinion),
complied as to form in all material respects with the
requirements of the 1933 Act and the rules and regulations
promulgated thereunder.
(xiii) To such counsel's knowledge, there are no
legal or governmental proceedings pending, or threatened (i)
asserting the invalidity of this Agreement, (ii) seeking to
prevent the Conversion or the offer, sale or issuance of the
Shares, or (iii) which are required to be disclosed in the
Registration Statement and Prospectus, other than those
disclosed therein.
(xiv) The information in the Prospectus under the
captions "Regulation," "Taxation," "Restrictions on
Acquisition of Roebling Financial Corp Inc.," "Description of
Capital Stock," and "The Conversion," to the extent that such
information constitutes matters of law, summaries of legal
matters, documents or proceedings, or legal conclusions, has
been reviewed by such counsel and is accurate in all material
respects.
(xv) None of the Roebling Parties are required to be
registered as an investment company under the Investment
Company Act of 1940.
(xvi) None of the Roebling Parties is in violation of
its Certificate of Incorporation or its charter, as the case
may be, or its bylaws or, to such counsel's knowledge, any
obligation, agreement, covenant or condition contained in any
contract, indenture, mortgage, loan agreement, note, lease or
other instrument to which it is a party or by which it or its
property may be bound, which violation or default would have a
Material Adverse Effect. In addition, the execution and
delivery of and performance under this Agreement by the
Roebling Parties, the incurrence of the obligations set forth
herein and the consummation of the transactions contemplated
herein will not result in (i) any violation of the provisions
of the articles of incorporation or charter, as the case may
be, or the bylaws of any of the Roebling Parties, (ii) any
violation of any applicable law, act, regulation (except that
no opinion with respect to the securities and blue sky laws of
various jurisdictions or the rules and regulations of the NASD
need be rendered), or to such counsel's knowledge, order or
court order, writ, injunction or decree, and (iii) any
violation of any obligation, agreement, covenant or condition
contained in any contract, indenture, mortgage, loan
agreement, note, lease or other instrument filed as an exhibit
to, or incorporated by reference in, the Registration
Statement or otherwise known by such
25
counsel which should have otherwise been filed as an exhibit
to the Registration Statement, which violation would have a
Material Adverse Effect.
(xvii) To such counsel's knowledge, the Roebling
Parties have obtained all material licenses, permits and other
governmental authorizations currently required for the conduct
of their businesses and all such licenses, permits and other
governmental authorizations are in full force and effect, and
the Roebling Parties are in all material respects complying
therewith.
(xviii) The Holding Company's Articles of
Incorporation and Bylaws
comply in all material respects with the laws of the State of
New Jersey. The Bank's respective Charter and Bylaws comply in
all material respects with federal law.
(xix) To such counsel's knowledge, none of the
Roebling Parties are in violation of any directive from the
OTS or the FDIC to make any material change in the method of
conducting its respective business.
(xx) To such counsel's knowledge, there are no
material contracts, indentures, mortgages, loan agreements,
notes, leases or other instruments required to be described
or referred to in the Conversion Application, the
Registration Statement or the Prospectus or required to be
filed as exhibits thereto other than those described or
referred to therein or filed as exhibits thereto in the
Conversion Application, the Registration Statement or the
Prospectus. The description in the Conversion Application,
the Registration Statement and the Prospectus of such
documents and exhibits is accurate in all material respects
and fairly presents the information required to be shown.
The Agent's counsel may rely for purposes of its own opinion on the
opinion of Xxxxxxx Spidi & Xxxxx, PC, whose opinion shall expressly authorize
such reliance. The opinion may be limited to matters governed by the laws of the
United States and the corporate laws of the State of New Jersey. In rendering
such opinion, such counsel may rely (A) as to matters involving the application
of laws of any jurisdiction other than the United States, to the extent such
counsel deems proper and specified in such opinion, upon the opinion of counsel
reasonably acceptable to the Agent, as long as such other opinion indicates that
the Agent may rely on the opinion, and (B) as to matters of fact, to the extent
such counsel deems proper, on certificates of responsible officers of the
Roebling Parties and public officials; provided copies of any such opinion(s) or
certificates of public officials are delivered to Agent together with the
opinion to be rendered hereunder by special counsel to the Roebling Parties. In
rendering such opinion, all statements contained therein "to our knowledge" or
"to our attention" or "known to us" mean the knowledge, following reasonable
investigation, of the attorneys who have worked on the
27
transactions contemplated herein. The opinion of such counsel for the Roebling
Parties shall state that it has no reason to believe that the Agent is not
reasonably justified in relying thereon.
(2) A letter of Xxxxxxx Spidi & Xxxxx, PC which shall state
that during the preparation of the Registration Statement and the
Prospectus, Xxxxxxx Spidi & Xxxxx, PC participated in conferences with
certain officers of and other representatives of the Roebling Parties,
counsel to the Agent, representatives of the independent public
accountants for the Roebling Parties and representatives of the Agent
at which the contents of the Registration Statement and the Prospectus
and related matters were discussed and has considered the matters
required to be stated therein and the statements contained therein and,
although (without limiting the opinions provided pursuant to Section
10(b)(1)), Xxxxxxx Spidi & Xxxxx, PC has not independently verified the
accuracy, completeness or fairness of the statements contained in the
Registration Statement and Prospectus, on the basis of the foregoing,
nothing has come to the attention of Xxxxxxx Spidi & Xxxxx, PC that
caused Xxxxxxx Spidi & Xxxxx, PC to believe that the Registration
Statement at the time it was declared effective by the Commission and
as of the date of such letter, contained or contains any untrue
statement of a material fact or omitted to state any 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 (it being understood that counsel need express no comment or
opinion with respect to statements, notes to financial statements,
schedules and other financial and statistical data included, or
statistical or appraisal methodology employed, in the Registration
Statement or Prospectus, the appraisal valuation or the business plan).
(3) A Blue Sky Memorandum from Xxxxxxx Spidi & Xxxxx, PC
relating to the offering, including Agent's participation therein, and
should be furnished to Agent with a copy thereof addressed to Agent or
upon which Xxxxxxx Spidi & Xxxxx, PC shall state the Agent may rely.
The Blue Sky Memorandum will relate to the necessity of obtaining or
confirming exemptions, qualifications or the registration of the common
stock under applicable state securities law.
(c) Concurrently with the execution of this Agreement, the Agent shall
receive a letter from Xxxxxxxxxx and Xxxxxxx, dated the date hereof and
addressed to the Agent, such letter (i) confirming that Xxxxxxxxxx and Babitts
is a firm of independent public accountants within the meaning of the 1933 Act
and the regulations promulgated thereunder and within the meaning of Rule 101 of
the Code of Professional Ethics of the American Institute of Certified Public
Accountants, and stating in effect that in Xxxxxxxxxx and Xxxxxxx' opinion the
consolidated financial statements of the Mid-Tier Holding Company included in
the Prospectus comply as to form in all material respects with the applicable
accounting requirements of the 1933 Act and the 1934 Act and the related rules
and regulations of the Commission thereunder; (ii) stating in effect that, on
the basis of certain agreed upon procedures (but not an audit examination in
accordance with generally accepted auditing standards) consisting of a review
(in accordance with Statement of Auditing Standards No. 100) of the latest
available unaudited consolidated interim financial statements of the Mid-Tier
Holding Company prepared by the Roebling Parties,
27
a reading of the minutes of the meetings of the Board of Directors, Executive
Committee and stockholders and Audit Committee of the Mid-Tier Holding Company
and the Bank and consultations with officers of the Mid-Tier Holding Company and
the Bank responsible for financial and accounting matters, nothing came to their
attention which caused them to believe that: (A) such unaudited consolidated
financial statements included in the Prospectus are not in conformity with the
1933 Act, applicable accounting requirements of the OTS 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 consolidated 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 decribed in the
Prospectus, there was any material increase in borrowings (defined as securities
sold under agreements to repurchase and any other form of debt other than
deposits), or non-performing loans, special mention loans or decrease in the
deposits or loan allowance, total assets, stockholders' equity or there was any
change in common stock outstanding (other than for stock option plans) at the
date of such letter as compared with amounts shown in the latest unaudited
statement of condition; or (C) there was any decrease in net income,
non-interest income, provision for loan losses or net income after provision or
increase in non-interest expense of the Mid-Tier Holding Company for the period
commencing immediately after the period covered by the latest unaudited income
statement and ended not more than three business days 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 examination referred to in its
opinion included in the Prospectus and the performance of the procedures
referred to in clause (ii) of this subsection (c), they have compared with the
general accounting records of the Mid-Tier Holding Company, which are subject to
the internal controls of the accounting system of the Mid-Tier Holding Company
and other data prepared by the Roebling Parties from accounting records, to the
extent specified in such letter, such amounts and/or percentages set forth in
the Prospectus as the Agent may reasonably request, and they have found such
amounts and percentages to be in agreement therewith (subject to rounding).
(d) At the Closing Date, the Agent shall receive a letter from
Xxxxxxxxxx and Xxxxxxx dated the Closing Date, addressed to the Agent,
confirming the statements made by its letter delivered by it pursuant to
subsection (c) of this Section 10, the "specified date" referred to in clause
(ii)(B) thereof to be a date specified in such letter, which shall not be more
than three business days prior to the Closing Date.
(e) At or prior to the Closing Date, counsel to the Agent shall have
been furnished with such documents and opinions as counsel for the Agent may
require for the purpose of enabling them to advise the Agent with respect to the
issuance and sale of the Common Stock as herein contemplated and related
proceedings, or in order to evidence the accuracy of any of the representations
and warranties, or the fulfillment of any of the conditions herein contained.
All proceedings taken by the Roebling Parties in connection with the Conversion
and sale of the Common Stock as herein contemplated shall be satisfactory in
form and substance to the Agent and its counsel.
28
(f) At the Closing Date, the Agent shall receive a certificate of the
Chief Executive Officer and Chief Financial Officer of each of the Roebling
Parties, dated the Closing Date, to the effect that: (i) they have carefully
examined the Registration Statement and at the time the Registration Statement
became authorized for final use, the Prospectus did 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; (ii) there has not been, since the respective dates
as of which information is given in the Registration Statement, any Material
Adverse Effect otherwise than as set forth or contemplated in the Registration
Statement; (iii) the representations and warranties contained in Section 6 of
this Agreement are true and correct with the same force and effect as though
made at and as of the Closing Date; (iv) the Roebling Parties have complied in
all material respects with all material agreements and satisfied all conditions
on its 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, including the conditions contained in this Section
10; (v) no stop order has been issued or, to their knowledge, is threatened, by
the Commission or any other governmental body; (vi) no stop order suspending the
Offering, the Conversion, the acquisition of all of the shares of the Bank by
the Holding Company, the transactions required under the Plan to consummate the
Conversion or the effectiveness of the Prospectus has been issued and to their
knowledge, no proceedings for any such purpose have been initiated or threatened
by the OTS, the Commission, or any other federal or state authority; (vii) to
the knowledge of the Roebling Parties, no person has sought to obtain regulatory
or judicial review of the action of the OTS in approving the Plan or to enjoin
the Conversion; and (viii) the officers and directors of the Roebling Parties
have agreed to abide by the restrictions on the sale of Common Stock set forth
in Section 8(aa).
(g) At the Closing Date, the Agent shall receive a letter from FinPro,
Inc., dated as of the Closing Date, (i) confirming that said firm is independent
of the Roebling Parties and is experienced and expert in the area of corporate
appraisals within the meaning of Title 12 of the Code of Federal Regulations,
Section 563.200(b), (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 Roebling Parties, as converted,
expressed in the appraisal as most recently updated, remains in effect.
(h) None of the Roebling Parties shall have sustained, since the date
of the latest financial statements included in the Registration Statement and
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 in the Registration Statement and the Prospectus, and since
the respective dates as of which information is given in the Registration
Statement and the Prospectus, there shall not have been any Material Adverse
Effect, that is in the Agent's reasonable judgment sufficiently material and
adverse as to make it impracticable or inadvisable to proceed with the Offerings
or the delivery of the Shares on the terms and in the manner contemplated in the
Prospectus.
29
(i) 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 financial
condition or in the earnings, business affairs or prospects of any of the
Roebling Parties independently, or the Roebling Parties taken as a whole, from
and as of the latest dates as of which such condition is set forth in the
Prospectus, except as referred to therein; (ii) the Roebling Parties shall not
have received from the OTS or any other agency 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 have a Material Adverse
Effect; (iii) none of the Roebling Parties 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 Roebling
Parties, threatened against the Roebling Parties or affecting any of their
properties wherein an unfavorable condition, results of operations or business
taken as a whole; and (v) the Common Stock 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 be the Roebling Parties.
(j) At or prior to the Closing Date, the Agent shall receive the
following: (i) a copy of the Conversion Application and a copy of the letter
from the OTS approving the Conversion Application; (ii) a copy of the order from
the Commission declaring the Registration Statement effective; (iii) an executed
copy of the certificate of incorporation of the Holding Company; (iv) a copy of
the letter from the OTS approving the Holding Company Application; (v) a
certificate from the FDIC evidencing the Bank's insurance of accounts; and (vi)
any other documents that the Agent shall reasonably request.
(k) Subsequent to the date hereof, there shall not have occurred any of
the following: (i) a suspension or limitation in trading in securities generally
on the New York Stock Exchange or American Stock Exchange or in the
over-the-counter market, or quotations halted generally on the Nasdaq Stock
Market, or minimum or maximum prices for trading have been fixed, or maximum
ranges for prices for securities have been required by either of such exchanges
or the NASD or by order of the Commission or any other governmental authority
other than temporary trading halts or limitation (A) imposed as a result of
intraday changes in the Dow Xxxxx Industrial Average, (B) lasting no longer than
until the regularly scheduled commencement of trading on the next succeeding
business-day and (C) which when combined with all other such halts occurring
during the previous five (5) business days, total less than two (2); (ii) a
general moratorium on the operations of federally-insured financial institutions
or a general moratorium on the withdrawal of deposits from commercial banks or
other federally-insured financial institutions declared by either federal or
state authorities; (iii) there shall not have occurred any material adverse
change in the financial markets in the United States or elsewhere or any
outbreak of hostilities or escalation thereof or other calamity or crisis,
including, without limitation, terrorist activities after the date hereof, the
effect of which, in the judgment of the
31
Agent, is so material and adverse as to make it impracticable to market the
Shares or to enforce contracts, including subscriptions or purchase orders, for
the sale of the Shares; or (iv) a material decline in the price of equity or
debt securities if the effect of such declaration or decline, in the Agent's
reasonable judgment, makes it impracticable or inadvisable to proceed with the
Offering or the delivery of the Shares on the terms and in the manner
contemplated in the Registration Statement and Prospectus.
(l) All such opinions, certificates, letters and documents will be in
compliance with the provisions hereof only if they are reasonably satisfactory
in form and substance to the Agent and to counsel for the Agent. Any certificate
signed by an officer of the Mid-Tier Holding Company, the Holding Company or the
Bank and delivered to the Agent or to counsel for the Agent shall be deemed a
representation and warranty by the Mid-Tier Holding Company, the Holding Company
or the Bank, as the case may be, to the Agent as to the statements made therein.
Section 11. Indemnification.
---------------
(a) The Roebling Parties jointly and severally agree to indemnify and
hold harmless the Agent, its officers, directors, agents, attorneys, servants
and employees 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, subject to the limitation set forth in the last
sentence of subsection (c) below), joint or several, that the Agent or any of
such officers, directors, agents, attorneys, servants, employees and controlling
Persons (collectively, the "Related Persons") may suffer or to which the Agent
or the Related Persons may become subject under all applicable federal and state
laws or otherwise, and to promptly reimburse the Agent and any Related Persons
upon written demand for any reasonable expenses (including reasonable fees and
disbursements of counsel and the Agent's time spent according to normal hourly
rates) incurred by the Agent or any Related Persons in connection with
investigating, preparing or defending any actions, proceedings or claims
(whether commenced or threatened) to the extent such losses, claims, damages,
liabilities or actions: (i) arise out of or are based upon any untrue statement
or alleged untrue statement of a material fact contained in the Registration
Statement (or any amendment or supplement thereto), the Prospectus (or any
amendment or supplement thereto), the Applications, or other instrument or
document of the Roebling Parties or based upon written information supplied by
any of the Roebling Parties filed in any state or jurisdiction to register or
qualify any or all of the Shares 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 agents, under the
securities laws thereof (collectively, the "Blue Sky Applications"), or any
application or other document, advertisement, or communication ("Sales
Information") prepared, made or executed by or on behalf of any of the Roebling
Parties with its consent or based upon written or oral information furnished by
or on behalf of any of the Roebling Parties, in order to qualify or register the
Shares or to claim an exemption therefrom under the securities laws thereof;
(ii) arise out of or are based upon the omission or alleged omission to state in
any of the foregoing documents or information a material fact required to be
31
stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading; (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), the preliminary
or final Prospectus (or any amendment or supplement thereto), the Applications,
any Blue Sky Applications or Sales Information or other documentation
distributed in connection with the Offerings; or (iv) result from any claims
made with respect to the accuracy, reliability and completeness of the records
identifying the Eligible Account Holders and Supplemental Eligible Account
Holders or Other Members or for any denial or reduction of a subscription or
order to purchase Common Stock, whether as a result of a properly calculated
allocation pursuant to the Plan or otherwise, based upon such records; provided,
however, that no indemnification is required under this subsection (a) to the
extent such losses, claims, damages, liabilities or actions arise out of or are
based upon any untrue material statements or alleged untrue material statements
in, or material omission or alleged material omission from, the Registration
Statement (or any amendment or supplement thereto) or the preliminary or final
Prospectus (or any amendment or supplement thereto), the Applications, the Blue
Sky Applications or Sales Information or other documentation distributed in
connection with the Conversion made in reliance upon and in conformity with
information furnished to the Roebling Parties by the Agent or its
representatives (including counsel) with respect to the Agent expressly for use
in the Registration Statement (or any amendment or supplement thereto) or
Prospectus (or any amendment or supplement thereto) under the caption "The
Conversion" except for information derived from the Prospectus. Provided
further, that the Roebling Parties will not be responsible for any loss,
liability, claim, damage or expense to the extent a court of competent
jurisdiction finds they result primarily from material oral misstatements by the
Agent to a purchaser or prospective purchaser of Shares which are not based upon
information in the Registration Statement or Prospectus, or from actions taken
or omitted to be taken by the Agent in bad faith or from the Agent's gross
negligence or willful misconduct and the Agent agrees to repay to the Roebling
Parties any amounts advanced to it by the Roebling Parties in connection with
matters as to which it is found by a court of competent jurisdiction not to be
entitled to indemnification hereunder.
(b) The Agent agrees to indemnify and hold harmless the Roebling
Parties, their directors and officers, agents, attorneys, servants and employees
and each person, if any, who controls any of the Roebling Parties within the
meaning of Section 15 of the 1933 Act or Section 20(a) of the 1934 Act against
any and all loss, liability, claim, damage or expense whatsoever (including but
not limited to settlement expenses, subject to the limitation set forth in the
last sentence of subsection (c) below), joint or several, which they, or any of
them, may suffer or to which they, or any of them, may become subject under all
applicable federal and state laws or otherwise, and to promptly reimburse the
Roebling Parties and any such persons upon written demand for any reasonable
expenses (including out-of-pocket expenses, fees and disbursements of counsel)
incurred by them in connection with investigating, preparing or defending any
actions, proceedings or claims (whether commenced or threatened) to the extent
such losses, claims, damages, liabilities or actions (i) arise out of or are
based upon any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement (or any amendment or supplement
thereto), the Applications or any Blue Sky Applications or Sales
32
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), or any Application or Sales
Information or other documentation distributed in connection with the
Conversion; provided, however, that the Agent's obligations under this Section
11(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 Applications, Registration Statement (or any
amendment or supplement thereto) or the preliminary or final Prospectus (or any
amendment or supplement thereto) in reliance upon and in conformity with
information furnished to the Roebling Parties by the Agent or its
representatives (including counsel) expressly for use under the caption "The
Conversion."
(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 11,
Section 12 or otherwise, unless the failure to give such notice promptly results
in material prejudice to the indemnifying party. An indemnifying party may
participate at its own expense in the defense of such action. In addition, if it
so elects within a reasonable time after receipt of such notice, an indemnifying
party, jointly with any other indemnifying parties receiving such notice, may
assume the defense of such action with counsel chosen by it reasonably
acceptable to the indemnified parties that are defendants in such action, unless
such indemnified parties reasonably object to such assumption on the ground that
there may be legal defenses available to them that are different from or in
addition to those available to such indemnifying party. If an indemnifying party
assumes the defense of such action, the indemnifying parties shall not be liable
for any fees and expenses of counsel for the indemnified parties incurred
thereafter in connection with such action, proceeding or claim, other than
reasonable costs of investigation. In no event shall the indemnifying parties be
liable for the fees and expenses of more than one separate firm of attorneys
(unless an indemnified party or parties shall have reasonably concluded that
there may be defenses available to it or them which are different from or in
addition to those of other indemnified parties) for all indemnified parties in
connection with any one action, proceeding or claim or separate but similar or
related actions, proceedings or claims in the same jurisdiction arising out of
the same general allegations or circumstances. No indemnifying party shall be
liable for any settlement of any action, proceeding or suit, which settlement is
effected without its prior written consent. Neither the Roebling Parties nor the
Agent shall, without the written consent of the other, settle or compromise any
claim against them or it based upon circumstances giving rise to an
indemnification claim against the other party hereunder unless such settlement
or compromise provides that the indemnified party shall be unconditionally and
irrevocably released from all liability in respect to such claim.
33
(d) The agreements contained in this Section 11 and in Section 12
hereof and the representations and warranties of the Roebling Parties 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, controlling persons, agents, attorneys, servants or employees or by
or on behalf of any of the Roebling Parties or any officers, directors,
controlling persons, agents, attorneys, servants or employees of any of the
Roebling Parties; (ii) delivery of and payment hereunder for the Shares; or
(iii) any termination of this Agreement. Notwithstanding the prior sentence,
Sections 11 and 12 hereof are subject to and limited by Section 23A of the
Federal Reserve Act, as applicable.
Section 12. Contribution.
------------
(a) In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in Section 11 is due in
accordance with its terms but is found for any reason in a final judgment by a
court to be unavailable from the Roebling Parties or the Agent, the Roebling
Parties and the Agent shall contribute to the aggregate losses, claims, damages
and liabilities of the nature contemplated by such indemnification (including
any investigation, legal and other expenses incurred in connection therewith and
any amount paid in settlement of any action, suit, or proceeding of any claims
asserted, but after deducting any contribution received by the Roebling Parties
or the Agent from persons other than the other party thereto, who may also be
liable for contribution) in such proportion so that (i) the Agent is responsible
for that portion represented by the percentage that the fees paid to the Agent
pursuant to Section 4 of this Agreement (not including expenses) ("Agent's
Fees"), less any portion of Agent's Fees paid by Agent to Assisting Brokers,
bear to the total proceeds received by the Roebling Parties from the sale of the
Shares in the Offering, net of all expenses of the Offering, except Agent's fees
and (ii) the Roebling Parties shall be responsible for the balance. If, however,
the allocation provided above is not permitted by applicable law or if the
indemnified party failed to give the notice required under Section 11 above,
then each indemnifying party shall contribute to such amount paid or payable to
such indemnified party in such proportion as is appropriate to reflect not only
such relative fault of the Roebling Parties 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 thereof), but also the relative benefits received by the Roebling
Parties on the one hand and the Agent on the other from the Offering, as well as
any other relevant equitable considerations. The relative benefits received by
the Roebling Parties on the one hand and the Agent on the other hand shall be
deemed to be in the same proportion as the total proceeds from the Offering,
except Agent's fees, net of all expenses of the Offering, received by the
Roebling Parties bear, with respect to the Agent, to the total fees (not
including expenses) received by the Agent less the portion of such fees paid by
the Agent to Assisting Brokers. 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 Roebling Parties 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 Roebling Parties and the Agent agree that it would not be just and
34
equitable if contribution pursuant to this Section 12 were determined by
pro-rata allocation or by any other method of allocation which does not take
account of the equitable considerations referred to above in this Section 12.
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 12 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 loss,
liability, claim, damage or expense or be required to contribute any amount
which in the aggregate exceeds the amount paid (excluding reimbursable expenses)
to the Agent under this Agreement less the portion of such fees paid by the
Agent to Assisting Brokers. It is understood and agreed 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 with respect to any loss or liability
arising from such misrepresentation from any person who was not found guilty of
such fraudulent misrepresentation. The duties, obligations and liabilities of
the Roebling Parties and the Agent under this Section 12 and under Section 11
shall be in addition to any duties, obligations and liabilities, which the
Roebling Parties and the Agent may otherwise have. For purposes of this Section
12, each of the Agent's and the Roebling Parties' officers, directors and
controlling persons within the meaning of the 1933 Act and the 1934 Act shall
have the same rights to contribution as the Roebling Parties and the Agent. 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
12, 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 12.
Section 13. Survival. All representations, warranties and indemnities
--------
and other statements contained in this Agreement (and in the Letter Agreement),
or contained in certificates of officers of the Roebling Parties or the Agent
submitted pursuant hereto, shall remain operative and 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 or its controlling persons, or
by or on behalf of the Roebling Parties and shall survive the issuance of the
Shares, and any legal representative, successor or assign of the Agent, any of
the Roebling Parties, and any indemnified person shall be entitled to the
benefit of the respective agreements, indemnities, warranties and
representations.
Section 14. Termination. The Agent may terminate this Agreement by
-----------
giving the notice indicated below in this Section at any time after this
Agreement becomes effective as follows:
(a) In the event (i) the Plan is abandoned or terminated by the Holding
Company; (ii) the Holding Company fails to consummate the sale of the minimum
number of Shares prior to
35
___________, 2004 in accordance with the provisions of the Plan or as required
by the Conversion Regulations and applicable law; or (iii) immediately prior to
commencement of the Offering, the Agent terminates this relationship because in
its opinion, which shall have been formed in good faith after reasonable
determination and consideration of all relevant factors, there has been a
failure to satisfactorily disclose all relevant information in the Prospectus or
the existence of market conditions which might render the sale of the Shares
inadvisable (including, but not limited to, any domestic or international event
or act or occurrence that has materially disrupted the United States securities
markets such as to make it, in the Agent's opinion, impracticable to proceed
with the Offering, or if trading on the NYSE shall have been suspended (except
that this shall not apply to the imposition of NYSE trading collars imposed on
program trading); or if the United States shall have become involved in a war or
major hostilities, or if a general banking moratorium has been declared by a
state or federal authority which has a material effect on the Bank or
Reorganization, or if a moratorium in foreign exchange trading by major
international banks or persons has been declared, or if there shall have been a
material adverse change in the financial condition, results of operations or
business of the Bank, or if the Bank shall have sustained a material or
substantial loss by fire, flood, accident, hurricane, earthquake, theft,
sabotage or other calamity or malicious act, whether or not said loss shall have
been insured, or if there shall have been a Material Adverse Effect), this
Agreement shall terminate and the Roebling Parties shall refund to each person
who has subscribed for or ordered any of the Shares the full amount which it may
have received from such person, together with interest in accordance with
Section 2 hereof and any such termination shall be without liability of any
party to any other party except as otherwise provided in Sections 2, 4, 9, 11
and 12 hereof.
(b) If any of the conditions specified in Section 10 hereof shall not
have been fulfilled when and as required by this Agreement, or by _____________,
2004, or waived in writing by the Agent, this Agreement and all of the Agent's
obligations hereunder may be canceled by the Agent by notifying the Bank of such
cancellation in writing 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, 4, 9, 11 and 12 hereof.
(c) If Agent elects to terminate this Agreement as provided in this
Section, the Mid-Tier Holding Company and the MHC shall be notified by the Agent
as provided in Section 15 hereof.
(d) If this Agreement is terminated in accordance with the provisions
of this Agreement, the Agent shall retain the advisory and management fee paid
to it pursuant to Section 4 and the Roebling Parties shall reimburse the Agent
for any of its other actual, accountable, reasonable out-of-pocket expenses
pursuant to Section 9, including without limitation, communication, legal and
travel expenses.
Section 15. Notices. All notices and other communications hereunder,
-------
except as herein otherwise specifically provided, shall be in writing and shall
be deemed to have been duly given if mailed or transmitted by any standard form
of telecommunication. Notices to Agent shall be directed to Xxxxx, Xxxxxxxx &
Xxxxx, Inc., 0000 Xxxxxxxxx Xxxx, XX, Xxxxx 000,
00
Xxxxxxx, Xxxxxxx 00000, Attention: Xx. Xxxxxxx X. Xxxxxx; notices to the
Roebling Parties shall be directed to Roebling Financial Corp, Inc., Xxxxx 000 &
Xxxxxxxx Xxxxxx, X.X. Xxx 00, Roebling, New Jersey 08554-0066, Attention: Xx.
Xxxx X. Traveo III, President and Chief Executive Officer (with a copy to
Xxxxxxx Spidi & Xxxxx, PC, 0000 Xxx Xxxx Xxxxxx, X.X., Xxxxx 000 Xxxx,
Xxxxxxxxxx, X.X. 00000, Attention: Xxxxxx X. Xxxxxxx).
Section 16. Parties. The Roebling Parties 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 Roebling Parties, when the same
shall have been given by the undersigned or any other officer of the Roebling
Parties. This Agreement shall inure to the benefit of and be binding upon the
Agent and the Roebling Parties, and their respective successors. Nothing
expressed or mentioned in this Agreement is intended or shall be construed to
give any person, firm or corporation, other than the parties hereto and their
respective successors and the controlling persons and officers and directors
referred to in Sections 11 and 12 and their heirs and legal representatives, any
legal or equitable right, remedy or claim under or in respect of this Agreement
or any provisions herein contained. It is understood and agreed that this
Agreement is the exclusive agreement among the parties, supersedes any prior
Agreement among the parties and may not be varied except by a writing signed by
all parties, except for the Letter Agreement, which is not hereby superseded.
Section 17. Partial Invalidity. In the event that any term, provision
------------------
or covenant herein or the application thereof to any circumstances 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 circumstance 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 18. Construction and Waiver of Jury Trial. This Agreement shall
-------------------------------------
be construed in accordance with the laws of the State of New York. Each of the
Roebling Parties and the Agent waives all right to trial by jury in any action,
proceeding, claim or counterclaim (whether based on contract, tort or otherwise)
related to or arising out of this Agreement.
Section 19. Closing. The closing for the sale of the Shares shall take
-------
place on the Closing Date at such location as mutually agreed upon by the Agent
and the Roebling Parties. At the closing, the Roebling Parties shall deliver to
the Agent in next day funds the commissions, fees and expenses due and owing to
the Agent as set forth in Section 4 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 Shares as contemplated
hereby and pursuant to the terms of the Prospectus.
37
Section 20. 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 21. Entire Agreement. This Agreement, including schedules and
----------------
exhibits thereto, 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
understanding, 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 is signed by any party to be charged. No course of
conduct or dealing shall be construed to modify, amend or otherwise affect any
of the provisions hereof.
[REST OF PAGE INTENTIONALLY LEFT BLANK]
38
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to us a counterpart hereof, whereupon this instrument
along with all counterparts will become a binding agr 1 eement between you and
us in accordance with its terms.
Very truly yours,
ROEBLING FINANCIAL CORP, MHC
By: ________________________________
President and Chief Executive Officer
ROEBLING FINANCIAL CORP, INC.
By: _______________________________
President and Chief Executive Officer
ROEBLING FINANCIAL CORP, INC. (New)
By: ________________________________
President and Chief Executive Officer
ROEBLING BANK
By: ________________________________
President and Chief Executive Officer
The foregoing Agency Agreement is hereby confirmed and accepted as of the date
first set forth above.
XXXXX, XXXXXXXX & XXXXX, INC.
By: ________________________________
Xxxxxxx X. Xxxxxx
Managing Director
