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EXHIBIT 1.1
CHICOPEE BANCORP, INC.
(a Massachusetts Corporation)
Up to 8,199,074 Shares
(Subject to Increase Up to 9,428,935 Shares)
COMMON STOCK (No Par Value)
Subscription Price $10.00 Per Share
AGENCY AGREEMENT
May 15, 2006
Xxxx Xxxx & Co., Inc.
00 Xxxxxxxx Xxxxxxxx
Xxxxxxx Xxxx, Xxx Xxxxxx 00000
Ladies and Gentlemen:
Chicopee Bancorp, Inc., a Massachusetts corporation (the "Company"),
and Chicopee Savings Bank, a Massachusetts-chartered savings bank in mutual form
(the "Bank") (references to the "Bank" include the Bank as a
Massachusetts-chartered savings bank in mutual form and as a
Massachusetts-chartered savings bank in stock form, as indicated by the context,
and together with the Company, the "Primary Parties"), hereby confirm, jointly
and severally, their agreement with Xxxx Xxxx & Co., Inc. (the "Agent"), as
follows:
1. THE OFFERING. On October 27, 2005, the Board of Trustees of the Bank
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adopted a Plan of Conversion (the "Plan"), which provides for the conversion of
the Bank from a Massachusetts-chartered savings bank in mutual form to a
Massachusetts-chartered savings bank in stock form (the "Conversion"), the
reorganization of the Bank into a holding company structure, and the issuance of
all of the Bank's outstanding Common Stock, as defined below, to the Company
(together with the Conversion and the Offering or Conversion Offerings, as
defined below, the "Reorganization"). Upon completion of the Reorganization, the
Bank will be a wholly-owned subsidiary of the Company. The Reorganization will
be accomplished pursuant to applicable federal law, Massachusetts law and the
rules and regulations of the Massachusetts Division of Banks (the "Division"),
the Federal Deposit Insurance Corporation (the "FDIC"), and the Federal Reserve
Board (the "FRB"). The Company is offering up to 8,199,074 shares (the "Shares"
or "Conversion Shares") of common stock, no par value per share (the "Common
Stock") (subject to an increase up to 9,428,935 shares), in (i) a subscription
offering (the "Subscription Offering"), and, if necessary; (ii) a direct
community offering (the "Direct Community Offering"); and (iii) a syndicated
community offering (the "Syndicated Community Offering"), in connection with the
Reorganization. The Plan also provides that the Company shall contribute 8.0% of
the shares of Common Stock sold in the Offering (the "Charitable Shares") to a
charitable foundation to be established by the Bank ("Charitable Foundation").
Upon the completion of the Subscription Offering, Community Offering,
and Syndicated Community Offering (collectively, the "Conversion Offerings" or
"Offering"), the purchasers of Shares in the Conversion Offerings will own 92.6%
of the outstanding Common Stock of the Company, the Charitable Foundation will
own 7.4% of the outstanding Common Stock of the
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Company. The Company will issue the Shares at a purchase price of $10.00 per
share (the "Purchase Price"). If the number of Conversion Shares is increased or
decreased in accordance with the Plan, the term "Shares" or "Conversion Shares"
shall mean such greater or lesser number, where applicable.
In the Subscription Offering, non-transferable rights to subscribe for
between 6,060,185 and 8,199,074 shares (subject to an increase up to 9,428,935
shares) of the Common Stock ("Subscription Rights") will be granted, in the
following order of priority: (1) the Bank's depositors with account balances of
at least $50.00 as of the close of business on October 8, 2004 ("Eligible
Account Holders"); (2) the Bank's depositors with account balances of at least
$50.00 as of the close of business on January 31, 2006 ("Supplemental Eligible
Account Holders"); (3) the Bank's tax-qualified employee stock ownership plan;
and (4) the Bank's employees, officers, trustees and corporators who are not
Eligible Account Holders or Supplemental Eligible Account Holders, subject to
the priorities and purchase limitations set forth in the Plan ("Other Members").
The Company may offer shares of Common Stock for which subscriptions have not
been received in the Subscription Offering in the Community Offering to members
of the general public, with preference given to natural persons residing in
Hampton County, Massachusetts and the municipalities of Belchertown, Granby and
South Xxxxxx, Massachusetts. In the event a Community Offering is held, it may
be held at any time during or immediately after the Subscription Offering.
Depending on market conditions, shares not subscribed for in the Subscription
Offering or purchased in the Community Offering may be offered in the Syndicated
Community Offering to selected members of the general public through a syndicate
of registered broker-dealers managed by the Agent ("Assisting Brokers") which
are members of the National Association of Securities Dealers, Inc. ("NASD").
It is acknowledged that the number of Shares to be sold in the Offering
may be increased or decreased as described in the Prospectus (as hereinafter
defined); that the purchase of Shares in the Offering is subject to maximum and
minimum purchase limitations as described in the Prospectus; and that the
Company may reject, in whole or in part, any subscription received in the
Community Offering and Syndicated Community Offering.
The Company has filed with the U.S. Securities and Exchange Commission
(the "Commission") a Registration Statement on Form S-1 (File No. 333-132512) in
order to register the Shares and the Charitable 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 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 accordance with Chapter 168, Section 34E of the Massachusetts
General Laws, Chapter 33 of the Massachusetts Administration Code, and 12 C.F.R.
ss. 303.161 (the "Conversion Regulations"), the Bank has filed with the Division
and with the FDIC an
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Application for Conversion (the "Conversion Application"). In connection with
the Reorganization, the Company filed with the FRB an application on Form FRY-3
(the "BHC Application," and together with the Conversion Application, the
"Applications") for approval, pursuant to Section 3(a)(1) of the Bank Holding
Company Act of 1956, as amended (the "BHC Act"), for the Company to become a
bank holding company with respect to the Bank.
Concurrently with the execution of this Agreement, the Company is
delivering to the Agent copies of the Prospectus dated May 15, 2006 of the
Company to be used in the Subscription Offering and Community Offering (if any),
and, if necessary, will deliver copies of the Prospectus and any prospectus
supplement for use in a Syndicated Community Offering and/or Public Offering, as
defined in the Prospectus (as hereinafter defined).
2. APPOINTMENT OF AGENT. Subject to the terms and conditions of this
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Agreement, the Primary Parties hereby appoint Agent as financial advisor and
selling agent to consult with and to advise and assist the Primary Parties with
respect to the sale of the Conversion Shares in the Conversion Offerings.
On the basis of the representations and warranties of the Primary
Parties contained in, and subject to the terms and conditions of, this Agreement
the Agent accepts such appointment and agrees to consult with and advise the
Company and the Bank as to the matters set forth in the letter agreement
("Letter Agreement"), dated October 31, 2005, between the Bank and Agent (a copy
of which is attached hereto as Exhibit A). It is acknowledged by the Primary
Parties that the Agent shall not be obligated to purchase any Shares and shall
not be obligated to take any action which is inconsistent with any applicable
law, regulation, decision or order. Except as provided in the last paragraph of
this Section 2, the appointment of the Agent hereunder shall terminate upon
consummation of the Offering.
If selected broker-dealers are used to assist in the sale of Conversion
Shares in the Syndicated Community Offering, the Primary Parties hereby, subject
to the terms and conditions of this Agreement, appoint the Agent to manage such
broker-dealers in the Syndicated Community Offering. On the basis of the
representations and warranties of the Primary Parties contained in, and subject
to the terms and conditions of, this Agreement, the Agent accepts such
appointment and agrees to manage the selling group of broker-dealers in the
Syndicated Community Offering.
The Agent agrees to make available to the Company for a period of one
year following the consummation of the Offering its Strategic Advisory Services
("STARS") program. If the Bank elects to participate in the STARS program, the
Agent will meet with the Bank at its request and will render general advice on
the financial matters listed in Section 9 of the Letter Agreement (but not
including (i) any in-depth merger and acquisition analyses or studies which are
available under the Agent's normal fee schedule, or (ii) advice with respect to
a specific acquisition transaction by, or sale of, the Bank or the Company). If
the Company elects to participate in the STARS program, the Agent will waive the
regular retainer fee and hourly charges for the first one-year period. The
Company would be required, however, to reimburse the Agent for its reasonable
out-of-pocket expenses incurred in conjunction with the performance of these
services. Such out-of-pocket expenses include travel, legal and other
miscellaneous expenses. The Agent would not be permitted to incur any single
expense in excess of $1,000
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pursuant to this paragraph without the prior approval of the Company. If
negotiations for a transaction conducted during the one-year period result in
the execution of a definitive agreement and/or consummation of a transaction for
which the Agent customarily would be entitled to a fee for its advisory or other
investment banking services, the Agent shall receive a contingent advisory fee
in accordance with the terms of a separate engagement letter to be entered into
with respect to such transaction. Nothing in this Agreement shall require the
Company to obtain such financial advisory services from the Agent. After the
completion of such one-year period, if the parties wish to continue the
relationship, a fee will be negotiated and an agreement with respect to specific
advisory services will be entered into at that time.
3. REFUND OF PURCHASE PRICE. In the event that the Offering is not
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consummated for any reason, including but not limited to the inability to sell
the Conversion Shares during the Offering (including any permitted extension
thereof), this Agreement shall terminate and any persons who have subscribed for
any of the Conversion Shares shall have refunded to them the full amount which
has been received from such person, together with interest, if applicable, at
the Bank's current passbook savings rate, from the date payment is received to
the date said refund is made as provided in the Prospectus. Upon termination of
this Agreement, neither the Agent nor the Primary Parties shall have any
obligation to the other except that (i) the Primary Parties shall remain liable
for any amounts due pursuant to Sections 4, 8, 10 and 11 hereof, unless the
transaction is not consummated due to the breach by the Agent of a warranty,
representation or covenant; and (ii) the Agent shall remain liable for any
amount due pursuant to Sections 10 and 11 hereof, unless the transaction is not
consummated due to the breach by the Primary Parties of a warranty,
representation or covenant.
4. FEES. In addition to the expenses specified in Section 8 hereof, as
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compensation for the Agent's services under this Agreement, the Agent has
received or will receive the following fees from the Primary Parties:
(a) An advisory and administrative services fee in the amount of
$25,000, of which $20,000 has been paid prior to the date
hereof and the remaining $5,000 shall be payable at the
Closing Date.
(b) A sales fee equal to 1.00% of the aggregate Purchase Price of
the Conversion Shares sold in the Offering, other than those
Shares sold pursuant to subparagraph C. below. No fee shall be
payable pursuant to this subsection in connection with the
sale of Shares to officers, directors, employees or immediate
family members (which term includes spouses, parents, siblings
and children who live in the same house as the officer,
director or employee) of such persons and qualified and
non-qualified employee benefit plans of the Company and the
Bank and the Charitable Shares to be issued to the Charitable
Foundation.
(c) A fee equal to 6.00% of the aggregate Purchase Price of the
Conversion Shares sold by the Agent in any Syndicated
Community Offering which fee along with the fee payable
directly by the Company to assisting brokers (including Xxxx
Xxxx) will not exceed 6.00% in the aggregate. Assisting
Brokers will not be utilized without the prior approval of the
Primary Parties, and it is agreed that Agent will manage the
Assisting Brokers in the Syndicated Offering.
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In the event of a Syndicated Offering, the Company, in consultation
with the Agent, shall be authorized to determine which NASD member firms
participate in the Syndicated Offering and the extent of their participation.
The Agent shall not commence sales of Common Stock through members of the
selling group of broker-dealers without the specific prior approval of the
Company.
In the event that the Company is required to resolicit subscribers for
Shares in the Subscription and Community Offering and the Agent is required to
provide significant additional services in connection with such a
resolicitation, the Primary Parties and the Agent shall mutually agree to the
dollar amount of additional fees due to the Agent, if any. Until any agreement
called for by this paragraph is reached, the Agent shall not accrue expenses
relating to any resolicitation in an amount that would cause the total expenses
incurred by the Agent to be greater than as set forth in Section 8 hereof
without the prior written consent of the Company or the Bank, which consent
shall not be unreasonably withheld.
If this Agreement is terminated in accordance with the provisions of
Sections 3, 9, or 13, and the sale of Shares is not consummated, the Agent shall
not be entitled to receive the fee set forth in Sections 4(a)-(c), but the Agent
will retain the advisory and administrative services fee already earned of
$20,000 and the Primary Parties will reimburse the Agent for its reasonable
expenses pursuant to Section 8.
5. CLOSING. If the minimum number of Conversion Shares required to be
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sold in the Offering on the basis of the most recently updated Appraisal (as
defined in Section 6(k)) are subscribed for at or before the termination of the
Offering, and the other conditions to the completion of the Offering are
satisfied, the Company agrees to issue the Shares on the Closing Date (as
hereinafter defined) against payment therefore by the means authorized by the
Plan and to deliver certificates evidencing ownership of the Conversion Shares
in such authorized denominations and registered in such names as may be
indicated on the subscription order forms directly to the purchasers thereof as
promptly as practicable after the Closing Date. The Closing shall be held at the
offices of special counsel to the Primary Parties, or at such other place as
shall be agreed upon among the Primary Parties and the Agent, at 10:00 a.m.,
Eastern Standard Time, on the business day selected by the Company which
business day shall be no less than two business days following the giving of
prior notice by the Company to the Agent or at such other time as shall be
agreed upon by the Primary Parties and the Agent. At the Closing, the Primary
Parties shall deliver to the Agent by wire transfer in same-day funds the
commissions, fees and expenses owing as set forth in Sections 4 and 8 hereof and
the opinions required hereby and other documents to be delivered on the Closing
Date as set forth in this Agreement shall be executed and delivered to effect
the sale of the Shares as contemplated hereby and pursuant to the terms of the
Prospectus; provided, however, that all out-of-pocket expenses to which the
Agent is entitled under Section 8 hereof shall be due and payable upon receipt
of the Company or the Bank of a written accounting therefor setting forth in
reasonable detail the expenses incurred by the Agent. The hour and date upon
which the Company shall release the Conversion Shares for delivery in accordance
with the terms hereof is referred to herein as the "Closing Date."
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The Agent shall have no liability to any party for the records or other
information provided by the Company and the Bank (or their agents) to the Agent
for use in allocating the Shares.
6. REPRESENTATIONS AND WARRANTIES OF THE PRIMARY PARTIES. The Primary
Parties jointly and severally represent and warrant to the Agent that, except as
disclosed in the Prospectus:
(a) The Bank has and, as of the Closing Date, Company will have
all such power, authority, authorizations, approvals and
orders as may be required to enter into this Agreement, to
carry out the provisions and conditions hereof and to issue
and sell the Shares as provided herein and as described in the
Prospectus, subject to the various limitations and required
approvals described therein. Subject to the receipt of
regulatory approval, the consummation of the Reorganization,
the execution, delivery and performance of this Agreement and
the Letter Agreement and the consummation of the transactions
herein contemplated have been duly and validly authorized by
all necessary corporate action on the part of the Bank and, as
of the Closing Date, will have been duly and validly
authorized by all necessary corporate action on the part of
the Company. This Agreement has been validly executed and
delivered by the Company and the Bank, and is a valid, legal
and binding obligation of the Company and the Bank,
enforceable in accordance with its terms, except to the
extent, if any, that the provisions of Sections 10 and 11
hereof may be unenforceable as against public policy, and
except to the extent that such enforceability may be limited
by bankruptcy laws, insolvency laws, or other laws affecting
the enforcement of creditors' rights generally, or the rights
of creditors of savings institutions insured by the FDIC
(including the laws relating to the rights of the contracting
parties to equitable remedies).
(b) The Plan has been reviewed by the Division and the FDIC.
(c) The Registration Statement was declared effective by the
Commission on May 12, 2006, and no stop order has been issued
with respect thereto and no proceedings therefore have been
initiated or, to the knowledge of the Primary 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 as to form in
all material respects with the 1933 Act and the regulations
promulgated thereunder and the Registration Statement,
including the Prospectus contained therein (including any
amendment or supplement thereto), any Blue
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Sky Application or any Sales Information (as such terms are
defined in Section 10 hereof) authorized by the Primary
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, and
at the time any Rule 424(b) or (c) Prospectus was filed with
the Commission and at the Closing Date referred to in Section
5, the Registration Statement, including the Prospectus
contained therein (including any amendment or supplement
thereto), and any Blue Sky Application or any Sales
Information authorized by the Primary Parties for use in
connection with the Offering will not contain an untrue
statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading;
provided, however, that the representations and warranties in
this Section 6(c) shall not apply to statements or omissions
made in reliance upon and in conformity with written
information furnished to the Primary Parties by the Agent
expressly regarding the Agent for use under the captions
"Market for the Common Stock" and "The Conversion - Plan of
Distribution and Marketing Arrangements" or written statements
or omissions from any Blue Sky Application or any Sales
Information, as defined below.
(d) At the time of filing the Registration Statement relating to
the offering of the Shares and at the date hereof, the Company
was not, and is not, an ineligible issuer, as defined in Rule
405. At the time of the filing of the Registration Statement
and at the time of the use of any issuer free writing
prospectus, as defined in Rule 433(h), the Company met the
conditions required by Rules 164 and 433 for the use of a free
writing prospectus. If required to be filed, the Company has
filed any issuer free writing prospectus related to the
offered Shares at the time it is required to be filed under
Rule 433 and, if not required to be filed, will retain such
free writing prospectus in the Company's records pursuant to
Rule 433(g) and if any issuer free writing prospectus is used
after the date hereof in connection with the offering of the
Shares the Company will file or retain such free writing
prospectus as required by Rule 433.
(e) As of the Applicable Time, neither (i) the Issuer-Represented
General Free Writing Prospectus(es) issued at or prior to the
Applicable Time and the Statutory Prospectus, all considered
together (collectively, the "General Disclosure Package"), nor
(ii) any individual Issuer-Represented Limited-Use Free
Writing Prospectus, when considered together with the General
Disclosure Package, included any untrue statement of a
material fact or omitted to state any material fact necessary
in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. The
preceding sentence does not apply to statements in or
omissions from any Prospectus included in the Registration
Statement relating to the offered Shares or any
Issuer-Represented Free Writing Prospectus based upon and in
conformity with written information furnished to the Company
by the Agent specifically for use therein. As used in this
paragraph and elsewhere in this Agreement:
(i) "Applicable Time" means each and every date when a
potential purchaser submitted a subscription or otherwise
committed to purchase Shares.
(ii) "Statutory Prospectus" as of any time, means the
Prospectus relating to the offered Shares that is
included in the Registration Statement relating to the
offered Shares immediately prior to that time, including
any document incorporated by reference therein.
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(iii) "Issuer-Represented Free Writing Prospectus" means any
"issuer free writing prospectus," as defined in Rule
433(h), relating to the offered Shares that is required
to be filed with the Commission by the Company or
required to be filed with the Commission. The term does
not include any writing exempted from the definition of
prospectus pursuant to clause (g) of Section 2(a)(10) of
the 1933 Act, without regard to Rule 172 or Rule 173.
(iv) "Issuer-Represented General Free Writing Prospectus"
means any Issuer-Represented Free Writing Prospectus that
is intended for general distribution to prospective
investors, as evidenced by its being specified in Exhibit
B to this Agreement.
(v) "Issuer-Represented Limited-Use Free Writing Prospectus"
means any Issuer-Represented Free Writing Prospectus that
is not an Issuer-Represented General Free Writing
Prospectus. The term Issuer-Represented Limited-Use Free
Writing Prospectus also includes any "bona fide
electronic road show," as defined in Rule 433, that is
made available without restriction pursuant to Rule
433(d)(8)(ii) or otherwise, even though not required to
be filed with the Commission.
(f) Each Issuer-Represented Free Writing Prospectus, as of its
date of first use and at all subsequent times through the
completion of the Offering and sale of the offered Shares or
until any earlier date that the Company notified or notifies
the Agent (as described in the next sentence), did not, does
not and will not include any information that conflicted,
conflicts or will conflict with the information contained in
the Registration Statement relating to the offered Shares,
including any document incorporated by reference therein that
has not been superseded or modified. If at any time following
the date of first use of an Issuer-Represented Free Writing
Prospectus there occurred or occurs an event or development as
a result of which such Issuer-Represented Free Writing
Prospectus conflicted or would conflict with the information
contained in the Registration Statement relating to the
offered Shares or included or would include an untrue
statement of a material fact or omitted or would omit to state
a material fact necessary in order to make the statements
therein, in the light of the circumstances prevailing at that
subsequent time, not misleading, the Company has notified or
will notify promptly the Agent so that any use of such
Issuer-Represented Free-Writing Prospectus may cease until it
is amended or supplemented and the Company has promptly
amended or will promptly amend or supplement such
Issuer-Represented Free Writing Prospectus to eliminate or
correct such conflict, untrue statement or omission. The
foregoing two sentences do not apply to statements in or
omissions from any Issuer-Represented Free Writing Prospectus
based upon and in conformity with written information
furnished to the Company by the Agent specifically for use
therein.
(g) The Conversion Application was approved by the Division on
May 12, 2006 and by the FDIC on May 15, 2006. The Conversion
Application did and will comply
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as to form in all material respects with the Conversion
Regulations and any other applicable rules and regulations of
the Division and the FDIC (except as modified or waived by the
Division or the FDIC, as applicable). At the time of the
approval and at all times subsequent thereto until the Closing
Date, the Conversion Application and the Prospectus (including
any amendment or supplement thereto), did not and does not
include any untrue statement of a material fact or omit 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;
provided, however, that representations or warranties in this
subsection (g) shall not apply to statements or omissions made
in reliance upon and in conformity with written information
furnished to the Primary Parties by the Agent expressly
regarding the Agent for use in Prospectus under the captions
"Market for the Common Stock" and "The Conversion - Plan of
Distribution and Marketing Arrangements" or written statements
or omissions from any Blue Sky Applications or any Sales
Information.
(h) No order has been issued by the Division, the FDIC or the FRB,
or any other state or federal regulatory authority, preventing
or suspending the use of the Prospectus and no action by or
before any such government entity to revoke any approval,
authorization or order of effectiveness related to the
Reorganization is pending or, to the knowledge of the Primary
Parties, threatened.
(i) The Plan has been duly adopted by the Board of Trustees of the
Bank. To the knowledge of the Primary Parties, no person has,
or at the Closing Date will have, sought to obtain review of
the final action of any state or federal regulatory authority
in approving the Plan, the Conversion, the Reorganization, or
the Applications, pursuant to the BHC Act or any other statute
or regulation.
(j) The Company has filed the BHC Application with the FRB and as
of the Closing Date, the FRB will have approved the Company's
acquisition of the Bank.
(k) RP Financial, LC., which prepared the appraisal of the
aggregate pro forma market value of the Bank on which the
Offering was based (the "Appraisal"), has advised the Primary
Parties in writing that it is independent with respect to each
of the Primary Parties within the meaning of the Conversion
Regulations.
(l) Berry, Dunn, XxXxxx & Xxxxxx, which certified the financial
statements filed as part of the Registration Statement, has
advised the Primary Parties that it is, with respect to each
of the Primary Parties, an independent certified public
accountant under the 1933 Act and the regulations promulgated
thereunder.
(m) The financial statements and the notes thereto which are
included in the Registration Statement and which are a part of
the Prospectus present fairly the financial condition and
retained earnings of the Bank as of the dates indicated and
the results of operations 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
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the Commission and accounting principles generally accepted in
the United States of America ("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 unaudited financial statements included in the
Prospectus, and as to the pro forma adjustments, the
adjustments made therein have been properly applied on the
basis described therein.
(n) Since December 31, 2005, other than as disclosed therein:
(i) there has not been any material adverse change in the
financial condition or in the earnings, capital, properties or
business affairs of any of the Primary Parties or of the
Primary Parties considered as one enterprise, whether or not
arising in the ordinary course of business; (ii) there has not
been any material change in total assets of the Bank, any
material increase in the aggregate amount of loans past due
ninety (90) days or more, or any real estate acquired by
foreclosure or loans characterized as "in substance
foreclosure;" nor has the Bank or the Company issued any
securities or incurred any liability or obligation for
borrowings other than in the ordinary course of business; and
(iii) there have not been any material transactions entered
into by any of the Primary Parties, other than those in the
ordinary course of business. The capitalization, liabilities,
assets, properties and business of the Primary Parties conform
in all material respects to the descriptions thereof contained
in the Prospectus and none of the Primary Parties has any
material liabilities of any kind, contingent or otherwise,
except as disclosed in Registration Statement or the
Prospectus.
(o) The Company is a corporation duly organized and validly
existing under the laws of the Commonwealth of Massachusetts,
with corporate power and authority to own its properties and
to conduct its business as described in the Prospectus, and is
not required to be qualified to transact business or to be in
good standing in any other jurisdiction 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
operations, capital, properties, business affairs or prospects
of the Primary Parties taken as a whole (a "Material Adverse
Effect"). As of the Closing Date, the 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; and all such licenses, permits
and governmental authorizations are in full force and effect,
and the Company will be in compliance therewith in all
material respects.
(p) The Bank is a duly organized and validly existing
Massachusetts-chartered savings bank in mutual form, and, upon
completion of the Reorganization, will become a duly organized
and validly existing Massachusetts-chartered savings bank in
stock form, in both instances duly authorized to conduct its
business as described in the Prospectus; the activities of the
Bank are permitted by the rules, regulations and practices of
the Division and the FDIC; the Bank has obtained all
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licenses, permits and other governmental authorizations
currently required for the conduct of its business except
those that individually or in the aggregate would not
materially adversely affect the financial condition of the
Primary Parties taken as a whole; all such licenses, permits
and other governmental authorizations are in full force and
effect and the Bank is and, as of the Closing Date will be, in
good standing under the laws of the Commonwealth of
Massachusetts; all of the issued and outstanding capital stock
of the Bank will be duly and validly issued and fully paid and
nonassessable; and as of the Closing Date, the Company will
directly own all of such capital stock free and clear of any
mortgage, pledge, lien, encumbrance, claim or restriction. The
Bank does not own equity securities or any equity interest in
any other business enterprise except as otherwise described in
the Prospectus.
(q) The Bank is a member of the Federal Home Loan Bank of Boston
("FHLB of Boston"), and the deposit accounts of the Bank are
insured by the FDIC up to applicable limits. Upon consummation
of the Conversion and Reorganization, the Bank will establish
a liquidation account for the benefit of the Bank's
depositors, in accordance with the Plan and the requirements
of applicable Conversion Regulations.
(r) Prior to the completion of the Reorganization, the Bank is not
authorized to issue any shares of Common Stock.
(s) No approvals are required to establish the Charitable
Foundation and to contribute the shares of Common Stock
thereto as described in the Prospectus other than those
imposed by the Division, the FDIC or the FRB. The issuance of
the Charitable Shares to the Charitable Foundation pursuant to
the Plan has been registered pursuant to the Registration
Statement.
(t) Upon consummation of the Reorganization, the authorized,
issued and outstanding equity capital of the Company will be
within the range set forth in the Prospectus under the caption
"Capitalization;" no shares of Common Stock have been or will
be issued and outstanding prior to the Closing Date; and the
shares of Common Stock to be subscribed for in the Offering
and the Charitable Shares issued to the Charitable Foundation
have been duly and validly authorized for issuance and, when
issued and delivered by the Company pursuant to the Plan
against payment of the consideration (or contributed to the
Charitable Foundation as it relates to the Charitable Shares)
calculated as set forth in the Plan and the Prospectus, will
be duly and validly issued and fully paid and nonassessable;
the issuance of the Shares and the Charitable Shares are not
subject to preemptive rights, except for the Subscription
Rights granted to the Shares pursuant to the Plan; and the
terms and provisions of the shares of Common Stock will
conform in all material respects to the description thereof
contained in the Prospectus. Upon issuance of the Shares and
the Charitable Shares, good title to the Shares and the
Charitable Shares will be transferred from the Company to the
purchasers of Shares against payment therefor (or contributed
to the Charitable Foundation as
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it relates to the Charitable Shares) in the Offering as set
forth in the Plan and the Prospectus.
(u) The Bank is not and, as of the Closing Date, the Company
will not be in violation of their respective charter 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 property, may be bound
which would result in a Material Adverse Effect. The
consummation of the transactions herein contemplated will not
(i) conflict with or constitute a breach of, or default under,
the charter or bylaws of the Bank and, as of the Closing Date,
the Company, or materially conflict with or constitute a
material breach of, or default under, any material contract,
lease or other instrument to which any of the Primary Parties
has a beneficial interest, or any applicable law, rule,
regulation or order that is material to the financial
condition of the Bank; (ii) violate any authorization,
approval, judgment, decree, order, statute, rule or regulation
applicable to the Primary Parties except for such violations
which would not have a Material Adverse Effect; or (iii)
result in the creation of any material lien, charge or
encumbrance upon any property of the Primary Parties.
(v) No material default exists, and no event has occurred which
with notice or lapse of time, or both, would constitute a
material default on the part of any of the Primary 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 material instrument
or agreement to which any of the Primary Parties is a party or
by which any of them or any of their property is bound or
affected in any respect which, in any such case, is material
to the Primary Parties individually or considered as one
enterprise, and such agreements are in full force and effect;
and no other party to any such agreements has instituted or,
to the knowledge of the Primary Parties, threatened any action
or proceeding wherein any of the Primary Parties is alleged to
be in default thereunder under circumstances where such action
or proceeding, if determined adversely to any of the Primary
Parties, would have a Material Adverse Effect.
(w) The Primary Parties have good and marketable title to all
assets which are material to the financial condition,
earnings, capital, properties and assets of the Primary
Parties and to those assets described in the Prospectus as
owned by them, free and clear of all material liens, charges,
encumbrances, restrictions or other claims, except such as are
described in the Prospectus or which do not have a Material
Adverse Effect; and all of the leases and subleases which are
material to the businesses of the Primary Parties, as
described in the Registration Statement or Prospectus, are in
full force and effect.
(x) The Primary Parties are not in material violation of any
directive from the Division, the FDIC, the FRB, the
Commission, or any other agency to make any material change in
the method of conducting their respective businesses; the
Primary Parties have conducted and are conducting their
respective businesses so
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as to comply in all respects with all applicable statutes and
regulations (including, without limitation, regulations,
decisions, directives and orders of the Division, the FDIC,
the FRB, and the Commission, except where the failure to so
comply would not reasonably be expected to result in any
Material Adverse Effect on the Primary Parties considered as
one enterprise 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 Primary Parties, threatened, which
would reasonably be expected to materially and adversely
affect the Reorganization and the Offering, 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
any Material Adverse Effect.
(y) The Primary Parties have received an opinion of their special
counsel, Xxxxxxx Xxxxxx & Aguggia LLP, with respect to the
federal income tax consequences and an opinion of Wolf &
Company, P.C., with respect to the Commonwealth of
Massachusetts income tax consequences of the Reorganization,
as described in the Registration Statement and the Prospectus;
and the facts and representations upon which such opinions are
based are truthful, accurate and complete, and none of the
Primary Parties will take any action inconsistent therewith.
(z) The Bank has timely filed or extended all required federal and
state tax returns, has paid all taxes that have become due and
payable in respect of such returns, except where permitted to
be extended, has made adequate reserves for similar future tax
liabilities, and no deficiency has been asserted with respect
thereto by any taxing authority.
(aa) 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 Primary Parties
of this Agreement, or the issuance of the Shares or the
Charitable Shares, except for the approval of the Division,
the FDIC, the FRB, and the Commission (which will have been
received as of the Closing Date) and any necessary
qualification, notification, or registration or exemption
under the securities or blue sky laws of the various states in
which the Shares are to be offered.
(bb) None of the Primary Parties has: (i) issued any securities
within the last 18 months (except for (a) notes to evidence
bank loans or other liabilities in the ordinary course of
business or as described in the Prospectus, and (b) shares of
Common Stock issued in connection with the Company's initial
capitalization); (ii) had any 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 Offering and purchases and sales of
U.S. government and agency and other securities in the
ordinary course of business; (iii) entered into a financial or
management consulting agreement in connection with the
Offering except for the Letter Agreement and as contemplated
hereunder; or (iv) engaged any
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intermediary between the Agent and the Primary Parties in
connection with the Offering, and no person is being
compensated in any manner for such services.
(cc) Neither the Primary Parties nor, to the knowledge of the
Primary Parties, any employee of the Primary Parties, has made
any payment of funds of the Primary Parties as a loan to any
person for the purchase of Conversion Shares, except for the
Company's loan to the employee stock ownership plan, the
proceeds of which will be used to purchase Conversion Shares,
or has made any other payment of funds prohibited by law, and
no funds have been set aside to be used for any payment
prohibited by law.
(dd) The Bank complies 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.
(ee) The Primary Parties have not relied upon Agent or its counsel
for any legal, tax or accounting advice in connection with the
Reorganization, except for information regarding Agent
described in Section 6(g) and information provided by Agent's
counsel described in Section 9(b)(4).
(ff) The records of Eligible Account Holders, Supplemental Eligible
Account Holders and Other Members are accurate and complete in
all material respects.
(gg) The Primary Parties comply in all material respects with
all laws, rules and regulations relating to environmental
protection, and none of the Primary Parties 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; no action, suit,
regulatory investigation or other proceeding is pending, or to
the knowledge of the Primary Parties, threatened against the
Primary Parties relating to environmental protection, nor do
the Primary Parties have any reason to believe any such
proceedings may be brought against any of them; and to the
knowledge of the Primary 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 leased by any of the Primary Parties or, to the
knowledge of the Primary Parties, in which the Bank has a
security interest.
(hh) All of the loans represented as assets in the most recent
financial statements and notes thereto of the Bank included in
the Prospectus meet or are exempt from all requirements of
federal, state and local law pertaining to lending, including,
without limitation, truth in lending (including the
requirements of 12 C.F.R. Part 226 (Regulation Z)), 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.
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(ii) None of the Primary Parties are required to be registered as
an investment company under the Investment Company Act of
1940.
(jj) As of the date hereof, the articles of organization of the
Company has been filed with the Secretary of the Commonwealth
of Massachusetts, and is effective and in force.
Any certificates signed by an officer of any of the Primary Parties and
delivered to the Agent or its counsel that refer to this Agreement shall be
deemed to be a representation and warranty by the Primary Parties to the Agent
as to the matters covered thereby with the same effect as if such representation
and warranty were set forth herein.
SECTION 6B. REPRESENTATIONS AND WARRANTIES OF THE AGENT. Agent
-------------------------------------------
represents and warrants to the Primary Parties that:
(a) Agent is a corporation and is validly existing in good standing
under the laws of the State of New Jersey with full power and authority to
provide the services to be furnished to the Primary Parties hereunder.
(b) The execution and delivery of this Agreement and the consummation
of the transactions contemplated hereby have been duly and validly authorized by
all necessary action on the part of Agent, and this Agreement and the Letter
Agreement is the legal, valid and binding agreement of 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,
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
10 or 11 hereof may be unenforceable as against public policy.
(c) Each of Agent and its employees, agents and representatives who
shall perform any of the services hereunder shall have, and until the
Reorganization is completed or terminated shall maintain all licenses, approvals
and permits necessary to perform such services.
(d) 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 Agent threatened, against Agent which, if determined adversely to
Agent, would have a material adverse effect upon the ability of Agent to perform
its obligations under this Agreement.
(e) Agent is registered as a broker/dealer pursuant to Section 15(b) of
the 1934 Act and is a member of the National Association of Securities Dealers,
Inc.
(f) Any funds received in the Offering by the Agent will be handled by
the Agent in accordance with Rule 15c2-4 under the Securities Exchange Act of
1934, as amended (the "1934 Act") to the extent applicable.
7. COVENANTS OF THE PRIMARY PARTIES. The Primary Parties hereby jointly
--------------------------------
and severally covenant with the Agent as follows:
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(a) The Company will not, at any time after the date the
Registration Statement is declared effective, file any
amendment or supplement to the Registration Statement without
providing the Agent and its counsel an opportunity to review
such amendment or supplement or file any amendment or
supplement to which amendment or supplement the Agent or its
counsel shall reasonably object. The 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 Company's responses thereto.
(b) The Company represents and agrees that, unless it obtains the
prior consent of the Agent and the Agent represents and agrees
that, unless it obtains the prior consent of the Company, it
has not made and will not make any offer relating to the
offered Shares that would constitute an "issuer free writing
prospectus," as defined in Rule 433, or that would constitute
a "free writing prospectus," as defined in Rule 405, required
to be filed with the Commission. Any such free writing
prospectus consented to by the Company and the Agent is
hereinafter referred to as a "Permitted Free Writing
Prospectus." The Company represents that it has treated or
agrees that it will treat each Permitted Free Writing
Prospectus as an "issuer free writing prospectus," as defined
in Rule 433, and has complied and will comply with the
requirements of Rule 433 applicable to any Permitted Free
Writing Prospectus, including timely Commission filing where
required, legending and record keeping. The Company need not
treat any communication as a free writing prospectus if it is
exempt from the definition of prospectus pursuant to Clause
(a) of Section 2(a)(10) of the 1933 Act without regard to Rule
172 or 173.
(c) The Primary Parties will not, at any time after the date the
Applications are approved, file any amendment or supplement to
such Applications without providing the Agent and its counsel
an opportunity to review such amendment or supplement or file
any amendment or supplement to which amendment or supplement
the Agent or its counsel shall reasonably object. The Primary
Parties will furnish promptly to the Agent and its counsel
copies of all correspondence from the Division, the FDIC or
the FRB with respect to the Applications and the Primary
Parties' responses thereto.
(d) The Primary Parties will use their best efforts to cause the
FRB to approve the 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
Applications to be approved by the Division, the FDIC or the
FRB, as applicable, and will immediately upon receipt of any
information concerning the events listed below notify the
Agent (i) when the Registration Statement, as amended, has
become effective; (ii) when each of the Applications, as
amended, have been approved by the Division, the FDIC or the
FRB, as applicable; (iii) of the receipt of any comments from
the Commission or any other governmental entity with respect
to the Reorganization or the transactions contemplated by this
Agreement; (iv) of any request by the Commission, the
Division, the FDIC, the FRB, or any other
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governmental entity for any amendment or supplement to the
Registration Statement or the Applications or for additional
information; (v) of the issuance by the Commission, the
Division, the FDIC, the FRB, or any other governmental agency
of any order or other action suspending the Conversion, the
Reorganization or the Offering or the use of the Registration
Statement or the Prospectus or any other filing of the Primary
Parties under the Conversion Regulations or the Conversion
Regulations or other applicable law, or the threat of any such
action; or (vi) of the issuance by the Commission, the
Division, the FDIC, the FRB, or any Bank 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. The Primary
Parties will make every reasonable effort to prevent the
issuance by the Commission, the Division, the FDIC, the FRB,
or any other state or federal authority of any order referred
to in (v) and (vi) above and, if any such order shall at any
time be issued, to obtain the lifting thereof at the earliest
possible time.
(e) The Primary Parties will deliver to the Agent and to its
counsel conformed copies of each of the following documents,
with all exhibits: the Conversion Application and the BHC
Application, each as originally filed and each amendment or
supplement thereto; and the Registration Statement, as
originally filed and each amendment thereto. Further, the
Primary Parties will deliver such additional copies of the
foregoing documents to counsel to the Agent as may be required
for any NASD filings. In addition, the Primary Parties will
also deliver to the Agent such number of copies of the
Prospectus, as amended or supplemented, as the Agent may
reasonably request.
(f) The Primary Parties will comply in all material respects with
any and all terms, conditions, requirements and provisions
with respect to the Reorganization and the transactions
contemplated thereby imposed by 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 statutes, to be complied with prior to or
subsequent to the Closing Date; and when the Prospectus is
required to be delivered, the Primary Parties will comply in
all material respects, at their own expense, with all material
requirements imposed upon them by the Division, the FDIC, the
FRB, the Conversion Regulations (except as modified or waived
in writing by the Division, the FDIC or the FRB, as
applicable), 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
statutes, in each case as from time to time in force, so far
as necessary to permit the continuance of sales or dealing in
shares of Common Stock during such period in accordance with
the provisions hereof and the Prospectus.
(g) The Primary Parties will also comply with any conditions
imposed by the Division, the FDIC, or the FRB in connection
with the establishment and operation of the Charitable
Foundation and use their best efforts to ensure that the
Charitable Foundation submits within the time frames required
by applicable law a request to the Internal Revenue Service to
be recognized as a tax-exempt
17
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organization under Section 501(c)(3) of the Internal Revenue
Code; the Primary Parties will take no action which will
result in the possible loss of the Charitable Foundation's tax
exempt status.
(h) Each of the Primary Parties will inform the Agent of any event
or circumstances 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
Primary 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 Primary Parties will, at their expense,
prepare, file with the Commission, the Division, the FDIC or
the FRB, as necessary under applicable federal and state rules
and regulations, 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 counsel for
the Agent 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 Primary Parties will furnish such information with respect
to itself as the Agent may from time to time reasonably
request.
(i) Pursuant to the terms of the Plan, the Company will endeavor
in good faith, in cooperation with the Agent, to register or
to qualify the Shares for offer and sale or to exempt such
Shares from registration and to exempt the Company and its
officers, directors and employees from registration as
broker-dealers, under the applicable securities laws of the
jurisdictions in which the Offering will be conducted;
provided, however, that the Company shall not be obligated to
file any general consent to service of process or to qualify
as a foreign corporation to do business in any jurisdiction in
which it is not so qualified. In each jurisdiction where any
of the Shares shall have been registered or qualified as above
provided, the Company will make and file such statements and
reports in each year as are or may be required by the laws of
such jurisdictions.
(j) The Company will not sell or issue, contract to sell or
otherwise dispose of, for a period of 90 days after the date
hereof, without the Agent's prior written consent, which
consent shall not be unreasonably withheld, any shares of
Common Stock other than in connection with any plan or
arrangement described in the Prospectus.
(k) For the period of three years from the date of this Agreement,
the Company will furnish to the Agent upon request (i) a copy
of each report of the Company furnished to or filed with the
Commission under the 1934 Act or any national
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securities exchange or system on which any class of securities
of the Company is listed or quoted, (ii) a copy of each report
of the Company mailed to holders of Common Stock or
non-confidential report filed with the Commission, the
Division, the FDIC, the FRB or any other supervisory or
regulatory authority or any national securities exchange or
system on which any class of the securities of the Company is
listed or quoted, (iii) each press release and material news
item and article released by the Company and/or Bank, and (iv)
from time-to-time, such other publicly available information
concerning the Primary Parties as the Agent may reasonably
request.
(l) The Primary 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."
(m) The Company 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, 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.
(n) Prior to the Closing Date, the Company shall register its
Common Stock under Section 12(g) of the 1934 Act, as amended,
and will request that such registration statement be effective
upon completion of the Reorganization. The Company shall
maintain the effectiveness of such registration for not less
than three years or such shorter period as permitted by the
Division, the FDIC and the FRB.
(o) For so long as the Common Stock is registered under the 1934
Act, the Company will furnish to its stockholders after the
end of each fiscal year, in the time periods prescribed by
applicable law and regulations, such reports and other
information as are required to be furnished to its
stockholders under the 1934 Act (including consolidated
financial statements of the Company and its subsidiaries,
certified by independent public accountants).
(p) The Company will report the use of proceeds of the Offering in
accordance with Rule 463 under the 1933 Act.
(q) The Primary Parties will maintain appropriate arrangements
for depositing all funds received from persons mailing
subscriptions for or orders to purchase Conversion Shares 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 Company's
obligation to refund payments received from persons
subscribing for or ordering Conversion Shares in the
Conversion 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 Primary Parties will
maintain, together with the Agent, 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
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the Primary 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.
(r) The Primary 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").
(s) The Primary 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 Division, the FDIC, and the FRB.
(t) The Company and the Bank shall comply with any and all terms,
conditions, requirements and provisions with respect to the
Reorganization and the establishment and operation of the
Charitable Foundation and the transactions contemplated
thereby imposed by the Division, the FDIC, the FRB, the BHC
Act, the Commission, the 1933 Act, the Conversion Regulations,
the Exchange Act and the regulations promulgated by the
Commission pursuant to the Exchange Act to be complied with
subsequent to the Closing Date. The Company will comply with
all provisions of all undertakings contained in the
Registration Statement.
(u) The Primary Parties will not amend the Plan without notifying
the Agent prior thereto.
(v) The Company shall provide the Agent with any information
necessary to assist with the allocation of the Conversion
Shares in the event of an oversubscription, and such
information shall be accurate and reliable in all material
respects.
(w) The Company will not deliver the Shares until the Primary
Parties have satisfied or caused to be satisfied each
condition set forth in Section 9 hereof, unless such condition
is waived in writing by the Agent.
(x) Immediately upon completion of the sale by the Company of the
Shares contemplated by the Plan and the Prospectus, (i) all of
the issued and outstanding shares of capital stock of the Bank
shall be owned by the Company, (ii) the Company shall have no
direct subsidiaries other than the Bank, and (iii) the
Reorganization 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 Reorganization (except those that are
conditions subsequent) imposed by the Commission, the
Division, the FDIC, the FRB, or any other governmental agency,
if any, shall have been complied with by the Primary 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.
(y) As of the Closing Date, the Primary Parties shall have
completed all conditions precedent to the Reorganization
(including the Conversion) in accordance with
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the Plan and shall have complied, in all material respects
with the Conversion Regulations and with any other applicable
laws, regulations (except as modified or waived in writing by
the Division, the FDIC, or the FRB), decisions and orders,
including all terms, conditions, requirements and provisions
precedent to the Reorganization imposed upon any of the
Primary Parties by the Division, the FDIC, the FRB or any
other regulatory authority as set forth in correspondence
received from the Division, the FDIC, the FRB or any other
regulatory authority.
(z) On or before the Closing Date, the Primary Parties will have
completed all conditions precedent to the Offering 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 Division or the FDIC) and with all other
applicable laws, regulations, decisions and orders, including
all terms, conditions, requirements and provisions precedent
to the Offering imposed upon any of the Primary Parties by the
Division, the FDIC, the FRB, the Commission or any other
regulatory authority and in the manner described in the
Prospectus.
8. PAYMENT OF EXPENSES. Whether or not the Reorganization is completed
-------------------
or is consummated, the Primary Parties will pay for all expenses incident to the
performance of this Agreement, including without limitation: (a) the preparation
and filing of the Applications; (b) the preparation, printing, filing, delivery
and shipment of the Registration Statement, including the Prospectus, and all
amendments and supplements thereto; (c) all filing fees and expenses in
connection with the qualification or registration of the Shares for offer and
sale by the Company 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; (e) fees and expenses related to the
preparation of the independent appraisal; and (f) the accountable out-of-pocket
expenses of the Agent. Notwithstanding the foregoing, the Primary Parties shall
not be required to reimburse Agent for more than $75,000 in legal fees (other
than legal out-of-pocket expenses), except with the prior approval of the
Primary Parties. The Agent will not incur accountable out of pocket expenses in
excess of $20,000 without the consent of the Primary Parties. In the event that
the Agent incurs any expenses on behalf of the Primary Parties, the Primary
Parties will pay or reimburse the Agent for such accountable expenses regardless
of whether the Conversion is successfully completed, and such reimbursements
will not be included in the expense limitations set forth above. The Agent will
not incur any single expense of more than $1,000 pursuant to this paragraph
without the prior approval of the Company or the Bank. The Primary Parties
acknowledge, however, that expense caps may be increased by the mutual consent
of the Primary Parties and the Agent in the event of delay in the Offering
requiring the Agent to utilize a Syndicated Community Offering, a delay as a
result of circumstances requiring material additional work by the Agent or its
counsel or an update of the financial information contained in the Registration
Statement, as amended or supplemented, to reflect a period later than that set
forth in the financial statements included in the original Registration
Statement. 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.
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9. CONDITIONS TO THE AGENT'S OBLIGATIONS. The obligations of the Agent
-------------------------------------
hereunder and the occurrence of the Closing and the Reorganization are subject
to the condition that all representations and warranties and other statements of
the Primary Parties herein contained are, at and as of the commencement of the
Offering and at and as of the Closing Date, true and correct, the condition that
the Primary Parties shall have performed all of their obligations hereunder to
be performed on or before such dates and to the following further conditions:
(a) The Conversion shall have been approved by the Division and
the FDIC. The Registration Statement shall have been declared
effective by the Commission, the BHC Application shall have
been approved by the FRB, 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 any of the Primary Parties'
knowledge, 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
Reorganization shall have been issued or proceedings therefore
initiated or, to any of the Primary Parties' knowledge,
threatened by the Division, the FDIC, the FRB, the Commission,
or any other governmental body.
(b) At the Closing Date, the Agent shall have received:
(1) The favorable opinion, dated as of the Closing Date, of
Xxxxxxx Xxxxxx & Xxxxxxx LLP, and/or local counsel acceptable to the
Agent in form and substance satisfactory to counsel for the Agent as
set forth in Exhibit C hereto. The opinion may be limited to matters
governed by the laws of the United States and the Commonwealth of
Massachusetts. In rendering such opinion regarding Massachusetts law,
such counsel may rely on local counsel reasonably acceptable to the
Agent and its counsel. In addition, 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
other counsel of good standing, 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 Primary 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 Primary Parties. The opinion of such counsel
for the Primary Parties shall state that it has no reason to believe
that the Agent is not justified in relying thereon.
(2) The letter of Xxxxxxx Xxxxxx & Aguggia LLP in form and
substance to the effect that during the preparation of the Registration
Statement and the Prospectus, Xxxxxxx Xxxxxx & Xxxxxxx LLP participated
in conferences with certain officers of and other representatives of
the Primary Parties, counsel to the Agent, representatives of the
independent public accounting firm for the Primary 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 9(b)(1)) Xxxxxxx Xxxxxx & Aguggia LLP has not
independently
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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 Xxxxxx &
Aguggia LLP that caused Xxxxxxx Xxxxxx & Xxxxxxx LLP to believe that
the Registration Statement and the Prospectus at the time it was
declared effective by the Commission and as of the date of such letter
or that the General Disclosure Package as of the Applicable Time,
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 the
financial statements, schedules and other financial and statistical
data included, or statistical or appraisal methodology employed, in the
Registration Statement, Prospectus or General Disclosure Package).
(3) The favorable opinion, dated as of the Closing Date, of
Xxxxxxx Xxxxxxxx & Wood LLP, counsel for the Agent, with respect to
such matters as the Agent may reasonably require; such opinion may
rely, as to matters of fact, upon certificates of officers and
directors of the Primary Parties delivered pursuant hereto or as such
counsel may reasonably request and upon the opinion of Xxxxxxx Xxxxxxxx
& Wood LLP.
(4) A Blue Sky Memorandum from Xxxxxxx Xxxxxxxx & Xxxx LLP
relating to the offering relating to the offering, including the
Agent's participation therein, and should be furnished to the Agent
with a copy thereof addressed to the Agent or upon which Xxxxxxx
Xxxxxxxx & Wood LLP 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 (i) Xxxxx Xxxx XxXxxx & Xxxxxx,
dated the date hereof and addressed to the Agent, such letter
confirming that Xxxxx Xxxx XxXxxx & Xxxxxx is a firm of
independent public accountants within the meaning of the Code
of Professional Ethics of the American Institute of Certified
Public Accountants, the 1933 Act and the regulations
promulgated thereunder, and no information concerning its
relationship with or interests in the Primary Parties is
required by the Applications or Item 13 of the Registration
Statement, and stating in effect that in Xxxxx Xxxx XxXxxx &
Xxxxxx'x opinion the financial statements of the Bank included
in the Prospectus comply as to form in all material respects
with the applicable accounting requirements of the 1933 Act,
the 1934 Act and the related published rules and regulations
of the Commission thereunder and the Conversion Regulations
and generally accepted accounting principles consistently
applied; (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 reading of the minutes of the meetings of the
Board of Trustees or the Board of Directors, as applicable, of
the Primary Parties, the Audit Committee of the Bank, a review
of the unaudited interim financial information as of and for
the interim period ending March 31, 2006, and consultations
with officers of the Company responsible for financial and
accounting matters, nothing came to their
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attention which caused them to believe that: (A) such
unaudited financial statements and financial information
included in the section titled "Recent Developments" are not
in conformity with 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 Recent Developments
information included in the Prospectus to a date not more than
three business days prior to the date of the Prospectus there
was any increase in non-performing loans or borrowings
(defined as advances from the FHLB of Boston, securities sold
under agreements to repurchase and any other form of debt
other than deposits) of the Bank or decrease in consolidated
total assets, allowance for loan losses, total deposits, or
surplus of the Bank or there was any decrease in consolidated
interest income, net interest income, net interest income
after the provision for loan losses, income before income
taxes, or net income of the Bank for the number of full months
commencing immediately after the Recent Developments period
and ended on the last month-end prior to the date of the
Prospectus as compared to the corresponding period in the
preceding year, which was material to the financial position
or results of operations of the Primary Parties; 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 Bank, which are subject to the internal
controls of the accounting system of the Bank and other data
prepared by the Primary Parties directly from such 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
Xxxxx Xxxx XxXxxx & Xxxxxx 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 9
and confirming that the review of the unaudited interim
financial information as of and for the interim period ending
March 31, 2006 is in accordance with Statement on Auditing
Standards No. 100, 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 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.
(f) At the Closing Date, the Agent shall receive a certificate of
the Chief Executive Officer and Chief Financial Officer of
each of the Primary Parties, dated the Closing Date, without
personal liability to the effect that: (i) they have examined
the Prospectus and at the time the Prospectus became
authorized for final use, the
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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 the 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 Prospectus, any Material Adverse Effect; (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) each
of the Primary Parties has 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 including the conditions contained in this
Section 9; (v) no stop order has been issued or, to the their
knowledge, is threatened, by the Commission or any other
governmental body; (vi) no order suspending the
Reorganization, including the Conversion and the Offering, the
acquisition of all of the shares of the Bank by the Company or
the effectiveness of the Registration Statement has been
issued and to their knowledge, no proceedings for any such
purpose have been initiated or threatened by the Division, the
FDIC, the FRB, the Commission, or any other federal or state
authority; (vii) to their knowledge, no person has sought to
obtain regulatory or judicial review of the action of the
Division in approving the Plan or to enjoin the
Reorganization.
(g) At the Closing Date, the Agent shall receive a letter from RP
Financial, LC., dated as of the Closing Date, (i) confirming
that said firm is independent of the Primary Parties and is
experienced and expert in the area of corporate appraisals
within the meaning of the Conversion Regulations, (ii) stating
in effect that the Appraisal 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 Primary Parties, as
converted, expressed in the Appraisal as most recently
updated, remains in effect.
(h) Prior to and at the Closing Date, none of the Primary Parties
shall have sustained, since the date of the latest audited
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 change, or
any development involving a prospective material change in, or
affecting the general affairs of, management, financial
position, retained earnings, long-term debt, stockholders'
equity or results of operations of any of the Primary Parties,
considered as one enterprise, otherwise than as set forth or
contemplated in the Registration Statement and the Prospectus,
the effect of which, in any such case described above, is in
the Agent's reasonable judgment sufficiently material and
adverse as to make it impracticable or inadvisable to proceed
with the Offering or the delivery of the Shares on the terms
and in the manner contemplated in the Prospectus.
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(i) Prior to and at the Closing Date: (i) in the reasonable
opinion of the Agent there shall have been no Material Adverse
Effect, from and as of the latest dates as of which such
condition is set forth in the Prospectus, except as referred
to therein; (ii) there shall have been no material transaction
entered into by the Primary Parties from the latest date as of
which the financial condition of the Primary Parties is set
forth in the Prospectus, other than transactions referred to
or contemplated therein; (iii) none of the Primary Parties
shall have received from the Division, the FRB, or the FDIC
any direction (oral or written, other than directions
applicable to all state-chartered savings banks) to make any
material change in the method of conducting their business
with which it has not complied in all material respects (which
direction, if any, shall have been disclosed to the Agent) and
which would reasonably be expected to have a Material Adverse
Effect; (iv) none of the Primary 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
material outstanding indebtedness; (v) 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 Primary Parties,
threatened against any of the Primary Parties or affecting any
of their properties wherein an unfavorable decision, ruling or
finding would reasonably be expected to have a Material
Adverse Effect; and (vi) the Shares shall have been qualified
or registered for offering and sale under the securities or
"blue sky" laws of the jurisdictions requested by the Agent.
(j) At or prior to the Closing Date, the Agent shall receive (i)
a copy of the letter from the Division approving the
Conversion Application, (ii) a copy of the letter of
non-objection from the FDIC with respect to the Conversion,
(iii) a copy of the letter from the FRB authorizing the BHC
Application, (iv) a copy of the order from the Commission
declaring the Registration Statement effective, if available,
(v) copies of certificates of existence for each of the
Primary Parties, or other writing from the Secretary of the
Commonwealth of the Commonwealth of Massachusetts or the
Division in form and substance reasonably satisfactory to the
Agent evidencing the valid existence of the Company and the
Bank as of the Closing Date, (vi) a certificate from the FDIC
evidencing the Bank's insurance of accounts, (vii) a
certificate of the FHLB of Boston evidencing the Bank's
membership therein, and (viii) any other documents that 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 (A) imposed as a result of intraday
changes in the Dow Xxxxx Industrial Average, (B) lasting no
longer than until the regularly scheduled
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commencement of trading on the next succeeding business-day,
and (C) which, when combined with all other such halts
occurring during the previous five business days, total less
than three; (ii) a general moratorium on the operations of
savings banks or other state- or federally-insured financial
institutions or general moratorium on the withdrawal of
deposits from savings banks or other state- or
federally-insured financial institutions declared by either
federal or state authorities; (iii) any material adverse
change in the financial markets in the United States; or (iv)
any outbreak of hostilities or escalation thereof or other
calamity or crisis, including, without limitation, terrorist
activities after the date hereof, the effect of any of (i)
through (iv) herein, in the judgment of the Agent, is so
material and adverse as to make it impracticable market the
Shares or to enforce contracts, including subscriptions or
purchase orders, for the sale of the Shares.
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 of counsel for the Agent. Any certificate
signed by an officer of the Company or the Bank and delivered to the Agent or to
counsel for the Agent shall be deemed a representation and warranty by the
Company or the Bank, as the case may be, to the Agent as to the statements made
therein. If any condition to the Agent's obligations hereunder to be fulfilled
prior to or at the Closing Date is not fulfilled, the Agent may terminate this
Agreement (provided that if this Agreement is so terminated but the sale of
Shares is nevertheless consummated, the Agent shall be entitled to the
compensation provided for in Section 4 hereof) or, if the Agent so elects, may
waive any such conditions which have not been fulfilled or may extend the time
of their fulfillment.
10. INDEMNIFICATION.
---------------
(a) The Primary 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 paragraph (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)
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 the allocation of the Shares in accordance
with the Plan generally; (ii) arise out of or are based upon
any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement (or any amendment
or supplement thereto), the Prospectus (or any amendment or
supplement thereto), any Issuer-Represented Free Writing
Prospectus, the Applications, or any blue sky application or
other instrument or document of the Primary Parties or based
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upon written information supplied by any of the Primary
Parties filed in any state or jurisdiction to register or
qualify any or all of the Shares 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 Primary Parties with its consent or based
upon written information furnished by or on behalf of any of
the Primary Parties, whether or not filed in any jurisdiction
in order to qualify or register the Shares under the
securities laws thereof; (iii) arise out of or are based upon
the omission or alleged omission to state in any of the
foregoing documents or information, a material fact required
to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were
made, not misleading; (iv) arise from any theory of liability
whatsoever relating to or arising from or based upon the
Registration Statement (or any amendment or supplement
thereto), the Prospectus (or any amendment or supplement
thereto), any Issuer-Represented Free Writing Prospectus, the
Applications, any Blue Sky Applications or Sales Information
or other documentation distributed in connection with the
Offering; or (v) result from any claims made with respect to
the accuracy, reliability and completeness of the records of
Eligible Account Holders, Supplemental Eligible Account
Holders and 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 paragraph (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 Prospectus (or any amendment or supplement
thereto), any Issuer-Represented Free Writing Prospectus, the
Applications, the Blue Sky Applications or Sales Information
or other documentation distributed in connection with the
Reorganization made in reliance upon and in conformity with
written information furnished to the Primary 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 captions "Market
for the Common Stock" and "The Conversion - Plan of
Distribution and Marketing Arrangements;" provided, further,
that the Primary Parties will not be responsible for any loss,
liability, claim, damage or expense to the extent that a court
of competent jurisdiction finds that they result primarily
from material oral misstatements by the Agent to a 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 Primary Parties any amounts advanced to
it by the Primary 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 Primary
Parties, their directors and officers, agents, servants and
employees and each person, if any,
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who controls any of the Primary 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
paragraph (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 Primary Parties and
any such persons upon written demand for any reasonable
expenses (including 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 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
of supplement thereto), any Issuer-Represented Free Writing
Prospectus, the Applications or any Blue Sky Applications or
Sales Information or 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; provided, however, that
the Agent's obligations under this Section 10(b) shall exist
only if and only to the extent that such untrue statement or
alleged untrue statement was made in, or such material fact or
alleged material fact was omitted from, the Registration
Statement (or any amendment or supplement thereto), the
Prospectus (or any amendment or supplement thereto), any blue
skies applications or sales information in reliance upon and
in conformity with written information furnished to the
Primary Parties by the Agent or its representatives (including
counsel) expressly for use under the captions "Market for the
Common Stock" and "The Conversion - Plan of Distribution and
Marketing Arrangements."
(c) Each indemnified party shall give prompt written notice to
each indemnifying party of any action, proceeding, claim
(whether commenced or threatened), or suit instituted against
it in respect of which indemnity may be sought hereunder, but
failure to so notify an indemnifying party shall not relieve
it from any liability which it may have on account of this
Section 10, Section 11 or otherwise. An indemnifying party may
participate at its own expense in the defense of such action.
In addition, if it so elects within a reasonable time after
receipt of such notice, an indemnifying party, jointly with
any other indemnifying parties receiving such notice, may
assume 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
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(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. The Company shall be liable for any settlement
of any claim against the Agent (or its directors, officers,
employees, affiliates or controlling persons), made with the
Company's consent, which consent shall not be unreasonably
withheld. The Company shall not, without the written consent
of the Agent, settle or compromise any claim against it based
upon circumstances giving rise to an indemnification claim
against the Company hereunder unless such settlement or
compromise provides that the Agent and the other indemnified
parties shall be unconditionally and irrevocably released from
all liability in respect of such claim.
(d) The agreements contained in this Section 10 and in Section 11
hereof and the representations and warranties of the Primary
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 or employees or by or on behalf of
any of the Primary Parties or any officers, directors,
controlling persons, agents or employees of any of the Primary
Parties; (ii) delivery of and payment hereunder for the
Shares; or (iii) any termination of this Agreement.
11. CONTRIBUTION.
------------
(a) In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in
Section 10 is due in accordance with its terms but is found in
a final judgment by a court to be unavailable from the Primary
Parties or the Agent, the Primary Parties and the Agent shall
contribute to the aggregate losses, claims, damages and
liabilities of the nature contemplated by such indemnification
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 Primary Parties from the sale
of the Conversion Shares in the Conversion Offerings, net of
all expenses of the Offerings except Agent's Fees, and (ii)
the Primary 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 10 above, then each indemnifying
party shall contribute to such amount paid or payable by such
indemnified party in such proportion as is appropriate to
reflect not only such relative fault of the Primary 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 Primary Parties on the one hand and the Agent on the other
from the Offering, as well as any other relevant
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equitable considerations. The relative benefits received by
the Primary 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 Conversion Offerings, net of all expenses of
the Conversion Offerings except Agent's Fees, received by the
Primary 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
Primary 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 Primary Parties and the Agent agree
that it would not be just and equitable if contribution
pursuant to this Section 11 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 11. The amount paid or payable by an
indemnified party as a result of the losses, claims, damages
or liabilities (or action, proceedings or claims in respect
thereof) referred to above in this Section 11 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 from any person who was not found guilty of such
fraudulent misrepresentation. For purposes of this Section 11,
each of the Agent's and the Primary Parties' officers and
directors and each person, if any, who controls the Agent or
any of the Primary Parties within the meaning of the 1933 Act
and the 1934 Act shall have the same rights to contribution as
the Primary 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 11, 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 11.
12. SURVIVAL. All representations, warranties and indemnities and other
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statements contained in this Agreement, and Section 11 of the Letter Agreement,
or contained in certificates of officers of the Primary 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
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of the Primary Parties and shall survive the issuance of the Shares, and any
legal representative, successor or assign of the Agent, any of the Primary
Parties, and any indemnified person shall be entitled to the benefit of the
respective agreements, indemnities, warranties and representations.
13. TERMINATION. Agent may terminate this Agreement by giving the
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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
Company; (ii) the Company fails to consummate the sale of the
minimum number of the Conversion Shares by December 31, 2006
in accordance with the provisions of the Plan or as required
by the Conversion Regulations and applicable law; (iii) the
Agent terminates this relationship because there has been a
material adverse change in the financial condition or
operations of the Primary Parties, considered as one
enterprise, since the date of the latest financial statements
included in the Prospectus; or (iv) 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 specified
in Section 9(k) which might render the sale of the Shares
inadvisable, this Agreement shall terminate and no party to
this Agreement shall have any obligation to the other
hereunder, except as set forth in Sections 3, 4, 8, 10 and 11
hereof.
(b) If any of the conditions specified in Section 9 shall not have
been fulfilled when and as required by this Agreement, or by
the Closing Date, 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 3, 4, 8, 10 and 11 hereof.
(c) If Agent elects to terminate this Agreement as provided in
this Section, the Bank shall be notified by the Agent as
provided in Section 14 hereof.
(d) If this Agreement is terminated in accordance with the
provisions of this Agreement, the Primary Parties shall pay
the Agent the fees earned pursuant to Section 4 and will
reimburse the Agent for its accountable expenses pursuant to
Section 8.
14. NOTICES. All notices and other communications hereunder shall be in
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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
Xxxx Xxxx & Co. Inc., 00 Xxxxxxxx Xxxxxxxx, Xxxxxxx Xxxx, Xxx Xxxxxx 00000,
Attention: Xxxxx Xxxxxxx (with a copy to V. Xxxxxx Xxxxxxx, Esq., Xxxxxxx
Xxxxxxxx & Wood LLP, 0000 Xxxxxxxxxxxx Xxxxxx, XX, Xxxxx 000, Xxxxxxxxxx, X.X.
00000); notices to the Primary Parties shall be directed to Chicopee Savings
Bank, 00 Xxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxxxxx 00000, Attention: Xxxxxxx X.
Xxxxxx,
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President and Chief Executive Officer (with copies to Xxxxxxxx X.X. Spaccasi,
Esq. and Xxxx X. Xxxxx, Esq., Xxxxxxx Xxxxxx & Aguggia LLP, 0000 Xxxxxxxxx
Xxxxxx, XX, Xxxxxxxxxx, XX 00000.
15. PARTIES. This Agreement shall inure to the benefit of and be
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binding upon the Agent and the Primary 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 10 and 11 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.
16. PARTIAL INVALIDITY. In the event that any term, provision or
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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.
17. CONSTRUCTION. This Agreement shall be construed in accordance with
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the laws of the State of New Jersey.
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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 agreement between
you and us in accordance with its terms.
Very truly yours,
CHICOPEE SAVINGS BANK
By: /s/ Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx
President and Chief Executive Officer
CHICOPEE BANCORP, INC.
By: /s/ Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx
President and Chief Executive Officer
The foregoing Agency Agreement is hereby confirmed and accepted as of
the date first set and above written.
XXXX XXXX & CO., INC.
By: /s/ Xxxxx X. Xxxxxxx
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Managing Director
