DELANCO BANCORP, INC.
(a Federal Corporation)
Up to 931,500 Shares
(Subject to Increase Up to 1,071,225 Shares)
COMMON STOCK ($0.01 Par Value)
Subscription Price $10.00 Per Share
AGENCY AGREEMENT
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February 12, 2007
Xxxx Xxxx & Co., Inc.
00 Xxxxxxxx Xxxxxxxx
Xxxxxxx Xxxx, Xxx Xxxxxx 00000
Ladies and Gentlemen:
Delanco Bancorp, Inc., a federal corporation (the "Holding Company"),
Delanco MHC, a federal mutual holding company (the "MHC") and Delanco Federal
Savings Bank, a federally chartered stock savings bank (the "Bank")
(collectively, the "Primary Parties") hereby confirm jointly and severally,
their agreement with Xxxx Xxxx & Co., Inc. ("Agent"), as follows:
1. THE OFFERING. On November 20, 2006, the Board of Directors of the
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Holding Company adopted a Plan of Stock Issuance (the "Plan"), which provides
for the offering by the Holding Company of up to 49% of the Holding Company's
common stock, par value $0.01 per share (the "Common Stock") in (i) a
subscription offering (the "Subscription Offering"), and, if necessary, (ii) a
direct community offering (the "Direct Community Offering") and, if necessary
(iii) a syndicated community offering (the "Syndicated Community Offering"). The
shares of Common Stock to be sold by the Holding Company in the Offerings (as
defined below) are hereinafter called the "Shares" or "Conversion Shares."
Upon the completion of the Subscription Offering, Community Offering,
and Syndicated Community Offering (collectively, the "Offerings" or "Offering"),
the purchasers of Shares in the Offerings will own 45% of the outstanding Common
Stock and the MHC will own 55% of the outstanding Common Stock. The Holding
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 688,500 and 931,500 shares (subject to an increase up to 1,071,225
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 31, 2005 ("Eligible
Account Holders"); (2) the Bank's tax-qualified employee plans; (3) the Bank's
depositors with account balances of at least $50.00 as of the close of business
on December 31, 2006 ("Supplemental Eligible Account Holders"); and (4) the
Bank's depositors with account balances of at least $50.00 on January 31, 2007
("Other Member Record Date") and borrowers of the Bank as of November 14, 1994
whose borrowings remained outstanding as of Other Member Record Date (other than
Eligible Account Holders and Supplemental Eligible Account Holders) (the "Other
Members"), subject to the priorities and purchase limitations set forth in the
Plan. The Holding 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 Burlington County, New Jersey. Shares may also be
reserved in the Community Offering for institutional investors. 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 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
Holding Company may reject, in whole or in part, any subscription received in
the Community Offering and Syndicated Community Offering.
The Holding Company has filed with the U.S. Securities and Exchange
Commission (the "Commission") a Registration Statement on Form SB-2 (File No.
333-139339) in order to register the Shares under the Securities Act of 1933, as
amended (the "1933 Act"), and has filed such amendments thereto as have been
required to the date hereof (the "Registration Statement"). The prospectus, as
amended, included in the Registration Statement at the time it initially became
effective is hereinafter called the "Prospectus," except that if any prospectus
is filed by the Holding Company pursuant to Rule 424(b) or (c) of the
regulations of the Commission under the 1933 Act differing from the prospectus
included in the Registration Statement at the time it initially becomes
effective, the term "Prospectus" shall refer to the prospectus filed pursuant to
Rule 424(b) or (c) from and after the time said prospectus is filed with the
Commission and shall include any supplements and amendments thereto from and
after their dates of effectiveness or use, respectively.
In connection with the Offering, the Holding Company filed with the
Office of Thrift Supervision (the "OTS"), pursuant to Title 12, Parts 575 and
563b of the Code of Federal Regulations (the "Conversion Regulations"), an
Application for Approval of a Minority Stock Issuance by a Savings Association
Subsidiary of a Mutual Holding Company on Form MHC-2, including exhibits and the
Prospectus, and has filed amendments thereto as required by the OTS (as so
amended, the "MHC-2").
Concurrently with the execution of this Agreement, the Holding Company
is delivering to Agent copies of the Prospectus dated February 9, 2007 of the
Holding 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).
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2. APPOINTMENT OF AGENT. Subject to the terms and conditions of this
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Agreement, the Primary Parties hereby appoint Agent as their financial advisor
and marketing agent to utilize its best efforts to solicit subscriptions for the
Shares and to advise and assist the Primary Parties with respect to the sale of
the Shares in the 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, Agent accepts such appointment and agrees to consult with and advise
the MHC, the Holding Company and the Bank as to the matters set forth in the
letter agreement ("Letter Agreement"), dated July 11, 2006, between the Holding
Company and Agent (a copy of which is attached hereto as EXHIBIT A). It is
acknowledged by the Primary Parties that 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 Agent
hereunder shall terminate upon consummation of the Offering.
If selected broker-dealers are used to assist in the sale of Shares in
the Syndicated Community Offering, the Primary Parties hereby, subject to the
terms and conditions of this Agreement, appoint 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, Agent accepts such appointment
and agrees to manage the selling group of broker-dealers in the Syndicated
Community Offering.
Agent agrees to make available to the Holding Company for a period of
three (3) years following the consummation of the Offering its Strategic
Advisory Services ("STARS") program. If the Bank elects to participate in the
STARS program, 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 Agent's normal fee schedule, or (ii) advice
with respect to a specific acquisition transaction by, or sale of, the Bank or
the Holding Company). If the Holding Company elects to participate in the STARS
program, Agent will waive the regular retainer fee and hourly charges for the
first three-year period. The Holding Company would be required, however, to
reimburse 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. Agent would not be
permitted to incur any single expense in excess of $1,000 pursuant to this
paragraph without the prior approval of the Holding Company. If negotiations for
a transaction conducted during the three-year period result in the execution of
a definitive agreement and/or consummation of a transaction for which Agent
customarily would be entitled to a fee for its advisory or other investment
banking services, 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 Holding Company
to obtain such financial advisory services from Agent. After the completion of
such three-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
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the Shares during the Offering (including any permitted extension thereof), this
Agreement shall terminate and any persons who have subscribed for any of the
Shares shall have refunded to them the full amount which has been received from
such person, together with interest 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 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 Agent of a warranty, representation or covenant; and (ii) 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,
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as compensation for Agent's services under this Agreement, Agent has received or
will receive the following fees from the Primary Parties:
a. A total inclusive success fee for advisory and marketing
services of $150,000
b. A fee equal to 1.00% of the aggregate Purchase Price of the
Shares sold by Agent in any Syndicated Community Offering
which fee along with the fee payable directly by the Holding
Company to assisting brokers other than Agent 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.
In the event that the Holding Company is required to resolicit
subscribers for Shares in the Subscription and Direct Community Offering and
Agent is required to provide significant additional services in connection with
such a resolicitation, the Primary Parties and Agent shall mutually agree to the
dollar amount of additional fees due to Agent, if any. Until any agreement
called for by this paragraph is reached, Agent shall not accrue expenses
relating to any resolicitation in an amount that would cause the total expenses
incurred by Agent to be greater than as set forth in Section 8 hereof without
the prior written consent of the Holding 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, Agent shall not be entitled to receive the fee set forth
in Sections 4(a)-(b), but Agent will be entitled to payment of $25,000 for its
advisory and administration services and the Primary Parties will reimburse
Agent for its reasonable expenses pursuant to Section 8 and paragraph 4 of the
Letter Agreement.
5. CLOSING. If the minimum number of Shares required to be sold in
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the Offering on the basis of the most recently updated Appraisal (as defined in
Section 6(j)) are subscribed for at or before the termination of the Offering,
and the other conditions to the completion of the Offering are satisfied, the
Holding 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 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
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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 Agent, at 10:00 a.m., Eastern Standard
Time, on the business day selected by the Holding Company which business day
shall be no less than two business days following the giving of prior notice by
the Holding Company to Agent or at such other time as shall be agreed upon by
the Primary Parties and Agent. At the Closing, the Primary Parties shall deliver
to 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 deemed reasonably necessary by Agent shall be executed and
delivered to effect the sale of the Shares as contemplated hereby and pursuant
to the terms of the Prospectus. The Holding Company shall notify Agent when
funds shall have been received for the minimum number of shares of the Common
Stock. The hour and date upon which the Holding Company shall release the Shares
for delivery in accordance with the terms hereof is referred to herein as the
"Closing Date."
6. REPRESENTATIONS AND WARRANTIES OF THE PRIMARY PARTIES. The Primary
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Parties jointly and severally represent and warrant to Agent that, except as
disclosed in the Prospectus:
(a) The Bank, the MHC and the Holding Company 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
Offering, the execution, delivery and performance of this Agreement and the
consummation of the transactions herein contemplated have been duly and validly
authorized by all necessary corporate action on the part of the Bank, the MHC
and the Holding Company as of the Closing Date. This Agreement has been validly
executed and delivered by the Holding Company, the MHC and the Bank, and is a
valid, legal and binding obligation of the Holding Company, the MHC 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 approved by the OTS.
(c) The Registration Statement was declared effective by the
Commission on February 9, 2007; and no stop order has been issued with respect
thereto and no proceedings therefore have been initiated or, to the best
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 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,
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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
Offerings 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 Agent expressly
regarding Agent for use under the captions "Market for the Common Stock" and
"The Stock Offering--Marketing Arrangements" or written statements or omissions
from any sales information or information filed pursuant to state securities or
blue sky laws or regulations regarding Agent.
(d) At the time of filing the Registration Statement relating to
the Offering and at the date hereof, the Holding 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 Holding Company met the conditions
required by Rules 164 and 433 for the use of a free writing prospectus. If
required to be filed, the Holding 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 Holding 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 Holding 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 Holding Company by 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 SEC by
the Holding Company or required to be filed with the SEC. The term
does not include any writing exempted from the definition of
prospectus pursuant to clause (a) 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.
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 Conversion.
(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
Holding Company notified or notifies 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 Holding Company has notified or will notify
promptly Agent so that any use of such Issuer-Represented Free-Writing
Prospectus may cease until it is amended or supplemented and the Holding 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 Primary Parties by Agent specifically for use therein.
(g) The MHC-2, including the Prospectus, was approved by the OTS
on February 12, 2007, and at all times subsequent thereto until the Closing
Date, the MHC-2, including the Prospectus, did and will comply as to form in all
material respects with the Conversion Regulations and any other applicable rules
and regulations of the OTS (except as modified or waived by the OTS). At the
time of the approval and at all times subsequent thereto until the Closing Date,
the MHC-2, including 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
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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 Agent expressly regarding Agent for use in Prospectus contained in the MHC-2
under the captions "Market for the Common Stock" and "The Stock Offering
--Marketing Arrangements" or written statements or omissions from any sales
information or information filed pursuant to state securities or blue sky laws
or regulations regarding Agent.
(h) No order has been issued by the OTS, the Commission, or any
state 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 Offering is pending or,
to the best knowledge of the Primary Parties, threatened.
(i) The Plan has been duly adopted by the Board of Directors of
the Holding Company. To the best knowledge of the Primary Parties, no person
has, or at the Closing Date will have, sought to obtain review of the final
action of the OTS in approving the Plan, the Offering, or the MHC-2, pursuant to
the HOLA or any other statute or regulation.
(j) Xxxxxx & Company, Inc. (the "Appraiser"), which prepared the
appraisal of the aggregate pro forma market value of the Holding Company and the
Bank on which the Offerings were 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.
(k) Xxxxxxxx, Xxxxx & Cha, P.C., which certified the financial
statements filed as part of the Registration Statement and the MHC-2, has
advised the Primary Parties that it is an independent public accounting firm
within the meaning of the Code of Ethics of the American Institute of Certified
Public Accountants (the "AICPA"), that it is registered with the Public Company
Accounting Oversight Board ("PCAOB") and that it is, with respect to each of the
Primary Parties, an independent certified public accountant within the meaning
of 12 C.F.R. Section 563c.3 and under the 1933 Act and the Regulations
promulgated thereunder.
(l) The consolidated financial statements and the notes thereto
which are included in the Registration Statement and which are a part of the
Prospectus present fairly the consolidated financial condition and retained
earnings of the Holding Company 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 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.
(m) Since the respective dates as of which information is given
in the Registration Statement, including the Prospectus, other than as disclosed
therein: (i) there has not been any material adverse change in the financial
8
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 Holding Company, 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 Holding 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.
(n) The Holding Company is a corporation duly organized and in
good standing under the federal laws of the United States, with corporate
authority to own its properties and to conduct its business as described in the
Prospectus, and is qualified to transact business and in good standing in each
jurisdiction in which the conduct of business requires such qualification unless
the failure to qualify in one or more of such jurisdictions would not have a
material adverse effect on the financial condition, earnings, capital,
properties or business affairs of the Primary Parties. The Holding Company has
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 materially adversely affect the financial condition,
earnings, capital, assets, properties or business of the Primary Parties taken
as a whole; and all such licenses, permits and governmental authorizations are
in full force and effect, and the Holding Company is in compliance therewith in
all material respects.
(o) The MHC is duly organized and is validly existing as a
federally chartered mutual holding company under the laws of the United States,
duly authorized to conduct its business and own its property as described in the
Registration Statement and the Prospectus; the MHC has 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 materially
adversely affect the financial condition, earnings, capital, assets or
properties of the Primary Parties taken as a whole; all such licenses, permits
and governmental authorizations are in full force and effect and the MHC is in
compliance therewith in all material respects.
(p) The MHC does not own any equity securities or any equity
interest in any business enterprise except as described in the Prospectus.
(q) The MHC is not authorized to issue any shares of capital
stock.
(r) The Bank is a duly organized and validly existing federally
chartered savings bank in stock form, 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 OTS; the Bank has obtained all licenses,
permits and other governmental authorizations currently required for the conduct
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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 in good standing under the laws of the
United States; all of the issued and outstanding capital stock of the Bank is
duly and validly issued and fully paid and nonassessable; and the Holding
Company directly owns 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.
(s) The Bank is a member of the Federal Home Loan Bank of New
York ("FHLB of New York"); the deposit accounts of the Bank are insured by the
FDIC up to applicable limits.
(t) Upon consummation of the Offering, the authorized, issued and
outstanding equity capital of the Holding Company will be within the range set
forth in the Prospectus under the caption "Capitalization" and, except for the
shares of Common Stock held by the MHC, 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 have been duly and validly
authorized for issuance and, when issued and delivered by the Holding Company
pursuant to the Plan against payment of the consideration calculated as set
forth in the Plan and the Prospectus, will be duly and validly issued and fully
paid and nonassessable; the issuance of the Shares is not subject to preemptive
rights, except for the Subscription Rights granted pursuant to the Plan; and the
terms and provisions of the shares of Common Stock will conform in all material
respects to the description thereof contained in the Prospectus. Upon issuance
of the Shares, good title to the Shares will be transferred from the Holding
Company to the purchasers of Shares against payment therefor in the Offering as
set forth in the Plan and the Prospectus.
(u) None of the Bank, the Holding Company or the MHC are in
violation of their respective charters or their respective bylaws, or in
material default in the performance or observance of any obligation, agreement,
covenant, or condition contained in any contract, lease, loan agreement,
indenture or other instrument to which they are a party or by which they, or any
of their respective properties, may be bound which would result in a material
adverse change in the condition (financial or otherwise), earnings, capital,
properties or assets. 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, the Holding Company or the MHC, 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 Holding Company; (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 on the financial condition and results of
operations of the Holding Company; 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
10
agreements has instituted or, to the best 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 upon the Primary Parties individually or considered as
one enterprise.
(w) The Primary Parties have good and marketable title to all
assets which are material to the businesses 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 on the businesses of the Primary Parties taken as a whole; 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 OTS, the FDIC, 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
as to comply in all respects with all applicable statutes and regulations
(including, without limitation, regulations, decisions, directives and orders of
the OTS, the Commission and the FDIC), except where the failure to so comply
would not reasonably be expected to result in any material adverse change in the
financial condition, results of operations, capital, properties or business
affairs of 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 best
knowledge of any of the Primary Parties, threatened, which would reasonably be
expected to materially and adversely affect 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 change in the financial condition
results of operations, capital, properties or business affairs of the Primary
Parties considered as one enterprise.
(y) The Primary Parties have received an opinion of their special
counsel, Xxxxxxx Xxxxxx & Xxxxxxx LLP, with respect to the federal income tax
consequences of the Offering, as described in the Registration Statement and the
Prospectus; and the facts and representations upon which such opinion is based
are truthful, accurate and complete, and none of the Primary Parties will take
any action inconsistent therewith.
(z) The Primary Parties have 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, except for the approval of the OTS and the Commission (which have
been received) 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.
11
(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) securities issued in connection with the Bank's
reorganization into the mutual holding company structure); (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 except for the Letter Agreement and as contemplated
hereunder and the engagement of FinPro, Inc.; or (iv) engaged any intermediary
between 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 best 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 Shares,
except for the Holding Company's loan to the ESOP the proceeds of which will be
used to purchase 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 Offering.
(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
them has been notified or is otherwise aware that any of them is potentially
liable, or is considered potentially liable, under the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended, or
any other Federal, state or local environmental laws and regulations; 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 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 Primary Parties have a
security interest.
(hh) All of the loans represented as assets on the most recent
financial statements or selected financial information of the Holding Company
12
included in the Prospectus meet or are exempt from all requirements of federal,
state and local law pertaining to lending, including, without limitation, truth
in lending (including the requirements of Regulations Z and 12 C.F.R. Part 226),
real estate settlement procedures, consumer credit protection, equal credit
opportunity and all disclosure laws applicable to such loans, except for
violations which, if asserted, would not result in a material adverse effect on
the financial condition, results of operations or business of the Primary
Parties taken as a whole.
(ii) None of the Primary Parties are required to be registered as
an investment company under the Investment Company Act of 1940.
Any certificates signed by an officer of any of the Primary Parties and
delivered to Agent or its counsel that refer to this Agreement shall be deemed
to be a representation and warranty by the Primary Parties to Agent as to the
matters covered thereby with the same effect as if such representation and
warranty were set forth herein.
SECTION 6.B. REPRESENTATIONS AND WARRANTIES OF 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 the
Letter Agreement are the legal, valid and binding agreements 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
Offering 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 NASD.
(f) Any funds received in the Offering by Agent will be handled
by Agent in accordance with Rule 15c2-4 under the Securities Exchange Act of
1934, as amended (the "1934 Act") to the extent applicable.
13
7. COVENANTS OF THE PRIMARY PARTIES. The Primary Parties hereby
--------------------------------
jointly and severally covenant with Agent as follows:
(a) The Holding Company will not, at any time after the date the
Registration Statement is declared effective, file any amendment or supplement
to the Registration Statement without providing Agent and its counsel an
opportunity to review such amendment or file any amendment or supplement to
which amendment Agent or its counsel shall reasonably object.
(b) The Holding Company represents and agrees that, unless it
obtains the prior consent of Agent and Agent represents and agrees that, unless
it obtains the prior consent of the Holding 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
Holding Company and Agent is hereinafter referred to as a "Permitted Free
Writing Prospectus." The Holding Company represents that it 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 Holding 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
MHC-2 is approved, file any amendment or supplement to such MHC-2 without
providing Agent and its counsel an opportunity to review such amendment or
supplement or file any amendment or supplement to which amendment or supplement
Agent or its counsel shall reasonably object.
(d) The Primary Parties 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 MHC-2 to be approved
by the OTS, and will immediately upon receipt of any information concerning the
events listed below notify Agent (i) when the Registration Statement, as
amended, has become effective; (ii) when the MHC-2, as amended, has been
approved by the OTS; (iii) of the receipt of any comments from the Commission,
the OTS, or any other governmental entity with respect to the Offering or the
transactions contemplated by this Agreement; (iv) of any request by the
Commission, the OTS, any other governmental entity for any amendment or
supplement to the Registration Statement or the MHC-2 or for additional
information; (v) of the issuance by the Commission, the OTS, or any other
governmental agency of any order or other action suspending the Offerings or the
use of the Registration Statement or the Prospectus or any other filing of the
Primary Parties under the Conversion Regulations or other applicable law, or the
threat of any such action; or (vi) of the issuance by the Commission, the OTS,
the FDIC or any state authority of any stop order suspending the effectiveness
of the Registration Statement or of the initiation or threat of initiation or
threat of any proceedings for that purpose. The Primary Parties will make every
reasonable effort to prevent the issuance by the Commission, the OTS, the FDIC
or any state 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.
14
(e) The Primary Parties will deliver to Agent and to its counsel
conformed copies of each of the following documents, with all exhibits: the
MHC-2 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 Agent as may be required for any NASD filings. In
addition, the Primary Parties will also deliver to Agent such number of copies
of the Prospectus, as amended or supplemented, as 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
Offering 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 OTS, the Conversion Regulations (except as modified or waived
in writing by the OTS), the Commission, by applicable state law and regulations
and by the 1933 Act, the 1934 Act and the rules and regulations of the
Commission promulgated under such 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) Each of the Primary Parties will inform 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 and the OTS, and furnish to 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 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 Agent may from time to time reasonably
request.
(h) Pursuant to the terms of the Plan, the Holding Company will
endeavor in good faith, in cooperation with Agent, to register or to qualify the
Shares for offer and sale or to exempt such Shares from registration and to
exempt the Holding Company and its officers, directors and employees from
registration as broker-dealers, under the applicable securities laws of the
jurisdictions in which the Offering will be conducted; provided, however, that
the Holding 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
Holding Company will make and file such statements and reports in each year as
are or may be required by the laws of such jurisdictions.
15
(i) The Holding Company will not sell or issue, contract to sell
or otherwise dispose of, for a period of 90 days after the date hereof, without
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.
(j) For the period of three years from the date of this
Agreement, the Holding Company will furnish to Agent upon request (i) a copy of
each report of the Holding Company furnished to or filed with the Commission
under the 1934 Act or any national securities exchange or system on which any
class of securities of the Holding Company is listed or quoted, (ii) a copy of
each report of the Holding Company mailed to holders of Common Stock or
non-confidential report filed with the Commission or the OTS or any other
supervisory or regulatory authority or any national securities exchange or
system on which any class of the securities of the Holding Company is listed or
quoted, (iii) each press release and material news item and article released by
the Holding Company and/or Bank, and (iv) from time-to-time, such other publicly
available information concerning the Primary Parties as Agent may reasonably
request.
(k) 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."
(l) The Holding 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.
(m) Prior to the Closing Date, the Holding 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
Offering. The Holding Company shall maintain the effectiveness of such
registration for not less than three years or such shorter period as permitted
by the OTS.
(n) For so long as the Common Stock is registered under the 1934
Act, the Holding 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 Holding Company and its subsidiaries, certified by independent public
accountants).
(o) The Holding Company will report the use of proceeds of the
Offering in accordance with Rule 463 under the 1933 Act.
(p) The Primary Parties will maintain appropriate arrangements
for depositing all funds received from persons mailing subscriptions for or
orders to purchase 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 Holding Company's obligation to refund payments
16
received from persons subscribing for or ordering Shares in the Offerings, in
accordance with the Plan as described in the Prospectus, or until refunds of
such funds have been made to the persons entitled thereto or withdrawal
authorizations canceled in accordance with the Plan and as described in the
Prospectus. The Primary Parties will maintain, together with 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 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.
(q) The Primary Parties will take such actions and furnish such
information as are reasonably requested by Agent in order for Agent to ensure
compliance with Rule 2790 of the NASD and all related rules.
(r) 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 OTS and the FDIC.
(s) The Holding Company and the Bank shall comply with any and
all terms, conditions, requirements and provisions with respect to the Offering
and the transactions contemplated thereby imposed by the OTS, the HOLA, the
Commission, the 1933 Act, the 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.
(t) The Primary Parties will not amend the Plan without notifying
Agent prior thereto.
(u) The Holding Company shall provide Agent with any information
necessary to carry out the allocation of the Shares in the event of an
oversubscription, and such information shall be accurate and reliable in all
material respects.
(v) The Holding Company will not deliver the Shares until the
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 Agent.
(w) Immediately upon completion of the sale by the Holding
Company of the Shares contemplated by the Plan and the Prospectus, (i) the MHC
shall own at all times more than 50% of the issued and outstanding shares of
Common Stock, (ii) all of the issued and outstanding shares of capital stock of
the Bank shall be owned by the Holding Company, (iii) the Holding Company shall
have no direct subsidiaries other than the Bank, and (iv) the Offering 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 Offering (except those that are conditions subsequent)
imposed by the Commission, the OTS or any other governmental agency, if any,
shall have been complied with by the 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.
17
(x) 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 OTS) 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 OTS, the Commission or any other regulatory authority and in the manner
described in the Prospectus.
8. PAYMENT OF EXPENSES. Whether or not the Offering 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 MHC-2; (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 Holding 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 reasonable
expenses of Agent actually incurred. Notwithstanding the foregoing, the Primary
Parties shall not be required to reimburse Agent for more than $45,000 in legal
fees (other than such fees as shall be related to "blue sky" matters) and
out-of-pocket expenses actually incurred, except in the event of any material
delay in the Offering that would require 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, Agent will provide the Bank with a detailed accounting of all reimbursable
expenses to be paid at the Closing.
9. CONDITIONS TO AGENT'S OBLIGATIONS. The obligations of Agent
---------------------------------
hereunder and the occurrence of the Closing and the Offering 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 Registration Statement shall have been declared effective
by the Commission and the prospectus contained in the MHC-2 shall have been
approved by the OTS for mailing prior to the commencement of the Offering, 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' best 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 Offering
shall have been issued or proceedings therefore initiated or, to any of the
Primary Parties' best knowledge, threatened by the OTS, the Commission, or any
other governmental body.
(b) At the Closing Date, Agent shall have received:
18
(1) The favorable opinion, dated as of the Closing Date, of
Xxxxxxx Xxxxxx & Xxxxxxx LLP acceptable to Agent in form and substance
satisfactory to counsel for Agent, as set forth in EXHIBIT B.
(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 Agent, representatives of the independent public accounting
firm for the Primary Parties and representatives of 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 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 & Xxxxxxx LLP
that caused Xxxxxxx Xxxxxx & Aguggia LLP to believe that the Registration
Statement 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 Closing
Date, 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 Xxxx
Xxxxxx Xxxxxxxx & Xxxxxx, counsel for Agent, with respect to such matters as
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
Xxxxxx & Aguggia LLP.
(c) Concurrently with the execution of this Agreement, Agent
shall receive a letter from (i) Xxxxxxxx, Xxxxx & Cha, P.C., dated the date
hereof and addressed to Agent, such letter confirming that Xxxxxxxx, Xxxxx &
Cha, P.C. 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 12
C.F.R. Section 571.2(c)(3), and no information concerning its relationship with
or interests in the Primary Parties is required by the MHC-2 or Item 13 of the
Registration Statement, and stating in effect that in Xxxxxxxx, Xxxxx & Cha,
P.C. opinion the financial statements of the Holding Company 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 Directors of the Primary Parties, the Audit Committee of the Holding Company,
a review of the unaudited interim financial information as of and for the
interim period ending December 31, 2006 and the latest available unaudited
quarterly financial statements of the Holding Company prepared by the Holding
Company which shall be in accordance with Statement on Auditing Standards No.
100, and consultations with officers of the Holding Company responsible for
financial and accounting matters, nothing came to their attention which caused
them to believe that: (A) such unaudited financial statements and financial
19
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, special mention loans, borrowings (defined as advances
from the FHLB of New York, securities sold under agreements to repurchase and
any other form of debt other than deposits) of the Holding Company or decrease
in assets, deposits, loan losses allowances or retained earnings of the Holding
Company or there was any decrease in net income, non-interest income, tax
expense or net interest income of the Holding Company or any increase in
non-interest expense 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 Holding Company, which are subject to
the internal controls of the accounting system of the Holding Company 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 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, Agent shall receive a letter from
Xxxxxxxx, Xxxxx & Cha, P.C. dated the Closing Date, addressed to Agent,
confirming the statements made by its letter delivered by it pursuant to
subsection (c) of this Section 9, 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 Agent shall have been
furnished with such documents and opinions as counsel for Agent may require for
the purpose of enabling them to advise 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, 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 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 change in the
financial condition or in the earnings, capital, properties, business prospects
or business affairs of the Primary Parties, considered as one enterprise,
20
whether or not arising in the ordinary course of business; (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 best of their knowledge, is threatened, by the Commission or any other
governmental body; (vi) no order suspending the Offering, or the effectiveness
of the Registration Statement has been issued and to the best of their
knowledge, no proceedings for any such purpose have been initiated or threatened
by the OTS, the Commission, or any other federal or state authority; (vii) to
the best of their knowledge, no person has sought to obtain regulatory or
judicial review of the action of the OTS in approving the Plan or to enjoin the
Offering.
(g) At the Closing Date, Agent shall receive a letter from the
Appraiser, 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) 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, 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 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.
(i) Prior to and at the Closing Date: (i) in the reasonable
opinion of Agent there shall have been no material adverse change in the
financial condition or in the earnings, capital, properties of the Primary
Parties considered as one enterprise, 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, independently or considered as one enterprise, 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 OTS or the FDIC
any direction (oral or written, other than directions applicable to all
federally 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 Agent) and which
would reasonably be expected to have a material and adverse effect on the
21
condition (financial or otherwise) or on the earnings, capital or properties of
the Primary Parties considered as one enterprise; (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 and adverse effect on the financial condition or on the earnings,
capital, properties or business affairs of the Primary Parties, considered as
one enterprise; 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 Agent.
(j) At or prior to the Closing Date, Agent shall receive (i) a
copy of the letter from the OTS authorizing the use of the Prospectus and
approving the MHC-2, (ii) a copy of the order from the Commission declaring the
Registration Statement effective, (iii) copies of certificates of existence for
each of the Primary Parties, (iv) a certificate from the FDIC evidencing the
Bank's insurance of accounts, (v) a certificate of the FHLB of New York
evidencing the Bank's membership therein, and (vi) 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 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 commercial banks or other federally-insured financial
institutions or general moratorium on the withdrawal of deposits from commercial
banks or other federally-insured financial institutions declared by either
federal or state authorities; (iii) the engagement by the United States in
hostilities which have resulted in the declaration, on or after the date hereof,
of a national emergency or war; or (iv) a material decline in the price of
equity or debt securities in the United States financial markets or elsewhere if
the effect of any of (i) through (iv) herein, in Agent's reasonable judgment,
makes it impracticable or inadvisable to proceed with the offering or the
delivery of the Shares on the terms and in the manner contemplated in the
Registration Statement and the Prospectus.
(l) All such opinions, certificates, letters and documents will
be in compliance with the provisions hereof only if they are reasonably
satisfactory in form and substance to Agent and of counsel for Agent. Any
certificate signed by an officer of the Holding Company or the Bank and
delivered to Agent or to counsel for Agent shall be deemed a representation and
warranty by the Holding Company or the Bank, as the case may be, to Agent as to
the statements made therein. If any condition to Agent's obligations hereunder
to be fulfilled prior to or at the Closing Date is not fulfilled, Agent may
terminate this Agreement (provided that if this Agreement is so terminated but
the sale of Shares is nevertheless consummated, Agent shall be entitled to the
23
compensation provided for in Section 4 hereof) or, if 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 Agent, its officers, directors, agents, attorneys, servants
and employees and each person, if any, who controls 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 Agent or any of such officers,
directors, agents, attorneys, servants, employees and controlling Persons
(collectively, the "Related Persons") may suffer or to which Agent or the
Related Persons may become subject under all applicable federal and state laws
or otherwise, and to promptly reimburse Agent and any Related Persons upon
written demand for any reasonable expenses (including reasonable fees and
disbursements of counsel) incurred by Agent or any Related Persons in connection
with investigating, preparing or defending any actions, proceedings or claims
(whether commenced or threatened) to the extent such losses, claims, damages,
liabilities or actions: (i) arise out of or are based upon any untrue statement
or alleged untrue statement of a material fact contained in the Registration
Statement (or any amendment or supplement thereto), preliminary or final
Prospectus (or any amendment or supplement thereto), any Issuer-Represented Free
Writing Prospectus, the MHC-2, or any blue sky application or other instrument
or document of the Primary Parties or based 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, (ii) arise out of or are
based upon the omission or alleged omission to state in any of the foregoing
documents or information, a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading; (iii) arise from any theory of liability
whatsoever relating to or arising from or based upon the Registration Statement
(or any amendment or supplement thereto), preliminary or final Prospectus (or
any amendment or supplement thereto), any Issuer-Represented Free Writing
Prospectus, the MHC-2, any Blue Sky Applications or Sales Information or other
documentation distributed in connection with the Offering; or (iv) result from
the allocation of the Shares in accordance with the Plan, generally, or 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 preliminary or final
Prospectus (or any amendment or supplement thereto), any Issuer-Represented Free
Writing Prospectus, the MHC-2, the Blue Sky Application or Sales Information or
23
other documentation distributed in connection with the Offering made in reliance
upon and in conformity with written information furnished to the Primary Parties
by Agent or its representatives (including counsel) with respect to 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 Stock Offering -Marketing
Arrangements." Provided further, that the Primary Parties will not be
responsible for any loss, liability, claim, damage or expense to the extent they
result primarily from material oral misstatements by 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 Agent in bad faith
or from Agent's gross negligence or willful misconduct, and 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 not to be entitled to
indemnification hereunder.
(b) Agent agrees to indemnify and hold harmless the Primary
Parties, their directors and officers, agents, servants and employees and each
person, if any, 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 MHC-2 or any Blue Sky Application 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 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) or the Prospectus (or any amendment or
supplement thereto) in reliance upon and in conformity with written information
furnished to the Primary Parties by Agent or its representatives (including
counsel) expressly for use under the captions "Market for the Common Stock" and
"The Stock Offering -- 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 defense of
such action with counsel chosen by it and approved by the indemnified parties
that are defendants in such action, unless such indemnified parties reasonably
object to such assumption on the ground that there may be legal defenses
24
available to them that are different from or in addition to those available to
such indemnifying party. If an indemnifying party assumes the defense of such
action, the indemnifying parties shall not be liable for any fees and expenses
of counsel for the indemnified parties incurred thereafter in connection with
such action, proceeding or claim, other than reasonable costs of investigation.
In no event shall the indemnifying parties be liable for the fees and expenses
of more than one separate firm of attorneys (unless an indemnified party or
parties shall have reasonably concluded that there may be defenses available to
it or them which are different from or in addition to those of other indemnified
parties) for all indemnified parties in connection with any one action,
proceeding or claim or separate but similar or related actions, proceedings or
claims in the same jurisdiction arising out of the same general allegations or
circumstances. The Holding Company shall be liable for any settlement of any
claim against Agent (or its directors, officers, employees, affiliates or
controlling persons), made with the Holding Company's consent, which consent
shall not be unreasonably withheld. The Holding Company shall not, without the
written consent of Agent, settle or compromise any claim against it based upon
circumstances giving rise to an indemnification claim against the Holding
Company hereunder unless such settlement or compromise provides that 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 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 Agent, the Primary Parties and Agent
shall contribute to the aggregate losses, claims, damages and liabilities of the
nature contemplated by such indemnification in such proportion so that (i) Agent
is responsible for that portion represented by the percentage that the fees paid
to 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 Shares in the 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
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 Agent on the other from the Offering, as
well as any other relevant equitable considerations. The relative benefits
received by the Primary Parties on the one hand and Agent on the other hand
shall be deemed to be in the same proportion as the total proceeds from the
25
Offerings, net of all expenses of the Offerings except Agent's Fees, received by
the Primary Parties bear, with respect to Agent, to the total fees (not
including expenses) received by Agent less the portion of such fees paid by
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 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 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
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 Agent under this Agreement less the
portion of such fees paid by Agent to Assisting Brokers. It is understood and
agreed that the above-stated limitation on Agent's liability is essential to
Agent and that Agent would not have entered into this Agreement if such
limitation had not been agreed to by the parties to this Agreement. No person
found guilty of any fraudulent misrepresentation (within the meaning of Section
11(f) of the 0000 Xxx) shall be entitled to contribution from any person who was
not found guilty of such fraudulent misrepresentation. The duties, obligations
and liabilities of the Primary Parties and Agent under this Section 11 and under
Section 10 shall be in addition to any duties, obligations and liabilities which
the Primary Parties and Agent may otherwise have. For purposes of this Section
11, each of Agent's and the Primary Parties' officers and directors and each
person, if any, who controls 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 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. REPRESENTATIONS, WARRANTIES AND INDEMNITIES TO SURVIVE DELIVERY.
---------------------------------------------------------------
All representations, warranties and indemnities and other statements contained
in this Agreement, or contained in certificates of officers of the Primary
Parties or 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 Agent or its controlling
persons, or by or on behalf of the Primary Parties and shall survive the
issuance of the Shares, and any legal representative, successor or assign of
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
-----------
notice indicated below in this Section at any time after this Agreement becomes
effective as follows:
26
(a) In the event the Holding Company fails to consummate the sale
of the minimum number of the Shares by September 30, 2007 in accordance with the
provisions of the Plan or as required by the Conversion Regulations and
applicable law, this Agreement shall terminate upon refund by the Primary
Parties to each person who has subscribed for or ordered any of the Shares the
full amount which it may have received from such person, together with interest
in accordance with Section 3, 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 Agent, this Agreement and all of Agent's
obligations hereunder may be canceled by 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 Agent as provided in Section 14
hereof.
(d) If this Agreement is terminated in accordance with the
provisions of Sections 3, 9, or 13, the Primary Parties shall pay Agent the fees
earned pursuant to Section 4 and will reimburse Agent for its reasonable
expenses pursuant to Section 8 and paragraph 4 of the Letter Agreement.
14. NOTICES. All notices and other communications hereunder shall be
-------
in writing and shall be deemed to have been duly given if mailed or transmitted
by any standard form of telecommunication. Notices to Agent shall be directed to
Xxxx Xxxx & Co. Inc., 00 Xxxxxxxx Xxxxxxxx, Xxxxxxx Xxxx, Xxx Xxxxxx 00000,
Attention: Xxxxx Xxxxxxx (with a copy to Xxxx Xxxxxx Xxxxxxxx & Xxxxxx; notices
to the Primary Parties shall be directed to Delanco Bancorp, Inc., 000
Xxxxxxxxxx Xxxxxx, Xxxxxxx, Xxx Xxxxxx 00000 Attention: Xxxxxx X. Xxxxxxx,
President and Chief Executive Officer (with a copy to Xxxxxxx Xxxxxx & Xxxxxxx
LLP).
15. PARTIES. This Agreement shall inure to the benefit of and be
-------
binding upon 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
------------------
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.
27
17. CONSTRUCTION. This Agreement shall be construed in accordance with
------------
the laws of the State of New Jersey.
28
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,
DELANCO MHC
By: /s/ Xxxxxx X. Xxxxxxx
------------------------------------------
Xxxxxx X. Xxxxxxx
President and Chief Executive Officer
DELANCO BANCORP, INC.
By: /s/ Xxxxxx X. Xxxxxxx
------------------------------------------
Xxxxxx X. Xxxxxxx
President and Chief Executive Officer
DELANCO FEDERAL SAVINGS BANK
By: /s/ Xxxxxx X. Xxxxxxx
------------------------------------------
Xxxxxx X. Xxxxxxx
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
------------------------------------------
Xxxxx X. Xxxxxxx
Managing Director
MASTER SELECTED DEALER AGREEMENT
February 12, 2007
Xxxx Xxxx & Co., Inc.
00 Xxxxxxxx Xxxxxxxx
Xxxxxxx Xxxx, XX 00000
Gentlemen:
(1) GENERAL. We understand that Xxxx Xxxx & Co., Inc. ("Xxxx Xxxx") is
entering into this Agreement with us and other firms who may be offered the
right to purchase as principal a portion of securities being distributed to the
public. The terms and conditions of this Agreement shall be applicable to any
public offering of securities ("Securities") pursuant to a registration
statement filed under the Securities Act of 1933 (the "Securities Act") or
exempt from registration thereunder (other than a public offering of Securities
effected wholly outside the United States of America), wherein Xxxx Xxxx (acting
for its own account or for the account of any underwriting or similar group or
syndicate) is responsible for managing or otherwise implementing the sale of the
Securities to selected dealers ("Selected Dealers") and has informed us that
such terms and conditions shall be applicable. Any such offering of Securities
to us as a Selected Dealer is hereinafter called an "Offering." In the case of
any Offering in which you are acting for the account of any underwriting or
similar group or syndicate ("Underwriters"), the terms and conditions of this
Agreement shall be for the benefit of, and binding upon, such Underwriters,
including, in the case of any Offering in which you are acting with others as
representatives of Underwriters, such other representatives. The term
"preliminary prospectus" means any preliminary prospectus relating to an
Offering of Securities or any preliminary prospectus supplement together with a
prospectus relating to an Offering of Securities; the term "Prospectus" means
the prospectus, together with the final prospectus supplement, if any, relating
to an Offering of Securities, filed pursuant to Rule 424(b) or Rule 424(c) under
the Securities Act or any successor or similar rules.
This Agreement constitutes the entire agreement of the parties
with regard to the subject matter hereof and supersedes any prior oral or
written agreements or understanding between the parties hereto or their
predecessors with respect to the subject matter hereof.
(2) CONDITIONS OF OFFERING, ACCEPTANCE AND PURCHASE. Any Offering will
be subject to delivery of the Securities and their acceptance by you and any
other Underwriters, may be subject to the approval of all legal matters by
counsel and the satisfaction of other conditions, and may be made on the basis
of reservation of Securities or an allotment against subscription. You will
advise us by telegram, telex, facsimile, e-mail, or other form of written
communication ("Written Communication") of the particular method and
supplementary terms and conditions (including, without limitation, the
information as to prices and offering date referred to in Section 3(c)) of any
Offering in which we are invited to participate. To the extent such
supplementary terms and conditions are inconsistent with any provision herein,
A-1
such terms and conditions shall supersede any such provision. Unless otherwise
indicated in any such Written Communication, acceptances and other
communications by us with respect to any Offering should be sent to Xxxx Xxxx.
You may close the subscription books at any time in your sole discretion without
notice, and you reserve the right to reject any acceptance in whole or in part.
Payment for Securities purchased by us is to be made at such office as you may
designate, at the public offering price, or, if you shall so advise us, at such
price less the concession to dealers or at the price set forth or indicated in a
Written Communication, on such date as you shall determine, on one day's prior
notice to us, by wire transfer to a Xxxx Xxxx account, against delivery of
certificates or other forms evidencing such Securities. If payment is made for
Securities purchased by us at the public offering price, the concession to which
we shall be entitled will be paid to us upon termination of the provisions of
Section 3(c) with respect to such Securities.
Unless we promptly give you written instructions otherwise, if
transactions in the Securities may be settled through the facilities of The
Depository Trust Company, delivery of Securities purchased by us will be made
through such facilities if we are a member, or if we are not a member,
settlement may be made through our ordinary correspondent who is a member.
(3) REPRESENTATIONS, WARRANTIES, AND AGREEMENTS.
(a) REGISTERED OFFERINGS. In the case of any Offering of
Securities that are registered under the Securities Act ("Registered Offering"),
you shall provide us with such number of copies of each preliminary prospectus,
the Prospectus and any supplement thereto relating to each Registered Offering
as we may reasonably request for the purposes contemplated by the Securities Act
and the Securities Exchange Act of 1934 (the "Exchange Act") and the applicable
Rules and regulations of the Securities and Exchange Commission thereunder. We
represent that we are familiar with Rule 15c2-8 under the Exchange Act relating
to the distribution of preliminary and final prospectuses and agree that we will
comply therewith. We agree to keep an accurate record of our distribution
(including dates, number of copies, and persons to whom sent) of copies of the
Prospectus or any preliminary prospectus (or any amendment or supplement to any
thereof), and promptly upon request by you, to bring all subsequent changes to
the attention of anyone to whom such material shall have been furnished. We
agree to furnish to persons who receive a confirmation of sale a copy of the
Prospectus filed pursuant to Rule 424(b) or Rule 424(c) under the Securities
Act. We agree that in purchasing Securities in a Registered Offering we will
rely upon no statements whatsoever, written or oral, other than the statements
in the Prospectus delivered to us by you. We will not be authorized by the
issuer or other seller of Securities offered pursuant to a Prospectus or by any
Underwriter to give any information or to make any representation not contained
in the Prospectus in connection with the sale of such Securities. We will not
use any free writing prospectus, unless consented to by you or authorized
expressly in writing to you by the issuer in the Registered Offering.
(b) OFFERINGS PURSUANT TO OFFERING CIRCULAR. In the case of any
Offering of Securities, other than a Registered Offering, which is made pursuant
to an offering circular or other document comparable to a prospectus in a
Registered Offering, including, without limitation, an Offering of "exempted
securities" as defined in Section 3(a)(2) of the Securities Act (an "Exempted
Securities Offering"), you shall provide us with such number of copies of each
preliminary offering circular, the final offering circular and any supplement
thereto relating to each Offering as we may reasonably request. We agree that we
will comply with the applicable federal and state laws, and the applicable rules
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and regulations of any regulatory body promulgated thereunder, governing the use
and distribution of offering circulars by brokers or dealers. We agree that in
purchasing Securities pursuant to an offering circular we will rely upon no
statements whatsoever, written or oral, other than the statements in the final
offering circular delivered to us by you. We will not be authorized by the
issuer or other seller of Securities offered pursuant to an offering circular or
by any Underwriter to give any information or to make any representation not
contained in the offering circular in connection with the sale of such
Securities.
(c) OFFER AND SALE TO THE PUBLIC. With respect to any Offering of
Securities, you will inform us by a Written Communication of the public offering
price, the selling concession, the reallowance (if any) to dealers, and the time
when we may commence selling Securities to the public. After such public
offering has commenced, you may change the public offering price, the selling
concession, and the reallowance to dealers. With respect to each Offering of
Securities, until the provisions of this Section 3(c) shall be terminated
pursuant to Section 5, we agree to offer Securities to the public only at the
public offering price, except that if a reallowance is in effect, a reallowance
from the public offering price not in excess of such reallowance may be allowed
as consideration for services rendered in distribution to dealers who are
actually engaged in the investment banking or securities business, who execute
the written agreement prescribed by Rule 2740 of the Rules of Conduct of the
National Association of Securities Dealers, Inc. (the "NASD") and who are either
members in good standing of the NASD or foreign brokers or dealers not eligible
for membership in the NASD who represent to us that they will promptly reoffer
such Securities at the public offering price and will abide by the conditions
with respect to foreign brokers and dealers set forth in Section 3(f) hereof.
(d) STABILIZATION AND OVERALLOTMENT. You may, with respect to any
Offering, be authorized to over-allot in arranging sales to Selected Dealers, to
purchase and sell Securities, any other securities of the issuer of the
Securities of the same class and series and any other securities of such issuer
that you may designate for long or short account, and to stabilize or maintain
the market price of the Securities. We agree not to purchase and sell Securities
for which an order from a client has not been received without your consent in
each instance. We agree to advise you from time to time upon request, prior to
the termination of the provisions of Section 3(c) with respect to any Offering,
of the amount of Securities purchased by us hereunder remaining unsold and we
will, upon your request, sell to you, for the accounts of the Underwriters, such
amount of Securities as you may designate, at the public offering price thereof
less an amount to be determined by you not in excess of the concession to
dealers. In the event that prior to the later of (i) the termination of the
provisions of Section 3(c) with respect to any Offering, or (ii) the covering by
you of any short position created by you in connection with such Offering for
your account or the account of one or more Underwriters, you purchase or
contract to purchase for the account of any of the Underwriters, in the open
market or otherwise, any Securities theretofore delivered to us, you reserve the
right to withhold the above-mentioned concession to dealers on such Securities
if sold to us at the public offering price, or if such concession has been
allowed to us through our purchase at a net price, we agree to repay such
concession upon your demand, plus in each case any taxes on redelivery,
commissions, accrued interest, and dividends paid in connection with such
purchase or contract to purchase.
(e) OPEN MARKET TRANSACTIONS. We agree to abide by Regulation M
under the Exchange Act and we agree not to bid for, purchase, attempt to
purchase, or sell, directly or indirectly, any Securities, any other Reference
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Securities (as defined in Regulation M) of the issuer, or any other securities
of such issuer as you may designate, except as brokers pursuant to unsolicited
orders and as otherwise provided in this Agreement. If the Securities are common
stock or securities convertible into common stock, we agree not to effect, or
attempt to induce others to effect, directly or indirectly, any transactions in
or relating to any stock of such issuer, except to the extent permitted by Rule
101 of Regulation M under the Exchange Act.
(f) NASD. We represent that we are actually engaged in the
investment banking or securities business and we are either (i) a member in good
standing of the NASD, (ii) if not such a member, a foreign dealer not eligible
for membership, or (iii) solely in connection with an Exempted Securities
Offering, a bank, as defined in Section 3(a)(6) of the Exchange Act, that does
not otherwise fall within provision (i) or (ii) of this sentence (a "Bank"). If
we are a member as described in (i), we agree that in making sales of the
Securities we will comply with all applicable interpretative materials and
Conduct Rules of the NASD, including, without limitation, Conduct Rules 2740
(relating to Selling Concessions, Discounts and Other Allowances) and 2790
(relating to New Issues). If we are a foreign dealer as described in (ii), we
agree not to offer or sell any Securities in the United States of America, its
territories or its possessions or to persons who are citizens thereof or
residents therein (other than through you), and in making sales of Securities
outside the United States of America we agree to comply as though we were a
member with Conduct Rules 2730 (relating to Securities Taken in Trade), 2740
(relating to Selling Concessions), 2750 (relating to Transactions with Related
Persons) and 2790 (relating to New Issues) as though we were such a member and
to comply with Conduct Rule 2420 (relating to Dealing with Non-Members) as it
applies to a nonmember broker or dealer in a foreign country. In connection with
an Exempted Securities Offering, if we are a Bank, we agree to also comply, as
though we were an NASD member, with the provision of Rules 2730, 2740 and 2750
of the Conduct Rules. We further represent, by our participating in an Offering,
that we have provided to you all documents and other information required to be
filed with respect to us, any related person or any person associated with us or
any such related person pursuant to the supplementary requirements of the NASD's
interpretation with respect to review of corporate financing as such
requirements relate to such Offering.
We further agree that, in connection with any purchase of
Securities from you that is not otherwise covered by the terms of this Agreement
(whether you are acting as manager, as member of an underwriting syndicate or a
selling group or otherwise), if a selling concession, discount or other
allowance is granted to us, the preceding paragraph will be applicable.
(g) RELATIONSHIP AMONG UNDERWRITERS AND SELECTED DEALERS. You may
buy Securities from or sell Securities to any Underwriter or Selected Dealer
and, with your consent, the Underwriters (if any) and the Selected Dealers may
purchase Securities from and sell Securities to each other at the public
offering price less all or any part of the concession. We are not authorized to
act as agent for you or any Underwriter or the issuer or other seller of any
Securities in offering Securities to the public or otherwise. Nothing contained
herein or in any Written Communication from you shall constitute the Selected
Dealers partners with you or any Underwriter or with one another. If the
Selected Dealers, among themselves or with the Underwriters, should be deemed to
constitute a partnership for federal income tax purposes, then we elect to be
excluded from the application of Subchapter K, Chapter 1, Subtitle A of the
Internal Revenue Code of 1986 and agree not to take any position inconsistent
with that election. We authorize you, in your discretion, to execute and file on
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our behalf such evidence of that election as may be required by the Internal
Revenue Service. Neither you nor any Underwriter shall be under any obligation
to us except for obligations assumed hereby or in any Written Communication from
you in connection with any Offering. In connection with any Offering, we agree
to pay our proportionate share of any tax, claim, demand, or liability asserted
against us, and the other Selected Dealers or any of them, or against you or the
Underwriters, if any, based on any claim that such Selected Dealers or any of
them constitute an association, unincorporated business, or other separate
entity, including in each case our proportionate share of any expense incurred
in defending against any such tax, claim, demand, or liability.
(h) BLUE SKY LAWS. Upon application to you, you will inform us as
to the jurisdictions in which you believe the Securities have been qualified for
sale or are exempt under the respective securities or "blue sky" laws of such
jurisdictions. We understand and agree that compliance with the securities or
"blue sky" laws in each jurisdiction in which we shall offer or sell any of the
Securities shall be our sole responsibility and that you assume no
responsibility or obligations as to the eligibility of the Securities for sale
or our right to sell the Securities in any jurisdiction.
(i) COMPLIANCE WITH LAW. We agree that in selling Securities
pursuant to any Offering (which agreement shall also be for the benefit of the
issuer or other seller of such Securities), we will comply with the applicable
provisions of the Securities Act and the Exchange Act, the applicable Rules and
regulations of the Securities and Exchange Commission thereunder, the applicable
Rules and regulations of the NASD, the applicable Rules and regulations of any
securities exchange having jurisdiction over the Offering, and the applicable
laws, rules and regulations specified in Section 3(c) hereof. Without limiting
the foregoing, (a) we agree that, at all times since we were invited to
participate in an Offering of Securities, we have complied with the provisions
of Regulation M applicable to such Offering, in each case after giving effect to
any applicable exemptions and (b) we represent that our incurrence of
obligations hereunder in connection with any Offering of Securities will not
result in the violation by us of Rule 15c3-1 under the Exchange Act, if such
requirements are applicable to us. You shall have full authority to take such
action as you may deem advisable in respect of all matters pertaining to any
Offering. Neither you nor any Underwriter shall be under any liability to us,
except for lack of good faith and for obligations expressly assumed by you in
this Agreement; PROVIDED, HOWEVER, that nothing in this sentence shall be deemed
to relieve you from any liability imposed by the Securities Act.
(j) BEST EFFORTS OFFERINGS. If you communicate to us that a
particular offering is being made on a best efforts basis, then the terms in
this Section 3(j) apply and other inconsistent terms in this Agreement do not
apply.
(i) The offering will be a best efforts offering. The
offering also will be contingent and involve a closing only after receipt of
necessary documentation from the issuer and satisfaction of other conditions, if
any, specified in the prospectus or offering circular and the agency or
engagement agreement with you and the issuer. The offering is designed to comply
with applicable SEC rules, including Rules 15c2-4, 10b-9, and 15c6-1. See NASD
Notice to Members 98-4, 87-61 and 84-7.
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(ii) We represent and agree that we shall take necessary
steps to comply with SEC Rules 15c2-4, 10b-9 and 15c6-1, including, but not
limited to, depositing funds in a complying special account if funds are
received before all closing conditions have been met. We also represent that we
are aware that those who purchase in this best efforts offering are subject to
the investor purchase limitations described in the prospectus or offering
circular.
(4) INDEMNIFICATION. We agree to indemnify and hold harmless Xxxx
Xxxx, the issuer of the Securities, each person, if any, who controls (within
the meaning of either Section 15 of the Securities Act or Section 20 of the
Exchange Act) Xxxx Xxxx or the issuer of the Securities, and their respective
directors, officers and employees from and against any and all losses,
liabilities, costs or claims (or actions in respect thereof) (collectively,
"Losses") to which any of them may become subject (including all reasonable
costs of investigating, disputing or defending any such claim or action),
insofar as such Losses arise out of or are in connection with the breach of any
representation, warranty or agreement made by us herein.
If any claim, demand, action or proceeding (including any
governmental investigation) shall be brought or alleged against an indemnified
party in respect of which indemnity is to be sought against an indemnifying
party, the indemnified party shall promptly notify the indemnifying party in
writing, and the indemnifying party, upon request of the indemnified party,
shall retain counsel reasonably satisfactory to the indemnified party to
represent the indemnified party and any others the indemnified party may
designate in such proceeding and shall pay the reasonable fees and expenses of
such counsel related to such proceeding. In any such proceeding, any indemnified
party shall have the right to retain its own counsel, but the reasonable fees
and expenses of such counsel shall be at the expense of such indemnified party
unless (i) the indemnifying party and the indemnified party shall have mutually
agreed to the retention of such counsel, (ii) the indemnifying party has failed
within a reasonable time to retain counsel reasonably satisfactory to such
indemnified party or (iii) the named parties to any such proceeding (including
any impleaded parties) include both the indemnifying party and the indemnified
party and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between them. It is
agreed that the indemnifying party shall not, in connection with any proceeding
or related proceedings in the same jurisdiction, be liable for the reasonable
fees and expenses of more than one separate law firm (in addition to local
counsel where necessary) for all such indemnified parties. Such firm shall be
designated in writing by the indemnified party. The indemnifying party shall not
be liable for any settlement of any proceeding effected without its written
consent, but if settled with such consent or if there be a final judgment for
the plaintiff, the indemnifying party agrees to indemnify the indemnified party
from and against any loss or liability by reason of such settlement or judgment.
No indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement of any pending or threatened proceeding
in respect of which any indemnified party is or could have been a party and
indemnity could have been sought hereunder by such indemnified party, unless
such settlement includes an unconditional release of such indemnified party from
all liability on claims that are the subject matter of such proceeding.
The indemnity agreements contained in this Section and the
representations and warranties by us in this Agreement shall remain operative
and in full force and effect regardless of: (i) any termination of this
Agreement, (ii) any investigation made by an indemnified party or on such
party's behalf or any person controlling an indemnified party or by or on behalf
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of the indemnifying party, its directors or officers or any person controlling
the indemnifying party, and (iii) acceptance of and payment for any Securities.
(5) TERMINATION; SUPPLEMENTS AND AMENDMENTS. This Agreement may be
terminated by either party hereto upon five business days' written notice to the
other party; provided that with respect to any Offering for which a Written
Communication was sent and accepted prior to such notice, this Agreement as it
applies to such Offering shall remain in full force and effect and shall
terminate with respect to such Offering in accordance with the last sentence of
this Section. This Agreement may be supplemented or amended by you by written
notice thereof to us, and any such supplement or amendment to this Agreement
shall be effective with respect to any Offering to which this Agreement applies
after the date of such supplement or amendment. Each reference to "this
Agreement" herein shall, as appropriate, be to this Agreement as so amended and
supplemented. The terms and conditions set forth in Sections 3(c) and (e) with
regard to any offering will terminate at the close of business on the thirtieth
day after the date of the initial public offering of the Securities to which
such Offering relates, but such terms and conditions, upon notice to us, may be
terminated by you at any time.
(6) SUCCESSORS AND ASSIGNS. This Agreement shall be binding on, and
inure to the benefit of, the parties hereto and other persons specified or
indicated in Section 1, and the respective successors and assigns of each of
them.
(7) GOVERNING LAW. This Agreement and the terms and conditions set
forth herein with respect to any Offering together with such supplementary terms
and conditions with respect to such Offering as may be contained in any Written
Communication from you to us in connection therewith shall be governed by, and
construed in accordance with, the laws of the State of New York without regard
to conflicts of laws principles.
By signing this Agreement we confirm that our subscription to, or our
acceptance of any reservation of, any Securities pursuant to an Offering shall
constitute (i) acceptance of and agreement to the terms and conditions of this
Agreement (as supplemented and amended pursuant to Section 5) together with and
subject to any supplementary terms and conditions contained in any Written
Communication from you in connection with such Offering, all of which shall
constitute a binding agreement between us and you, individually, or as
representative of any Underwriters, (ii) in confirmation that our
representations and warranties set forth in Section 3 are true and correct at
that time and (iii) confirmation that our agreements set forth in Sections 2 and
3 have been and will be fully performed by us to the extent and at the times
required thereby.
Very truly yours,
______________________
(Name of Firm)
By: ______________________
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Confirmed, as of the date
first above written.
XXXX, XXXX & CO., INC.
By:
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Xxxx X. Xxxxxxx
Executive Vice - President
Execution Date:
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