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EXHIBIT 1.2
STATEN ISLAND BANCORP, INC.
35,595,238 Shares
COMMON SHARES
(Par Value $.01 Per Share)
Subscription Price $10.00 Per Share
AGENCY AGREEMENT
__________ __, 1997
Xxxxx, Xxxxxxxx & Xxxxx, Inc.
0 Xxxxx Xxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Staten Island Bancorp, Inc., a Delaware corporation (the "Company")
and Staten Island Savings Bank, a federally chartered mutual savings bank
(reference to the "Bank" includes the Bank in the mutual or stock form, as
indicated by the context) with its deposit accounts insured by the Bank
Insurance Fund ("BIF") administered by the Federal Deposit Insurance
Corporation ("FDIC"), hereby confirm their agreement with Xxxxx, Xxxxxxxx &
Xxxxx, Inc. ("KBW" or "the Agent"), as follows:
SECTION 1. THE OFFERING. The Bank, in accordance with its plan of
conversion adopted by its Board of Trustees (the "Plan"), intends to convert
from a federally chartered mutual savings bank to a federally chartered stock
savings bank, and will issue all of its issued and outstanding capital stock to
the Company in exchange for 50% of the net conversion proceeds. The Company
will retain the other 50% of net conversion proceeds. In addition, pursuant to
the Plan, the Company will offer and sell up to 35,595,238 shares of its common
stock, par value, $.01 per share (the "Shares" or "Common Shares"), in a
subscription offering (the "Subscription Offering") to (1) depositors of the
Bank with account balances of $50.00 or more as of March 31, 1996 ("Eligible
Account Holders"), (2) the Staten Island Bancorp, Inc. Employee Stock Ownership
Plan (the "ESOP"), (3) depositors of the Bank with account balances of $50.00
or more as of June 30, 1997 ("Supplemental Eligible Account Holders"), (4)
depositors of the Bank as of the close of business on ________, 1997 (other
than Eligible Account Holders and Supplemental Eligible Account Holders)
("Other Members"), and (5) employees, officers and directors of the Bank. To
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the extent Shares remain unsold in the Subscription Offering, the Company is
offering for sale in a community offering (the "Community Offering" and when
referred to together with the Subscription Offering, the "Subscription and
Community Offering"), the Shares not so subscribed for or ordered in the
Subscription Offering to members of the general public to whom a copy of the
Prospectus (as hereinafter defined) is delivered ("Other Subscribers"), (all
such offerees being referred to in the aggregate as "Eligible Offerees"). It
is anticipated that shares not subscribed for in the Subscription and Community
Offering will be offered to certain members of the general public on a best
efforts basis through a selected dealers arrangement (the "Syndicated Community
Offering") (the Subscription Offering, Community Offering and Syndicated
Community Offering are collectively referred to as the "Offering"). It is
acknowledged that the purchase of Shares in the Offering is subject to the
maximum and minimum purchase limitations as described in the Plan and that the
Company and the Bank may reject, in whole or in part, any orders received in
the Community Offering or Syndicated Community Offering. Collectively, these
transactions are referred to herein as the "Conversion."
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-1 (File No. 333-_____) (the
"Registration Statement") containing a prospectus relating to the Offering for
the registration of the Shares under the Securities Act of 1933 (the "1933
Act"), and has filed such amendments thereof and such amended prospectuses as
may have been required to the date hereof. The term "Registration Statement"
shall include all exhibits thereto, as amended, including post-effective
amendments. The prospectus, as amended, on file with the Commission at the
time the Registration Statement initially became effective is hereinafter
called the "Prospectus," except that if any Prospectus is filed by the Company
pursuant to Rule 424(b) or (c) of the rules and regulations of the Commission
under the 1933 Act (the "1933 Act Regulations") differing from the prospectus
on file at the time the Registration Statement initially becomes effective, the
term "Prospectus" shall refer to the prospectus filed pursuant to Rule 424(b)
or (c) from and after the time said prospectus is filed with the Commission.
In accordance with Title 12, Part 563b of the Code of Federal
Regulations (the "Conversion Regulations"), the Bank has filed with the Office
of Thrift Supervision (the "OTS") an Application for Approval of Conversion on
Form AC (the "Conversion Application"), including the Prospectus and the
Conversion Valuation Appraisal Report prepared by RP Financial, LC (the
"Appraisal") and has filed such amendments thereto as may have been required by
the OTS. The Conversion Application has been approved by the OTS and the
related Prospectus has been authorized for use by the OTS. In addition, the
Company has filed with the OTS its application on Form H-(e)1 (the "Holding
Company Application") to become a registered savings and loan holding company
under the Home Owners' Loan Act, as amended ("HOLA"); and it has been approved.
SECTION 2. RETENTION OF AGENT; COMPENSATION; SALE AND DELIVERY OF THE
SHARES. Subject to the terms and conditions herein set forth, the Company and
the Bank have retained Xxxxx, Xxxxxxxx & Xxxxx, Inc. to consult with and to
advise the Bank and the Company, and to assist the Company, on a best efforts
basis, in the distribution of the shares of Common Stock
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in the Subscription and Community Offering. The services that Xxxxx, Xxxxxxxx
& Xxxxx, Inc. will provide include, but are not limited to (i) training the
employees of the Bank who will perform certain ministerial functions in the
Subscription and Community Offering regarding the mechanics and regulatory
requirements of the stock offering process, (ii) managing the Stock Information
Center by assisting interested stock subscribers and by keeping records of all
stock orders, (iii) preparing marketing materials and (iv) assisting in the
solicitation of proxies from the Bank's members for use at the Special Meeting.
On the basis of the representations, warranties, and agreements herein
contained, but subject to the terms and conditions herein set forth, the Agent
accepts such appointment and agrees to consult with and advise the Company and
the Bank as to the matters set forth in the letter agreement ("Letter
Agreement"), dated _________ __, 1997 between the Bank and KBW (a copy of which
is attached hereto as Exhibit A). It is acknowledged by the Company and the
Bank that the Agent shall not be required to take or purchase any Shares or be
obligated to take any action which is inconsistent with all applicable laws,
regulations, decisions or orders.
The obligations of the Agent pursuant to this Agreement (other than
those set forth in Sections 2(d), 8 and 9 hereof) shall terminate upon the
completion or termination or abandonment of the Plan by the Company or upon
termination of the Offering, but in no event later than the date (the "End
Date") which is 45 days after the Closing Date (as hereinafter defined). All
fees or expenses due to the Agent but unpaid will be payable to the Agent in
next day funds at the earlier of the Closing Date (as hereinafter defined) or
the End Date. In the event the Offering is extended beyond the End Date, the
Company, the Bank and the Agent may agree to renew this Agreement under
mutually acceptable terms.
In the event the Company is unable to sell a minimum of 26,309,524
Shares within the period herein provided, this Agreement shall terminate and
the Company shall refund to any persons who have subscribed for any of the
Shares, the full amount which it may have received from them plus accrued
interest as set forth in the Prospectus; and none of the parties to this
Agreement shall have any obligation to the other parties hereunder, except as
set forth in this Section 2 and in Sections 6, 8 and 9 hereof.
In the event the Offering is terminated, the Agent shall be reimbursed
for its actual accountable out-of-pocket expenses.
If all conditions precedent to the consummation of the Conversion,
including, without limitation, the sale of all Shares required by the Plan to
be sold, are satisfied, the Company agrees to issue, or have issued, the Shares
sold in the Offering and to release for delivery certificates for such Shares
on the Closing Date (as hereinafter defined) against payment to the Company by
any means authorized by the Plan; provided, however, that no funds shall be
released to the Company until the conditions specified in Section 7 hereof
shall have been complied with to the reasonable satisfaction of the Agent and
their counsel. The release of Shares against payment therefor shall be made on
a date and at a place acceptable to the Company, the Bank and the Agent.
Certificates for shares shall be delivered directly to the
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purchasers in accordance with their directions. The date upon which the
Company shall release or deliver the Shares sold in the Offering, in accordance
with the terms herein, is called the "Closing Date."
The Agent shall receive the following compensation for its services
hereunder:
(a) A management fee of $50,000. Should the Conversion be
terminated for any reason not attributable to the action or
inaction of the Agent, the Agent shall have earned and be
entitled to be paid fees accruing through the stage at which
the termination occurred.
(b) A Success Fee of 1.15% of the aggregate Actual Purchase Price
of the shares of Common Stock sold in the Subscription
Offering and Community Offering excluding shares purchased by
the Bank's officers, directors, or employees (or members of
their immediate families) plus any ESOP, tax-qualified or
stock based compensation plans (except IRA's) or similar plan
created by the Bank for some or all of its directors or
employees. The success fee paid to KBW will be reduced by the
amount of the management fee.
(c) If any of the shares remain available after the Subscription
and Community Offerings, at the request of the Bank, KBW will
seek to form a syndicate of registered broker-dealers to
assist in the sale of such Common Shares on a best efforts
basis, subject to the terms and conditions set forth in the
selected dealers agreement. KBW will endeavor to distribute
the Common Shares among dealers in a fashion which best meets
the distribution objectives of the Bank and the Plan of
Conversion. KBW will be paid a fee not to exceed 5.5% of the
aggregate Purchase Price of the Shares sold by them. KBW will
pass onto selected broker-dealers, who assist in the
syndicated community, an amount competitive with gross
underwriting discounts charged at such time for comparable
amounts of stock sold at a comparable price per share in a
similar market environment. Fees with respect to purchases
affected with the assistance of a broker/dealer other than KBW
shall be transmitted by KBW to such broker/dealer. The
decision to utilize selected broker-dealers will be made by
the Bank upon consultation with KBW. In the event, with
respect to any purchases of Shares, fees are paid pursuant to
this subparagraph 2(c), such fees shall be in lieu of, and not
in addition to, payment pursuant to subparagraph 2(a) and
2(b).
(d) The Company and the Bank have agreed to reimburse KBW for its
out-of-pocket expenses, and its legal fees and to indemnify
KBW against certain claims or liabilities, including certain
liabilities under the Securities Act, and will contribute to
payments KBW may be required to make in connection with any
such claims or liabilities; and the fees set forth under this
Section 2.
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SECTION 3. PROSPECTUS; OFFERING. The Shares are to be initially
offered in the Offering at the Purchase Price as defined and set forth on the
cover page of the Prospectus.
SECTION 4. REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND THE
BANK. The Company and the Bank jointly and severally represent and warrant to
and agree with the Agent as follows:
(a) The Registration Statement which was prepared by the Company
and the Bank and filed with the Commission was declared
effective by the Commission on ________ __, 1997. At the time
the Registration Statement, including the Prospectus contained
therein (including any amendment or supplement), became
effective, the Registration Statement contained all statements
that were required to be stated therein in accordance with the
1933 Act and the 1933 Act Regulations, complied in all
material respects with the requirements of the 1933 Act and
the 1933 Act Regulations and the Registration Statement,
including the Prospectus contained therein (including any
amendment or supplement thereto), and any information
regarding the Company or the Bank contained in Sales
Information (as such term is defined in Section 8 hereof)
authorized by the Company or the Bank for use in connection
with the Offering, did not contain an untrue statement of a
material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not
misleading, and at the time any Rule 424(b) or (c) Prospectus
was filed with the Commission and at the Closing Date referred
to in Section 2, the Registration Statement, including the
Prospectus contained therein (including any amendment or
supplement thereto), and any information regarding the Company
or the Bank contained in Sales Information (as such term is
defined in Section 8 hereof) authorized by the Company or the
Bank for use in connection with the Offering will contain all
statements that are required to be stated therein in
accordance with the 1933 Act and the 1933 Act Regulations and
will not contain an untrue statement of a material fact or
omit to state a material fact necessary in order to make the
statements therein, in light of the circumstances under which
they were made, not misleading; provided, however, that the
representations and warranties in this Section 4(a) shall not
apply to statements or omissions made in reliance upon and in
conformity with written information furnished to the Company
or the Bank by the Agent or its counsel expressly regarding
the Agent for use in the Prospectus under the caption "The
Conversion- Marketing Arrangements" or statements in or
omissions from any Sales Information or information filed
pursuant to state securities or blue sky laws or regulations
regarding the Agent.
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(b) The Conversion Application which was prepared by the Company
and the Bank and filed with the OTS was approved by the OTS on
________ __, 1997 and the related Prospectus has been
authorized for use by the OTS. At the time of the approval of
the Conversion Application, including the Prospectus
(including any amendment or supplement thereto), by the OTS
and at all times subsequent thereto until the Closing Date,
the Conversion Application, including the Prospectus
(including any amendment or supplement thereto), will comply
in all material respects with the Conversion Regulations,
except to the extent waived in writing by the OTS. The
Conversion Application, including the Prospectus (including
any amendment or supplement thereto), does not include any
untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances
under which they were made, not misleading; provided, however,
that the representations and warranties in this Section 4(b)
shall not apply to statements or omissions made in reliance
upon and in conformity with written information furnished to
the Company or the Bank by the Agent or its counsel expressly
regarding the Agent for use in the Prospectus contained in the
Conversion Application under the caption "The
Conversion-Marketing Arrangements" or statements in or
omissions from any sales information or information filed
pursuant to state securities or blue sky laws or regulations
regarding the Agent. The Holding Company Application for
approval pursuant to the HOLA and the regulations promulgated
thereunder (the "Control Act Regulations"), has been prepared
by the Bank and the Company in material conformity with the
requirements of the Control Act Regulations and has been filed
with and approved by the OTS. A conformed copy of the Holding
Company Application has been delivered to the Agent.
(c) The Company has filed with the OTS the Holding Company
Application, and such Application was deemed complete by the
OTS. As of the Closing Date, approval of the Company's
acquisition of the Bank will have been obtained from the OTS.
(d) No order has been issued by the OTS or the FDIC (hereinafter
any reference to the FDIC shall include the BIF) preventing or
suspending the use of the Prospectus, and no action by or
before any such government entity to revoke any approval,
authorization or order of effectiveness related to the
Conversion is, to the best knowledge of the Company or the
Bank, pending or threatened.
(e) At the Closing Date, the Plan will have been adopted by the
Boards of Directors of the Company and the Board of Trustees
of the Bank and approved by the members of the Bank, and the
offer and sale of the Shares
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will have been conducted in all material respects in
accordance with the Plan, the Conversion Regulations, and all
other applicable laws, regulations, decisions and orders,
including all terms, conditions, requirements and provisions
precedent to the Conversion imposed upon the Company or the
Bank by the OTS, the Commission, or any other regulatory
authority and in the manner described in the Prospectus. No
person has sought to obtain review of the final action of the
OTS in approving the Plan or in approving the Conversion or
the Holding Company Application pursuant to the HOLA, or any
other statute or regulation.
(f) The Bank has been organized and is a validly existing
federally chartered Savings Bank in mutual form of
organization and upon the Conversion will become a duly
organized and validly existing federally chartered savings
Bank in capital stock form of organization, in both instances
duly authorized to conduct its business and own its property
as described in the Registration Statement and the Prospectus;
the Bank has obtained all material licenses, permits and other
governmental authorizations currently required for the conduct
of its business; all such licenses, permits and governmental
authorizations are in full force and effect, and the Bank is
in all material respects complying with all laws, rules,
regulations and orders applicable to the operation of its
business; the Bank is existing under the laws of the federal
government and is duly qualified as a foreign corporation to
transact business and is in good standing in each jurisdiction
in which its ownership of property or leasing of property or
the conduct of its business requires such qualification,
unless the failure to be so qualified in one or more of such
jurisdictions would not have a material adverse effect on the
condition, financial or otherwise, or the business, operations
or income of the Bank. The Bank does not own equity securities
or any equity interest in any other business enterprise except
as described in the Prospectus or as would not be material to
the operations of the Bank. Upon completion of the sale by
the Company of the Shares contemplated by the Prospectus, (i)
the Bank will be converted pursuant to the Plan to a federally
chartered stock savings bank, (ii) all of the issued and
outstanding capital stock of the Bank will be owned by the
Company, and (iii) the Company will have no direct
subsidiaries other than the Bank. The Conversion will have
been effected in all material respects in accordance with all
applicable statutes, regulations, decisions and orders; and,
except with respect to the filing of certain post-sale,
post-Conversion reports, and documents in compliance with the
1933 Act Regulations, the OTS' resolutions or letters of
approval, all terms, conditions, requirements and provisions
with respect to the Conversion imposed by the Commission, the
OTS, and the FDIC, if any, will have been complied with by the
Company and the Bank in all material respects or appropriate
waivers will
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have been obtained and all material notice and waiting periods
will have been satisfied, waived or elapsed.
(g) The Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State
of Delaware with corporate power and authority to own, lease
and operate its properties and to conduct its business as
described in the Registration Statement and the Prospectus,
and at the Closing Date the Company will be qualified to do
business as a foreign corporation in each jurisdiction in
which the conduct of its business requires such qualification,
except where the failure to so qualify would not have a
material adverse effect on the condition, financial or
otherwise, or the business, operations or income of the
Company. The Company has obtained all material licenses,
permits and other governmental authorizations currently
required for the conduct of its business; all such licenses,
permits and governmental authorizations are in full force and
effect, and the Company is in all material respects complying
with all laws, rules, regulations and orders applicable to the
operation of its business.
(h) The Bank has no active subsidiaries.
(i) The Bank is a member of the Federal Home Loan Bank of New York
("FHLB-New York"). The deposit accounts of the Bank are
insured by the FDIC up to the applicable limits; and no
proceedings for the termination or revocation of such
insurance are pending or, to the best knowledge of the Company
or the Bank, threatened. Upon consummation of the Conversion,
the liquidation account for the benefit of Eligible Account
Holders will be duly established in accordance with the
requirements of the Conversion Regulations.
(j) The Company and the Bank have good and marketable title to all
real property and good title to all other assets material to
the business of the Company and the Bank, taken as a whole,
and to those properties and assets described in the
Registration Statement and Prospectus as owned by them, free
and clear of all liens, charges, encumbrances or restrictions,
except such as are described in the Registration Statement and
Prospectus, or are not material to the business of the Company
and the Bank, taken as a whole; and all of the leases and
subleases material to the business of the Company and the
Bank, taken as a whole, under which the Company or the Bank
hold properties, including those described in the Registration
Statement and Prospectus, are in full force and effect.
(k) The Company and the Bank have received an opinion of their
special counsel, Elias, Matz, Xxxxxxx & Xxxxxxx L.L.P. with
respect to the federal
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income tax consequences of the Conversion and an opinion of
KPMG Peat Marwick LLP with respect to New York income tax
consequences of the Conversion; all material aspects of the
opinions of Elias, Matz, Xxxxxxx & Xxxxxxx L.L.P. and KPMG
Peat Marwick LLP are accurately summarized in the Registration
Statement and will be accurately summarized in the Prospectus;
and further represent and warrant that the facts upon which
such opinions are based are truthful, accurate and complete.
(l) The Company and the Bank have all such power, authority,
authorizations, approvals and orders as may be required to
enter into this Agreement, to carry out the provisions and
conditions hereof and to issue and sell the Shares to be sold
by the Company as provided herein and as described in the
Prospectus except approval or confirmation by the OTS of the
final appraisal of the Bank. The consummation of the
Conversion, the execution, delivery and performance of this
Agreement and the consummation of the transactions herein
contemplated have been duly and validly authorized by all
necessary corporate action on the part of the Company and the
Bank and this Agreement has been validly executed and
delivered by the Company and the Bank and is the valid, legal
and binding agreement of the Company and the Bank enforceable
in accordance with its terms (except as the enforceability
thereof may be limited by bankruptcy, insolvency, moratorium,
reorganization or similar laws relating to or affecting the
enforcement of creditors' rights generally or the rights of
creditors of savings and loan holding companies, the accounts
of whose subsidiaries are insured by the FDIC or by general
equity principles regardless of whether such enforceability is
considered in a proceeding in equity or at law, and except to
the extent if any, that the provisions of Sections 8 and 9
hereof may be unenforceable as against public policy).
(m) The Company and the Bank are not in violation of any directive
received from the OTS, the FDIC, or any other agency to make
any material change in the method of conducting their
businesses so as to comply in all material respects with all
applicable statutes and regulations (including, without
limitation, regulations, decisions, directives and orders of
the OTS, and the FDIC) and, except as may be set forth in the
Registration Statement and the Prospectus, there is no suit or
proceeding or charge or action before or by any court,
regulatory authority or governmental agency or body, pending
or, to the knowledge of the Company or the Bank, threatened,
which might materially and adversely affect the Conversion,
the performance of this Agreement or the consummation of the
transactions contemplated in the Plan and as described in the
Registration Statement and the Prospectus or which might
result in any material adverse change in the condition
(financial or otherwise), earnings, capital or properties of
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the Company or the Bank, or which would materially affect
their properties and assets.
(n) The financial statements, schedules and notes related thereto
which are included in the Prospectus fairly present the
consolidated balance sheet, income statement, statement of
changes in equity and cash flows of the Bank at the respective
dates indicated and for the respective periods covered thereby
and comply as to form in all material respects with the
applicable accounting requirements of Title 12 of the Code of
Federal Regulations and generally accepted accounting
principles (including those requiring the recording of certain
assets at their current market value). Such financial
statements, schedules and notes related thereto have been
prepared in accordance with generally accepted accounting
principles consistently applied through the periods involved,
present fairly in all material respects the information
required to be stated therein and are consistent with the most
recent financial statements and other reports filed by the
Bank with the OTS. The other financial, statistical and pro
forma information and related notes included in the Prospectus
present fairly the information shown therein on a basis
consistent with the audited and unaudited financial statements
of the Bank included in the Prospectus, and as to the pro
forma adjustments, the adjustments described therein have been
properly applied on the basis described therein.
(o) Since the respective dates as of which information is given in
the Registration Statement including the Prospectus: (i) there
has not been any material adverse change, financial or
otherwise, in the condition of the Company or the Bank and its
subsidiaries considered as one enterprise, or in the earnings,
capital or properties of the Company or the Bank, whether or
not arising in the ordinary course of business; (ii) there has
not been any material increase in the long-term debt of the
Bank or in the principal amount of the Bank's assets which are
classified by the Bank as substandard, doubtful or loss or in
loans past due 90 days or more or real estate acquired by
foreclosure, by deed-in-lieu of foreclosure or deemed
in-substance foreclosure or any material decrease in retained
earnings or total assets of the Bank nor has the Company or
the Bank issued any securities (other than in connection with
the incorporation of the Company) or incurred any liability or
obligation for borrowing other than in the ordinary course of
business; (iii) there have not been any material transactions
entered into by the Company or the Bank; (iv) there has not
been any material adverse change in the aggregate dollar
amount of the Bank's deposits or its consolidated net worth;
(v) there has been no material adverse change in the Company's
or the Bank's relationship with its insurance carriers,
including, without limitation, cancellation or other
termination of the Company's or the Bank's fidelity bond or
any other type
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of insurance coverage; (vi) except as disclosed in the
Prospectus there has been no material change in management of
the Company or the Bank, neither of which has any material
undisclosed liability of any kind, contingent or otherwise;
(vii) the Company or the Bank has not sustained any material
loss or interference with its respective business or
properties from fire, flood, windstorm, earthquake, accident
or other calamity, whether or not covered by insurance; (viii)
the Company or the Bank is not in default in the payment of
principal or interest on any outstanding debt obligations;
(ix) the capitalization, liabilities, assets, properties and
business of the Company and the Bank conform in all material
respects to the descriptions thereof contained in the
Prospectus; and (x) neither the Company, the Bank nor its
wholly owned subsidiary has any material contingent
liabilities, except as set forth in the Prospectus. All
documents made available to or delivered or to be made
available to or delivered by the Bank or the Company or their
representatives in connection with the issuance and sale of
the Shares, including records of account holders, depositors,
borrowers and other members of the Bank, or in connection with
the Agent's exercise of due diligence, except for those
documents which were prepared by parties other than the Bank,
the Company or their representatives, to the best knowledge of
the Bank and the Company, were on the dates on which they were
delivered, or will be on the dates on which they are to be
delivered, true, complete and correct in all material
respects.
(p) As of the date hereof and as of the Closing Date, neither the
Company nor the Bank is (i) in violation of its articles of
incorporation or charter or bylaws, respectively (and the Bank
will not be in violation of its charter or bylaws in capital
stock form upon consummation of the Conversion), or (ii) in
default in the performance or observance of any material
obligation, agreement, covenant, or condition contained in any
material contract, lease, loan agreement, indenture or other
instrument to which it is a party or by which it or any of its
property may be bound; the consummation of the Conversion, the
execution, delivery and performance of this Agreement and the
consummation of the transactions herein contemplated have been
duly and validly authorized by all necessary corporate action
on the part of the Company and the Bank and this Agreement has
been validly executed and delivered by the Company and the
Bank and is a valid, legal and binding Agreement of the
Company and the Bank enforceable in accordance with its terms,
except as the enforceability thereof may be limited by (i)
bankruptcy, insolvency, reorganization, moratorium,
conservatorship, receivership or other similar laws now or
hereafter in effect relating to or affecting the enforcement
of creditors' rights generally or the rights of creditors of
federal savings institutions, (ii) general equitable
principles, (iii) laws relating to the safety and soundness of
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insured depository institutions, and (iv) applicable law or
public policy with respect to the indemnification and/or
contribution provisions contained herein, and except that no
representation or warranty need be made as to the effect or
availability of equitable remedies or injunctive relief
(regardless of whether such enforceability is considered in a
proceeding in equity or at law). The consummation of the
transactions herein contemplated will not: (i) conflict with
or constitute a breach of, or default under, or result in the
creation of any material lien, charge or encumbrance (with the
exception of the liquidation account established in the
Conversion) upon any of the assets of the Company or the Bank
pursuant to the articles of incorporation of the Company or
the charter and bylaws of the Bank (in either mutual or
capital stock form), or any material contract, lease or other
instrument to which the Company or the Bank has a beneficial
interest, or any applicable law, rule, regulation or order;
(ii) violate any authorization, approval, judgement, decree,
order, statute, rule or regulation applicable to the Company
or the Bank, except for such violations which would not have a
material adverse effect on the financial condition and results
of operations of the Company and the Bank on a consolidated
basis; or (iii) with the exception of the liquidation account
established in the Conversion, result in the creation of any
material lien, charge or encumbrance upon any property of the
Company or the Bank.
(q) No default exists, and no event has occurred which with notice
or lapse of time, or both, would constitute a default, on the
part of the Company or the Bank in the due performance and
observance of any term, covenant or condition of any
indenture, mortgage, deed of trust, note, bank loan or credit
agreement or any other instrument or agreement to which the
Company or the Bank is a party or by which any of them or any
of their property is bound or affected, except such defaults
which would not have a material adverse affect on the
financial condition or results of operations of the Company
and the Bank on a consolidated basis; such agreements are in
full force and effect; and no other party to any such
agreements has instituted or, to the best knowledge of the
Company and the Bank, threatened any action or proceeding
wherein the Company or the Bank would or might be alleged to
be in default thereunder.
(r) Upon consummation of the Conversion, the authorized, issued
and outstanding equity capital of the Company will be within
the range set forth in the Prospectus under the caption
"Capitalization," and no Shares have been or will be issued
and outstanding prior to the Closing Date; the Shares will
have been duly and validly authorized for issuance and, when
issued and delivered by the Company pursuant to the Plan
against payment of the consideration calculated as set forth
in the Plan and in the Prospectus, will be duly and validly
issued, fully paid and non-assessable,
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except for shares purchased by the ESOP with funds borrowed
from the Company to the extent payment therefor in cash has
not been received by the Company; except to the extent that
subscription rights and priorities pursuant thereto exist
pursuant to the Plan, no preemptive rights exist with respect
to the Shares; and the terms and provisions of the Shares will
conform in all material respects to the description thereof
contained in the Registration Statement and the Prospectus.
To the best knowledge of the Company and the Bank, upon the
issuance of the Shares, good title to the Shares will be
transferred from the Company to the purchasers thereof against
payment therefor, subject to such claims as may be asserted
against the purchasers thereof by third-party claimants.
(s) No approval of any regulatory or supervisory or other public
authority is required in connection with the execution and
delivery of this Agreement or the issuance of the Shares,
except for the approval of the Commission, the OTS and any
necessary qualification, notification, registration or
exemption under the securities or blue sky laws of the various
states in which the Shares are to be offered, and except as
may be required under the rules and regulations of the NASD
and/or the New York Stock Exchange ("NYSE").
(t) Xxxxxx Xxxxxxxx LLP which has certified the consolidated
audited financial statements and schedules of the Bank
included in the Prospectus, has advised the Company and the
Bank in writing that they are, with respect to the Company and
the Bank, independent public accountants within the meaning of
the Code of Professional Ethics of the American Institute of
Certified Public Accountants and Title 12 of the Code of
Federal Regulations and Section 571.2(c)(3).
(u) RP Financial LC, which has prepared the Bank's Conversion
Valuation Appraisal Report as of July 17, 1997 (as amended or
supplemented, if so amended or supplemented) (the
"Appraisal"), has advised the Company in writing that it is
independent of the Company and the Bank within the meaning of
the Conversion Regulations.
(v) The Company and the Bank have timely filed all required
federal, state and local tax returns; the Company and the Bank
have paid all taxes that have become due and payable in
respect of such returns, except where permitted to be
extended, have made adequate reserves for similar future tax
liabilities and no deficiency has been asserted with respect
thereto by any taxing authority.
(w) The Bank is in compliance in all material respects with the
applicable financial record-keeping and reporting requirements
of the Currency and
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Foreign Transactions Reporting Act of 1970, as amended, and
the regulations and rules thereunder.
(x) To the knowledge of the Company and the Bank, neither the
Company, the Bank nor employees of the Company or the Bank
have made any payment of funds of the Company or the Bank as a
loan for the purchase of the Shares or made any other payment
of funds prohibited by law, and no funds have been set aside
to be used for any payment prohibited by law.
(y) Prior to the Conversion, neither the Company nor the Bank has:
(i) issued any securities within the last 18 months (except
for notes to evidence other bank loans and reverse repurchase
agreements or other liabilities in the ordinary course of
business or as described in the Prospectus, and except for any
shares issued in connection with the incorporation of the
Company); (ii) had any material dealings within the 12 months
prior to the date hereof with any member of the NASD, or any
person related to or associated with such member, other than
discussions and meetings relating to the proposed Offering and
routine purchases and sales of United States government and
agency securities; (iii) entered into a financial or
management consulting agreement except as contemplated
hereunder; and (iv) engaged any intermediary between the Agent
and the Company and the Bank in connection with the offering
of the Shares, and no person is being compensated in any
manner for such service. Appropriate arrangements have been
made for placing the funds received from subscriptions for
Shares in a special interest-bearing account with the Bank
until all Shares are sold and paid for, with provision for
refund to the purchasers in the event that the Conversion is
not completed for whatever reason or for delivery to the
Company if all Shares are sold.
(z) The Company and the Bank have not relied upon the Agent or its
legal counsel or other advisors for any legal, tax or
accounting advice in connection with the Conversion.
(aa) The Company is not required to be registered under the
Investment Company Act of 1940, as amended.
(bb) Any certificates signed by an officer of the Company or the
Bank pursuant to the conditions of this Agreement and
delivered to the Agent or their counsel that refers to this
Agreement shall be deemed to be a representation and warranty
by the Company or the Bank to the Agent as to the matters
covered thereby with the same effect as if such representation
and warranty were set forth herein.
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SECTION 5. REPRESENTATIONS AND WARRANTIES OF THE AGENT.
KBW represents and warrants to the Company and the Bank that:
(i) it is a corporation and is validly existing in good
standing under the laws of the State of New York and licensed to
conduct business in the State of _____ and it has the full power and
authority to provide the services to be furnished to the Bank and the
Company hereunder.
(ii) The execution and delivery of this Agreement
and the consummation of the transactions contemplated hereby have been
duly and validly authorized by all necessary action on the part of the
Agent, and this Agreement has been duly and validly executed and
delivered by the Agent and is a legal, valid and binding agreement of
the Agent, enforceable in accordance with its terms.
(iii) Each of the Agent and its employees, agents and
representatives who shall perform any of the services hereunder shall
be duly authorized and empowered, and shall have all licenses,
approvals and permits necessary to perform such services.
(iv) The execution and delivery of this Agreement
by the Agent, the consummation of the transactions contemplated hereby
and compliance with the terms and provisions hereof will not conflict
with, or result in a breach of, any of the terms, provisions or
conditions of, or constitute a default (or an event which with notice
or lapse of time or both would constitute a default) under, the
articles of incorporation of the Agent or any agreement, indenture or
other instrument to which the Agent is a party or by which it or its
property is bound.
(v) No approval of any regulatory or supervisory
or other public authority is required in connection with the Agent's
execution and delivery of this Agreement, except as may have been
received.
(vi) There is no suit or proceeding or charge or
action before or by any court, regulatory authority or government
agency or body or, to the knowledge of the Agent, pending or
threatened, which might materially adversely affect the Agent's
performance of this Agreement.
SECTION 5.1 COVENANTS OF THE COMPANY AND THE BANK. The Company and
the Bank hereby jointly and severally covenant with KBW as follows:
(a) The Company will not, at any time after the date the
Registration Statement is declared effective, file any
amendment or supplement to the Registration Statement without
providing the Agent and its counsel an
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opportunity to review such amendment or supplement or file any
amendment or supplement to which amendment or supplement the
Agent or its counsel shall reasonably object.
(b) The Bank will not, at any time after the Conversion
Application is approved by the OTS, file any amendment or
supplement to such Conversion Application without providing
the Agent and its counsel an opportunity to review such
amendment or supplement or file any amendment or supplement to
which amendment or supplement the Agent or its counsel shall
reasonably object.
(c) The Company will not, at any time before the Holding Company
Application is approved by the OTS, file any amendment or
supplement to such Holding Company Application without
providing the Agent and its counsel an opportunity to review
the nonconfidential portions of such amendment or supplement
or file any amendment or supplement to which amendment or
supplement the Agent or its counsel shall reasonably object.
(d) The Company and the Bank will use their best efforts to cause
any post-effective amendment to the Registration Statement to
be declared effective by the Commission and any post-effective
amendment to the Conversion Application to be approved by the
OTS and will immediately upon receipt of any information
concerning the events listed below notify the Agent: (i) when
the Registration Statement, as amended, has become effective;
(ii) when the Conversion Application, as amended, has been
approved by the OTS; (iii) any comments from the Commission,
the OTS or any other governmental entity with respect to the
Conversion or the transactions contemplated by this Agreement;
(iv) of the request by the Commission, the OTS or any other
governmental entity for any amendment or supplement to the
Registration Statement, the Conversion Application or for
additional information; (v) of the issuance by the Commission,
the OTS or any other governmental entity of any order or other
action suspending the Offering or the use of the Registration
Statement or the Prospectus or any other filing of the Company
or the Bank under the Conversion Regulations, or other
applicable law, or the threat of any such action; (vi) the
issuance by the Commission, the OTS or any authority of any
stop order suspending the effectiveness of the Registration
Statement or of the initiation or threat of initiation or
threat of any proceedings for that purpose; or (vii) of the
occurrence of any event mentioned in paragraph (h) below. The
Company and the Bank will make every reasonable effort (i) to
prevent the issuance by the Commission, the OTS or any state
authority of any such order and, if any such order shall at
any time be issued, (ii) to obtain the lifting thereof at the
earliest possible time.
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(e) The Company and the Bank will deliver to the Agent and to its
counsel two conformed copies of the Registration Statement,
the Conversion Application and the Holding Company
Application, as originally filed and of each amendment or
supplement thereto, including all exhibits. Further, the
Company and the Bank will deliver such additional copies of
the foregoing documents to counsel to the Agent as may be
required for any NASD and "blue sky" filings.
(f) The Company and the Bank will furnish to the Agent, from time
to time during the period when the Prospectus (or any later
prospectus related to this offering) is required to be
delivered under the 1933 Act or the Securities Exchange Act of
1934 (the "1934 Act"), such number of copies of such
Prospectus (as amended or supplemented) as the Agent may
reasonably request for the purposes contemplated by the 1933
Act, the 1933 Act Regulations, the 1934 Act or the rules and
regulations promulgated under the 1934 Act (the "1934 Act
Regulations"). The Company authorizes the Agent to use the
Prospectus (as amended or supplemented, if amended or
supplemented) in any lawful manner contemplated by the Plan in
connection with the sale of the Shares by the Agent.
(g) The Company and the Bank will comply with any and all material
terms, conditions, requirements and provisions with respect to
the Conversion and the transactions contemplated thereby
imposed by the Commission, the OTS or the Conversion
Regulations, and by the 1933 Act, the 1933 Act Regulations,
the 1934 Act and the 1934 Act Regulations to be complied with
prior to or subsequent to the Closing Date and when the
Prospectus is required to be delivered, and during such time
period the Company and the Bank will comply, at their own
expense, with all material requirements imposed upon them by
the Commission, the OTS or the Conversion Regulations, and by
the 1933 Act, the 1933 Act Regulations, the 1934 Act and the
1934 Act Regulations, including, without limitation, Rule
10b-5 under the 1934 Act, in each case as from time to time in
force, so far as necessary to permit the continuance of sales
or dealing in the Common Shares during such period in
accordance with the provisions hereof and the Prospectus.
(h) If, at any time during the period when the Prospectus relating
to the Shares is required to be delivered, any event relating
to or affecting the Company or the Bank shall occur, as a
result of which it is necessary or appropriate, in the opinion
of counsel for the Company and the Bank or in the reasonable
opinion of the Agent's counsel, to amend or supplement the
Registration Statement or Prospectus in order to make the
Registration Statement or Prospectus not misleading in light
of the circumstances
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existing at the time the Prospectus is delivered to a
purchaser, the Company and the Bank will immediately so inform
the Agent and prepare and file, at their own expense, with the
Commission, the OTS and furnish to the Agent a reasonable
number of copies of an amendment or amendments of, or a
supplement or supplements to, the Registration Statement or
Prospectus (in form and substance reasonably satisfactory to
the Agent and its counsel after a reasonable time for review)
which will amend or supplement the Registration Statement or
Prospectus so that as amended or supplemented it will not
contain an untrue statement of a material fact or omit to
state a material fact necessary in order to make the
statements therein, in light of the circumstances existing at
the time the Prospectus is delivered to a purchaser, not
misleading. For the purpose of this Agreement, the Company
and the Bank each will timely furnish to the Agent such
information with respect to itself as the Agent may from time
to time reasonably request.
(i) The Company and the Bank will take all necessary actions, in
cooperating with the Agent, and furnish to whomever the Agent
may direct, such information as may be required to qualify or
register the Shares for offering and sale by the Company or to
exempt such Shares from registration, or to exempt the Company
as a broker-dealer and its officers, directors and employees
as broker-dealers or agents under the applicable securities or
blue sky laws of such jurisdictions in which the Shares are
required under the Conversion Regulations to be sold or as the
Agent and the Company and the Bank may reasonably agree upon;
provided, however, that the Company shall not be obligated to
file any general consent to service of process, to qualify to
do business in any jurisdiction in which it is not so
qualified, or to register its directors or officers as
brokers, dealers, salesmen or agents in any jurisdiction. In
each jurisdiction where any of the Shares shall have been
qualified or registered as above provided, the Company will
make and file such statements and reports in each fiscal
period as are or may be required by the laws of such
jurisdiction.
(j) The liquidation account for the benefit of Eligible Account
Holders and Supplemental Eligible Account Holders will be duly
established and maintained in accordance with the requirements
of the OTS, and such Eligible Account Holders and Supplemental
Eligible Account Holders who continue to maintain their
savings accounts in the Bank will have an inchoate interest in
their pro rata portion of the liquidation account which shall
have a priority superior to that of the holders of the Common
Shares in the event of a complete liquidation of the Bank.
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(k) The Company and the Bank will not sell or issue, contract to
sell or otherwise dispose of, for a period of 90 days after
the Closing Date, without the Agent's prior written consent,
any Common Shares other than the Shares or other than in
connection with any plan or arrangement described in the
Prospectus, including existing stock benefit plans.
(l) The Company shall register its Common Stock under Section
12(b) of the 1934 Act on or prior to the Closing Date pursuant
to the Plan and shall request that such registration be
effective prior to or upon completion of the Conversion. The
Company shall maintain the effectiveness of such registration
for not less than three years or such shorter period as may be
required by the OTS.
(m) During the period during which the Company's Common Shares are
registered under the 1934 Act or for three (3) years from the
date hereof, whichever period is greater, the Company will
furnish to its shareholders as soon as practicable after the
end of each fiscal year an annual report of the Company
(including a consolidated balance sheet and statements of
consolidated income, shareholders' equity and cash flows of
the Company and its subsidiaries as at the end of and for such
year, certified by independent public accountants in
accordance with Regulation S-X under the 1933 Act and the 1934
Act).
(n) During the period of three years from the date hereof, the
Company will furnish to the Agent: (i) as soon as practicable
after such information is publicly available, a copy of each
report of the Company furnished to or filed with the
Commission under the 1934 Act or any national securities
exchange or system on which any class of securities of the
Company is listed or quoted (including, but not limited to,
reports on Forms 10-K, 10-Q and 8-K and all proxy statements
and annual reports to stockholders), (ii) a copy of each other
non-confidential report of the Company mailed to its
stockholders or filed with the Commission, the OTS or any
other supervisory or regulatory authority or any national
securities exchange or system on which any class of securities
of the Company is listed or quoted, each press release and
material news items and additional documents and information
with respect to the Company or the Bank as the Agent may
reasonably request; and (iii) from time to time, such other
nonconfidential information concerning the Company or the Bank
as the Agent may reasonably request.
(o) The Company and the Bank will use the net proceeds from the
sale of the Shares in the manner set forth in the Prospectus
under the caption "Use of Proceeds."
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(p) Other than as permitted by the Conversion Regulations, the
HOLA, the 1933 Act, the 1933 Act Regulations, and the laws of
any state in which the Shares are registered or qualified for
sale or exempt from registration, neither the Company nor the
Bank will distribute any prospectus, offering circular or
other offering material in connection with the offer and sale
of the Shares.
(q) The Company will use its best efforts to (i) encourage and
assist a market maker to establish and maintain a market for
the Shares and (ii) list and maintain quotation of the Shares
on a national or regional securities exchange or on the Nasdaq
Stock Market ("Nasdaq") effective on or prior to the Closing
Date.
(r) The Bank will maintain appropriate arrangements for depositing
all funds received from persons mailing subscriptions for or
orders to purchase Shares in the Offering on an
interest-bearing basis at the rate described in the Prospectus
until the Closing Date and satisfaction of all conditions
precedent to the release of the Bank's obligation to refund
payments received from persons subscribing for or ordering
Shares in the Offering in accordance with the Plan and as
described in the Prospectus or until refunds of such funds
have been made to the persons entitled thereto or withdrawal
authorizations canceled in accordance with the Plan and as
described in the Prospectus. The Bank will maintain such
records of all funds received to permit the funds of each
subscriber to be separately insured by the FDIC (to the
maximum extent allowable) and to enable the Bank to make the
appropriate refunds of such funds in the event that such
refunds are required to be made in accordance with the Plan
and as described in the Prospectus.
(s) The Company will promptly take all necessary action to
register as a savings and loan holding company under the HOLA
within 90 days of the Closing Date.
(t) The Company and the Bank will take such actions and furnish
such information as are reasonably requested by the Agent in
order for the Agent to ensure compliance with the NASD's
"Interpretation Relating to Free Riding and Withholding."
(u) Neither the Company nor the Bank will amend the Plan of
Conversion without notifying the Agent prior thereto.
(v) The Company shall assist the Agent, if necessary, in
connection with the allocation of the Shares in the event of
an oversubscription and shall
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provide the Agent with any information necessary to assist the
Company in allocating the Shares in such event and such
information shall be accurate and reliable in all material
respects.
(w) Prior to the Closing Date, the Company and the Bank will
inform the Agent of any event or circumstances of which it is
aware as a result of which the Registration Statement and/or
Prospectus, as then amended or supplemented, would contain an
untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements
therein not misleading.
(x) Subsequent to the date the Registration Statement is declared
effective by the Commission and prior to the Closing Date,
except as otherwise may be indicated or contemplated therein
or set forth in an amendment or supplement thereto, neither
the Company nor the Bank will have: (i) issued any securities
or incurred any liability or obligation, direct or contingent,
for borrowed money, except borrowings from the same or similar
sources indicated in the Prospectus in the ordinary course of
its business, or (ii) entered into any transaction which is
material in light of the business and properties of the
Company and the Bank, taken as a whole.
(y) The facts and representations provided to Elias, Matz, Xxxxxxx
& Xxxxxxx L.L.P. by the Bank and the Company and upon which
Elias, Matz, Xxxxxxx & Xxxxxxx L.L.P. will base its opinion
under Section 7(c)(1) are and will be truthful, accurate and
complete.
SECTION 6. PAYMENT OF EXPENSES. Whether or not the Conversion is
completed or the sale of the Shares by the Company is consummated, the Company
and the Bank jointly and severally agree to pay or reimburse the Agent for the
Company and the Bank have agreed to reimburse KBW for its out-of-pocket
expenses, and its legal fees and to indemnify KBW against certain claims or
liabilities, including certain liabilities under the Securities Act, and will
contribute to payments KBW may be required to make in connection with any such
claims or liabilities; and the fees set forth under this Section 2. In the
event the Company is unable to sell a minimum of 26,309,524 Shares or the
Conversion is terminated or otherwise abandoned, the Company and the Bank shall
promptly reimburse the Agent in accordance with Section 2 hereof.
SECTION 7. CONDITIONS TO THE AGENT'S OBLIGATIONS. The obligations of
the Agent hereunder, as to the Shares to be delivered at the Closing Date, are
subject, to the extent not waived in writing by the Agent, to the condition
that all representations and warranties of the Company and the Bank herein are,
at and as of the commencement of the Offering and at and as of the Closing
Date, true and correct in all material respects, the condition that the Company
and the Bank shall have performed all of their obligations hereunder to be
performed on or before such dates, and to the following further conditions:
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(a) At the Closing Date, the Company and the Bank shall have
conducted the Conversion in all material respects in
accordance with the Plan, the Conversion Regulations, and all
other applicable laws, regulations, decisions and orders,
including all terms, conditions, requirements and provisions
precedent to the Conversion imposed upon them by the OTS.
(b) The Registration Statement shall have been declared effective
by the Commission and the Conversion Application approved by
the OTS not later than 5:30 p.m. on the date of this
Agreement, or with the Agent's consent at a later time and
date; and at the Closing Date, no stop order suspending the
effectiveness of the Registration Statement shall have been
issued under the 1933 Act or proceedings therefore initiated
or threatened by the Commission or any state authority, and no
order or other action suspending the authorization of the
Prospectus or the consummation of the Conversion shall have
been issued or proceedings therefore initiated or, to the
Company's or the Bank's knowledge, threatened by the
Commission, the OTS, the FDIC, or any state authority.
(c) At the Closing Date, the Agent shall have received:
(1) The favorable opinion, dated as of the Closing Date and
addressed to the Agent and for its benefit, of Elias, Matz,
Xxxxxxx & Xxxxxxx, L.L.P., special counsel for the Company and
the Bank, in form and substance to the effect that:
(i) The Company has been duly
incorporated and is validly existing as a corporation
under the laws of the state of Delaware.
(ii) The Company has corporate power and
authority to own, lease and operate its properties
and to conduct its business as described in the
Registration Statement and the Prospectus.
(iii) The Bank has been organized and is a
validly existing federally chartered savings bank in
capital stock form of organization, authorized to
conduct its business and own its property as
described in the Registration Statement and the
Prospectus. All of the outstanding capital stock of
the Bank upon completion of the Conversion will be
duly authorized and, upon payment therefor, will be
validly issued, fully paid and non-assessable and
will be owned by the Company, free and clear of any
liens, encumbrances, claims or other restrictions.
(iv) The Bank has no active subsidiaries.
(v) The Bank is a member of the FHLB-New
York. The deposit accounts of the Bank are insured by
the FDIC up to the maximum amount
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allowed under law and no proceedings for the
termination or revocation of such insurance are
pending or, to such counsel's Actual Knowledge,
threatened; the description of the liquidation
account as set forth in the Prospectus under the
captions "The Conversion - Liquidation Rights," to
the extent that such information constitutes matters
of law and legal conclusions, has been reviewed by
such counsel and is accurately described in all
material respects.
(vi) Upon consummation of the Conversion,
the authorized, issued and outstanding capital stock
of the Company will be within the range set forth in
the Prospectus under the caption "Capitalization,"
and no shares of Common Stock have been issued prior
to the Closing Date; at the time of the Conversion,
the Shares subscribed for pursuant to the Offering
will have been duly and validly authorized for
issuance, and when issued and delivered by the
Company pursuant to the Plan against payment of the
consideration calculated as set forth in the Plan and
Prospectus, will be duly and validly issued and fully
paid and non-assessable; the issuance of the Shares
is not subject to preemptive rights and the terms and
provisions of the Shares conform in all material
respects to the description thereof contained in the
Prospectus. To such counsel's Actual Knowledge, upon
the issuance of the Shares, good title to the Shares
will be transferred by the Company to the purchasers
thereof against payment therefor, subject to such
claims as may be asserted against the purchasers
thereof by third-party claimants.
(viii) The execution and delivery of this
Agreement and the consummation of the transactions
contemplated hereby have been duly and validly
authorized by all necessary action on the part of the
Company and the Bank; and this Agreement is a valid
and binding obligation of the Company and the Bank,
enforceable in accordance with its terms, except as
the enforceability thereof may be limited by (i)
bankruptcy, insolvency, reorganization, moratorium,
conservatorship, receivership or other similar laws
now or hereafter in effect relating to or affecting
the enforcement of creditors' rights generally or the
rights of creditors of savings institutions, the
deposits of which are insured by the FDIC and their
holding companies, (ii) general equitable principles,
(iii) laws relating to the safety and soundness of
insured depository institutions and their holding
companies, and (iv) applicable law or public policy
with respect to the indemnification and/or
contribution provisions contained herein, including
without limitation the provisions of Sections 23A and
23B of the Federal Reserve Act and except that no
opinion need be expressed as to the effect or
availability of equitable remedies or injunctive
relief (regardless of whether such enforceability is
considered in a proceeding in equity or at law).
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(ix) The Conversion Application has been
approved by the OTS and the Prospectus has been
authorized for use by the OTS. The OTS has approved
the Holding Company Application and issued its order
of approval under the savings and loan holding
company provisions of the HOLA, the purchase by the
Company of all of the issued and outstanding capital
stock of the Bank has been authorized by the OTS and
no action has been taken, and to such counsel's
Actual Knowledge none is pending or threatened, to
revoke any such authorization or approval.
(x) The Plan has been duly adopted by
the required vote of the directors of the Company and
the Bank, and based upon the certificate of the
inspector of election, by the members of the Bank.
(xi) Subject to the satisfaction of the
conditions to the OTS' approval of the Conversion, no
further approval, registration, authorization,
consent or other order of any federal regulatory
agency is required in connection with the execution
and delivery of this Agreement, the issuance of the
Shares and the consummation of the Conversion, except
as may be required under the securities or blue sky
laws of various jurisdictions (as to which no opinion
need be rendered) and except as may be required under
the rules and regulations of the NASD and/or the NYSE
(as to which no opinion need be rendered). To such
counsel's Actual Knowledge, the Conversion has been
consummated in all material respects in accordance
with all applicable provisions of the HOLA and the
Conversion Regulations, except that no opinion is
rendered with respect to (a) the Conversion
Application, the Registration Statement or
Prospectus, which are covered by other clauses of
this opinion, (b) the satisfaction of the
post-Conversion conditions in the OTS Regulations or
in the OTS approvals of the Conversion Application
and the Holding Company Application, (c) the
securities of "blue sky" laws of various
jurisdictions, and (d) the rules and regulations of
the NASD and/or NYSE.
(xii) The Registration Statement is
effective under the 1933 Act, and no stop order
suspending the effectiveness has been issued under
the 1933 Act or proceedings therefor initiated or, to
such counsel's Actual Knowledge, threatened by the
Commission.
(xiii) At the time the Conversion
Application, including the Prospectus contained
therein, was approved by the OTS, the Conversion
Application, including the Prospectus contained
therein, complied as to form in all material respects
with the requirements of the Conversion Regulations,
federal law and all applicable rules and regulations
promulgated thereunder (other than the financial
statements, the notes thereto, and other tabular,
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financial, statistical and appraisal data included
therein, as to which no opinion need be rendered).
(xiv) At the time that the Registration
Statement became effective, (i) the Registration
Statement (as amended or supplemented, if so amended
or supplemented) (other than the financial
statements, the notes thereto, and other tabular,
financial, statistical and appraisal data included
therein, as to which no opinion need be rendered),
complied as to form in all material respects with the
requirements of the 1933 Act and the 1933 Act
Regulations, and (ii) the Prospectus (other than the
financial statements, the notes thereto, and other
tabular, financial, statistical and appraisal data
included therein, as to which no opinion need be
rendered) complied as to form in all material
respects with the requirements of the 1933 Act, the
1933 Act Regulations, the Conversion Regulations and
federal law.
(xv) The terms and provisions of the
Shares of the Company conform, in all material
respects, to the description thereof contained in the
Registration Statement and Prospectus, and the form
of certificate used to evidence the Shares is in due
and proper form.
(xvi) There are no legal or governmental
proceedings pending or, to such counsel's Actual
Knowledge, threatened which are required to be
disclosed in the Registration Statement and
Prospectus, other than those disclosed therein, and
to such counsel's Actual Knowledge, all pending legal
and governmental proceedings to which the Company or
the Bank is a party or of which any of their property
is the subject, which are not described in the
Registration Statement and the Prospectus, including
ordinary routine litigation incidental to the
Company's or the Bank's business, are, considered in
the aggregate, not material.
(xvii) To such counsel's Actual Knowledge,
there are no material contracts, indentures,
mortgages, loan agreements, notes, leases or other
instruments required to be described or referred to
in the Conversion Application, the Registration
Statement or the Prospectus or required to be filed
as exhibits thereto other than those described or
referred to therein or filed as exhibits thereto in
the Conversion Application, the Registration
Statement or the Prospectus. The description in the
Conversion Application, the Registration Statement
and the Prospectus of such documents and exhibits is
accurate in all material respects and fairly presents
the information required to be shown.
(xviii) To such counsel's Actual Knowledge,
the Company and the Bank have conducted the
Conversion, in all material respects, in accordance
with all applicable requirements of the Plan and
applicable federal law, except
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that no opinion is rendered with respect to (a) the
Conversion Application, the Registration Statement or
Prospectus, which are covered by other clauses of
this opinion, (b) the satisfaction of the
post-Conversion conditions in the OTS Regulations or
in the OTS approvals of the Conversion Application
and the Holding Company Application, (c) the
securities or "blue sky" laws of various
jurisdictions, and (d) the rules and regulations of
the NASD and/or the NYSE. The Plan complies in all
material respects with all applicable federal laws,
rules, regulations, decisions and orders including,
but not limited to, the Conversion Regulations; no
order has been issued by the OTS, the Commission, the
FDIC, or any state authority to suspend the Offering
or the use of the Prospectus, and no action for such
purposes has been instituted or, to such counsel's
Actual Knowledge, threatened by the OTS, the
Commission, the FDIC, or any state authority and, to
such counsel's Actual Knowledge, no person has sought
to obtain regulatory or judicial review of the final
action of the OTS, approving the Plan, the Conversion
Application, the Holding Company Application or the
Prospectus.
(xix) To such counsel's Actual Knowledge, the
Company and the Bank have obtained all material
licenses, permits and other governmental
authorizations currently required for the conduct of
their businesses and all such licenses, permits and
other governmental authorizations are in full force
and effect, and the Company and the Bank are in all
material respects complying therewith, except where
the failure to have such licenses, permits and other
governmental authorizations or the failure to be in
compliance therewith would not have a material
adverse effect on the business or operations of the
Bank and the Company, taken as a whole.
(xx) To such counsel's Actual Knowledge,
neither the Company nor the Bank is in violation of
its articles of incorporation and bylaws or its
Charter and bylaws, as appropriate or, to such
counsel's Actual Knowledge, in default or violation
of any obligation, agreement, covenant or condition
contained in any contract, indenture, mortgage, loan
agreement, note, lease or other instrument to which
it is a party or by which it or its property may be
bound, except for such defaults or violations which
would not have a material adverse impact on the
financial condition or results of operations of the
Company and the Bank on a consolidated basis; to
such counsel's Actual Knowledge, the execution and
delivery of this Agreement, the occurrence of the
obligations herein set forth and the consummation of
the transactions contemplated herein will not
conflict with or constitute a breach of, or default
under, or result in the creation or imposition of any
lien, charge or encumbrance upon any property or
assets of the Company or the Bank pursuant to any
material contract, indenture, mortgage, loan
agreement, note, lease or other
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instrument to which the Company or the Bank is a
party or by which any of them may be bound, or to
which any of the property or assets of the Company or
the Bank are subject (other than the establishment of
the liquidation account); and, such action will not
result in any violation of the provisions of the
certificate of incorporation or bylaws of the Company
or the Charter or bylaws of the Bank or, to such
counsel's Actual Knowledge, result in any violation
of any applicable federal law, act, regulation
(except that no opinion with respect to the
securities and blue sky laws of various jurisdictions
or the rules or regulations of the NASD need be
rendered) or order or court order, writ, injunction
or decree.
(xxi) The Company's articles of
incorporation and bylaws comply in all material
respects with the Delaware General Corporation Law
("GCL"). The Bank's charter and bylaws comply in all
material respects with the rules and regulations of
the OTS.
(xxii) To such counsel's Actual Knowledge,
neither the Company nor the Bank is in violation of
any directive from the OTS or the FDIC to make any
material change in the method of conducting its
respective business.
(xxiii) The information in the Prospectus
under the captions "Regulation," "The Conversion,"
"Restrictions on Acquisition of the Company and the
Bank" and "Description of Capital Stock of the
Company," to the extent that such information
constitutes matters of law, summaries of legal
matters, documents or proceedings, or legal
conclusions, has been reviewed by such counsel and is
correct in all material respects. The description of
the Conversion process under the caption "The
Conversion" in the Prospectus has been reviewed by
such counsel and fairly describes such process in all
material respects. The discussion of statutes or
regulations described or referred to in the
Prospectus are accurate summaries and fairly present
the information required to be shown. The
information under the caption "The Conversion - Tax
Aspects" has been reviewed by such counsel and fairly
describes the opinions rendered by Elias, Matz,
Xxxxxxx & Xxxxxxx L.L.P. and Xxxxxx Xxxxxxxx LLP to
the Company and the Bank with respect to such
matters.
In addition, such counsel shall state that
during the preparation of the Conversion Application,
the Registration Statement and the Prospectus, they
participated in conferences with certain officers of,
the independent public and internal accountants for,
and other representatives of the Company and the
Bank, at which conferences the contents of the
Conversion Application, the Registration Statement
and the Prospectus and related matters were discussed
and, while such counsel have not confirmed the
accuracy or completeness of or otherwise verified the
information
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contained in the Conversion Application, the
Registration Statement or the Prospectus, and do not
assume any responsibility for such information, based
upon such conferences and a review of documents
deemed relevant for the purpose of rendering their
view (relying as to materiality as to factual matters
on certificates of officers and other factual
representations by the Company and the Bank), nothing
has come to their attention that would lead them to
believe that the Conversion Application, the
Registration Statement, the Prospectus, or any
amendment or supplement thereto (other than the
financial statements, the notes thereto, and other
tabular, financial, statistical and appraisal data
included therein as to which no view need be
rendered) contained an untrue statement of a material
fact or omitted to state a material fact required to
be stated therein or necessary to make the statements
therein, in light of the circumstances under which
they were made, not misleading.
In giving such opinion, such counsel may rely
as to all matters of fact on certificates of officers
or directors of the Company and the Bank and
certificates of public officials. Such counsel's
opinion shall be limited to matters governed by
federal banking and securities laws. The opinion of
Elias, Matz, Xxxxxxx & Xxxxxxx L.L.P. shall be
governed by the Legal Opinion Accord ("Accord") of
the American Bar Association Section of Business Law
(1991). The term "Actual Knowledge" as used herein
shall have the meaning set forth in the Accord. For
purposes of such opinion, no proceedings shall be
deemed to be pending, no order or stop order shall be
deemed to be issued, and no action shall be deemed to
be instituted unless, in each case, a director or
executive officer of the Company or the Bank shall
have received a copy of such proceedings, order, stop
order or action. In addition, such opinion may be
limited to present statutes, regulations and judicial
interpretations and to facts as they presently exist;
in rendering such opinion, such counsel need assume
no obligation to revise or supplement it should the
present laws be changed by legislative or regulatory
action, judicial decision or otherwise; and such
counsel need express no view, opinion or belief with
respect to whether any proposed or pending
legislation, if enacted, or any proposed or pending
regulations or policy statements issued by any
regulatory agency, whether or not promulgated
pursuant to any such legislation, would affect the
validity of the Conversion or any aspect thereof.
Such counsel may assume that any agreement is the
valid and binding obligation of any parties to such
agreement other than the Company or the Bank.
The favorable opinion, dated as of the
Closing Date and addressed to the Agent and for their
benefit, of the Bank's local counsel, in form and
substance to the effect that, to the best of such
counsel's knowledge, (i) the Company and the Bank
have good and marketable title to all properties
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and assets which are material to the business of the
Company and the Bank and to those properties and
assets described in the Registration Statement and
Prospectus, as owned by them, free and clear of all
liens, charges, encumbrances or restrictions, except
such as are described in the Registration Statement
and Prospectus, or are not material in relation to
the business of the Company and the Bank considered
as one enterprise; (ii) all of the leases and
subleases material to the business of the Company and
the Bank under which the Company and the Bank hold
properties, as described in the Registration
Statement and Prospectus, are in full force and
effect; and (iii) the Bank is duly qualified as a
foreign corporation to transact business and is in
good standing in each jurisdiction in which its
ownership of property or leasing of property or the
conduct of its business requires such qualification,
unless the failure to be so qualified in one or more
of such jurisdictions would not have a material
adverse effect on the condition, financial or
otherwise, or the business, operations or income of
the Bank.
(d) At the Closing Date, the Agent shall have received
the favorable opinion, dated as of the Closing Date,
of Silver, Xxxxxxxx & Taff, L.L.P., the Agent's
counsel, with respect to such matters as the Agent
may reasonably require. Such opinion may rely upon
the opinions of counsel to the Company and the Bank,
and as to matters of fact, upon certificates of
offers and directors of the Company and the Bank
delivered pursuant hereto or as such counsel shall
reasonably request.
(e) At the Closing Date, the Agent shall receive a
certificate of the Chief Executive Officer and the
Principal Accounting Officer of the Company and the
Bank in form and substance reasonably satisfactory to
the Agent's Counsel, dated as of such Closing Date,
to the effect that: (i) they have carefully reviewed
the Prospectus and, in their opinion, at the time the
Prospectus became authorized for final use, the
Prospectus did not contain any untrue statement of a
material fact or omit to state a material fact
necessary in order to make the statements therein, in
light of the circumstances under which they were
made, not misleading; (ii) since the date the
Prospectus became authorized for final use, no event
has occurred which should have been set forth in an
amendment or supplement to the Prospectus which has
not been so set forth, including specifically, but
without limitation, any material adverse change in
the condition, financial or otherwise, or in the
earnings, capital, properties or business of the
Company or the Bank, and the conditions set forth in
this Section 7 have been satisfied; (iii) since the
respective dates as of which information is given in
the Registration Statement and the Prospectus, there
has been no material adverse change in the condition,
financial or otherwise, or in the earnings, capital
or properties of the Company or the Bank,
independently,
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30
or of the Company and the Bank, considered as one
enterprise, whether or not arising in the ordinary
course of business; (iv) the representations and
warranties in Section 4 are true and correct with the
same force and effect as though expressly made at and
as of the Closing Date; (v) the Company and the Bank
have complied in all material respects with all
agreements and satisfied all conditions on their part
to be performed or satisfied at or prior to the
Closing Date and will comply in all material respects
with all obligations to be satisfied by them after
the Conversion; (vi) no stop order suspending the
effectiveness of the Registration Statement has been
initiated or, to the best knowledge of the Company or
the Bank, threatened by the Commission or any state
authority; (vii) no order suspending the Offering,
the Conversion, the acquisition of all of the shares
of the Bank by the Company or the effectiveness of
the Prospectus has been issued and no proceedings for
that purpose are pending or, to the best knowledge of
the Company or the Bank, threatened by the OTS, the
Commission, the FDIC, or any state authority; and
(viii) to the best knowledge of the Company or the
Bank, no person has sought to obtain review of the
final action of the OTS approving the Plan.
(f) Prior to and at the Closing Date: (i) in the
reasonable opinion of the Agent, there shall have
been no material adverse change in the condition,
financial or otherwise, or in the earnings or
business of the Company or the Bank independently, or
of the Company and the Bank, considered as one
enterprise, from that as of the latest dates as of
which such condition is set forth in the Prospectus
other than transactions referred to or contemplated
therein; (ii) the Company or the Bank shall not have
received from the OTS or the FDIC any direction (oral
or written) to make any material change in the method
of conducting their business with which it has not
complied (which direction, if any, shall have been
disclosed to the Agent) or which materially and
adversely would affect the business, operations or
financial condition or income of the Company and the
Bank taken as a whole; (iii) the Company and the Bank
shall not have been in default (nor shall an event
have occurred which, with notice or lapse of time or
both, would constitute a default) under any provision
of any agreement or instrument relating to any
outstanding indebtedness; (iv) no action, suit or
proceeding, at law or in equity or before or by any
federal or state commission, board or other
administrative agency, shall be pending or, to the
knowledge of the Company or the Bank, threatened
against the Company or the Bank or affecting any of
their properties wherein an unfavorable decision,
ruling or finding would materially and adversely
affect the business, operations, financial condition
or income of the Company and the Bank taken as a
whole; and (v) the Shares have been qualified or
registered for offering and sale or exempted
therefrom under
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31
the securities or blue sky laws of the jurisdictions
as the Agent shall have reasonably requested and as
agreed to by the Company and the Bank.
(g) Concurrently with the execution of this Agreement,
the Agent shall receive a letter from KPMG Peat
Marwick LLP dated as of the date of the Prospectus
and addressed to the Agent: (i) confirming that KPMG
Peat Marwick LLP is a firm of independent public
accounts within the meaning of Rule 101 of the Code
of Professional Ethics of the American Institute of
Certified Public Accountants and applicable
regulations of the OTS and stating in effect that in
its opinion the consolidated financial statements,
schedules and related notes of the Bank as of
December 31, 1996 and 1995 and for each of the three
years in the period ended December 31, 1996, as are
included in the Prospectus and covered by their
opinion included therein, comply as to form in all
material respects with the applicable accounting
requirements and related published rules and
regulations of the OTS and the 1933 Act; (ii) stating
in effect that, on the basis of certain agreed upon
procedures (but not an audit in accordance with
generally accepted auditing standards) consisting of
a reading of the latest available unaudited interim
consolidated financial statements of the Bank
prepared by the Bank, a reading of the minutes of the
meetings of the Board of Directors and members of the
Bank and consultations with officers of the Bank
responsible for financial and accounting matters,
nothing came to their attention which caused them to
believe that: (A) the unaudited financial statements
included in the Prospectus are not in conformity with
the 1933 Act, applicable accounting requirements of
the OTS and generally accepted accounting principles
applied on a basis substantially consistent with that
of the audited financial statements included in the
Prospectus; or (B) during the period from the date of
the latest unaudited consolidated financial
statements included in the Prospectus to a specified
date not more than three business days prior to the
date of the Prospectus, except as has been described
in the Prospectus, there was any increase in
borrowings, other than normal deposit fluctuations,
by the Bank; or (c) there was any decrease in the
consolidated net assets of the Bank at the date of
such letter as compared with amounts shown in the
latest unaudited consolidated statement of condition
included in the Prospectus; and (iii) stating that,
in addition to the audit referred to in their opinion
included in the Prospectus and the performance of the
procedures referred to in clause (ii) of this
subsection (f), they have compared with the general
accounting records of the Bank, which are subject to
the internal controls of the Bank, the accounting
system and other data prepared by the Bank, directly
from such accounting records, to the extent specified
in such letter, such amounts and/or percentages set
forth in the Prospectus as the Agent may reasonably
request; and they have reported on the results of
such comparisons.
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(h) At the Closing Date, the Agent shall receive a letter
dated the Closing Date, addressed to the Agent,
confirming the statements made by Xxxxxx Xxxxxxxx LLP
in the letter delivered by it pursuant to subsection
(f) of this Section 7, the "specified date" referred
to in clause (ii) of subsection (f) thereof to be a
date specified in such letter, which shall not be
more than three business days prior to the Closing
Date.
(i) At the Closing Date, the Agent shall receive a letter
from RP Financial LC, dated the date thereof and
addressed to counsel for the Agent (i) confirming
that said firm is independent of the Company and the
Bank and is experienced and expert in the area of
corporate appraisals within the meaning of Title 12
of the Code of Federal Regulations, Section
563b.7(f)(1)(i), (ii) stating in effect that the
Appraisal prepared by such firm complies in all
material respects with the applicable requirements of
Title 12 of the Code of Federal Regulations, and
(iii) further stating that their opinion of the
aggregate pro forma market value of the Company and
the Bank expressed in their Appraisal dated as of
July 17, 1997, and most recently updated, remains in
effect.
(j) The Company and the Bank shall not have sustained
since the date of the latest financial statements
included in the Prospectus any material loss or
interference with its business from fire, explosion,
flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or
governmental action, order or decree, otherwise than
as set forth or contemplated in the Registration
Statement and Prospectus and since the respective
dates as of which information is given in the
Registration Statement and Prospectus, there shall
not have been any change in the long-term debt of the
Company or the Bank other than debt incurred in
relation to the purchase of Shares by the Bank's
Eligible Plans, or any change, or any development
involving a prospective change, in or affecting the
general affairs, management, financial position,
stockholders' equity or results of operations of the
Company or the Bank, otherwise than as set forth or
contemplated in the Registration Statement and
Prospectus, the effect of which, in any such case
described above, is in KBW's reasonable judgment
sufficiently material and adverse as to make it
impracticable or inadvisable to proceed with the
Subscription Offering or the delivery of the Shares
on the terms and in the manner contemplated in the
Prospectus.
(k) At or prior to the Closing Date, the Agent shall
receive: (i) a copy of the letters from the OTS
approving the Conversion Application and authorizing
the use of the Prospectus; (ii) a copy of the order
from the Commission declaring the Registration
Statement effective; (iii) certificate of good
standing from the State of Delaware evidencing the
good standing of the Company; (iv) a certificate from
the FDIC evidencing the Bank's insurance
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33
of accounts; (v) a certificate of the FHLB-New York
evidencing the Bank's membership thereof; (vi) a copy
of the letter from the OTS approving the Company's
Holding Company Application; and (vii) a copy of the
Bank's federal stock charter.
(l) 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
NYSE or in the over-the-counter market, or quotations
halted generally on the Nasdaq Stock Market, or
minimum or maximum prices for trading have been
fixed, or maximum ranges for prices for securities
have been required by either of such exchanges or the
NASD or by order of the Commission or any other
governmental authority; (ii) a general moratorium on
the operations of commercial banks, federal savings
institutions or a general moratorium on the
withdrawal of deposits from commercial banks or
federal savings institutions declared by federal
authorities; (iii) the engagement by the United
States in hostilities which have resulted in the
declaration, on or after the date hereof, of a
national emergency or war; or (iv) a material decline
in the price of equity or debt securities if the
effect of such a declaration or decline, in the
Agent's reasonable judgement, 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.
(m) At or prior to the Closing Date, counsel to the Agent
shall have been furnished with such documents and
opinions as they may reasonably require for the
purpose of enabling them to pass upon the sale of the
Shares as herein contemplated and related proceedings
or in order to evidence the occurrence or
completeness of any of the representations or
warranties, or the fulfillment of any of the
conditions, herein contained; and all proceedings
taken by the Company or the Bank in connection with
the Conversion and the sale of the Shares as herein
contemplated shall be satisfactory in form and
substance to KBW and its counsel.
SECTION 8. INDEMNIFICATION.
(a) The Company and the Bank jointly and severally agree
to indemnify and hold harmless the Agent, its
respective officers and directors, employees and
agents, and each person, if any, who controls the
Agent within the meaning of Section 15 of the 1933
Act or Section 20(a) of the 1934 Act, against any and
all loss, liability, claim, damage or expense
whatsoever (including but not limited to settlement
expenses), joint or several, that the Agent or any of
them may suffer or to which the Agent and any such
persons may become subject under all applicable
federal or state laws or otherwise, and to promptly
reimburse the Agent and any such persons upon
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written demand for any expense (including reasonable
fees and disbursements of counsel) incurred by the
Agent or any of them in connection with
investigating, preparing or defending any actions,
proceedings or claims (whether commenced or
threatened) to the extent such losses, claims,
damages, liabilities or actions: (i) arise out of or
are based upon any untrue statement or alleged untrue
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), the
Conversion Application (or any amendment or
supplement thereto), the Holding Company Application
or any instrument or document executed by the Company
or the Bank or based upon written information
supplied by the Company or the Bank filed in any
state or jurisdiction to register or qualify any or
all of the Shares or to claim an exemption therefrom,
or provided to any state or jurisdiction to exempt
the Company as a broker-dealer or its officers,
directors and employees as broker-dealers or agent,
under the securities laws thereof (collectively, the
"Blue Sky Application"), or any document,
advertisement, oral statement or communication
("Sales Information") prepared, made or executed by
or on behalf of the Company or the Bank with their
consent or based upon written or oral information
furnished by or on behalf of the Company or the Bank,
whether or not filed in any jurisdiction, in order to
qualify or register the Shares or to claim an
exemption therefrom under the securities laws
thereof; (ii) arise out of or are based upon the
omission or alleged omission to state in any of the
foregoing documents or information, a material fact
required to be stated therein or necessary to make
the statements therein, in light of the circumstances
under which they were made, not misleading; or (iii)
arise from any theory of liability whatsoever
relating to or arising from or based upon the
Registration Statement (or any amendment or
supplement thereto), preliminary or final Prospectus
(or any amendment or supplement thereto), the
Conversion Application (or any amendment or
supplement thereto), any Blue Sky Application or
Sales Information or other documentation distributed
in connection with the Conversion; provided, however,
that no indemnification is required under this
paragraph (a) to the extent such losses, claims,
damages, liabilities or actions arise out of or are
based upon any untrue material statement or alleged
untrue material statement in, or material omission or
alleged material omission from, the Registration
Statement (or any amendment or supplement thereto),
preliminary or final Prospectus (or any amendment or
supplement thereto), the Conversion Application, any
Blue Sky Application or Sales Information made in
reliance upon and in conformity with information
furnished in writing to the Company or the Bank by
the Agent or its counsel regarding the Agent
provided, that it is agreed and understood that the
only information furnished in writing to the Company
or the Bank by the Agent regarding the Agent is set
forth in the Xxxxxxxxxx
00
00
under the caption "The Conversion--Marketing
Arrangements"; and, provided further, that such
indemnification shall be to the extent permitted by
the Commissioner, the OTS, the FDIC and the Board of
Governors of the Federal Reserve. The
indemnification provided for in this paragraph (a)
shall not be applicable with respect to any loss,
liability, claim, damage, or expense whatsoever if it
is determined by final judgment of a court having
jurisdiction over the matter that such loss,
liability, claim, damage or expense was primarily a
result of the Agent's willful misconduct or gross
negligence.
(b) The Agent agrees to indemnify and hold harmless the
Company and the Bank, their directors and officers
and each person, if any, who controls the Company or
the Bank within the meaning of Section 15 of the 1933
Act or Section 20(a) of the 1934 Act against any and
all loss, liability, claim, damage or expense
whatsoever (including but not limited to settlement
expenses), joint or several, which they, or any of
them, may suffer or to which they, or any of them may
become subject under all applicable federal and state
laws or otherwise, and to promptly reimburse the
Company, the Bank, and any such persons upon written
demand for any expenses (including reasonable fees
and disbursements of counsel) incurred by them, or
any of them, in connection with investigating,
preparing or defending any actions, proceedings or
claims (whether commenced or threatened) to the
extent such losses, claims, damages, liabilities or
actions: (i) arise out of or are based upon any
untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement
(or any amendment or supplement thereto), the
Conversion Application (or any amendment or
supplement thereto), the preliminary or final
Prospectus (or any amendment or supplement thereto),
any Blue Sky Application or Sales Information, (ii)
are based upon the omission or alleged omission to
state in any of the foregoing documents a material
fact required to be stated therein or necessary to
make the statements therein, in the light of the
circumstances under which they were made, not
misleading, or (iii) arise from any theory of
liability whatsoever relating to or arising from or
based upon the Registration Statement (or any
amendment or supplement thereto), preliminary or
final Prospectus (or any amendment or supplement
thereto), the Conversion Application (or any
amendment or supplement thereto), or any Blue Sky
Application or Sales Information or other
documentation distributed in connection with the
Conversion; provided, however, that the Agent's
obligations under this Section 8(b) shall exist only
if and only to the extent (i) that such untrue
statement or alleged untrue statement was made in, or
such material fact or alleged material fact was
omitted from, the Registration Statement (or any
amendment or supplement thereto), the preliminary or
final Prospectus (or any amendment or supplement
thereto), the Conversion Application (or any
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36
amendment or supplement thereto), any Blue Sky
Application or Sales Information in reliance upon and
in conformity with information furnished in writing
to the Company or the Bank by the Agent or its
counsel regarding the Agent. Provided, that it is
agreed and understood that the only information
furnished in writing to the Company or the Bank by
the Agent regarding the Agent is set forth in the
Prospectus under the caption "The
Conversion--Marketing Arrangements". The
indemnification provided for in this paragraph (b)
shall not be applicable with respect to any loss,
liability, claim, damage, or expense whatsoever if it
is determined by final judgment of a court having
jurisdiction over the matter that such loss,
liability, claim, damage or expense was primarily a
result of the Company's or the Bank's willful
misconduct or gross negligence.
(c) Each indemnified party shall give prompt written
notice to each indemnifying party of any action,
proceeding, claim (whether commenced or threatened),
or suit instituted against it in respect of which
indemnity may be sought hereunder, but failure to so
notify an indemnifying party shall not relieve it
from any liability which it may have on account of
this Section 8 or otherwise. An indemnifying party
may participate at its own expense in the defense of
such action. In addition, if it so elects within a
reasonable time after receipt of such notice, an
indemnifying party, jointly with any other
indemnifying parties receiving such notice, may
assume defense of such action with counsel chosen by
it and approved by the indemnified parties that are
defendants in such action, unless such indemnified
parties reasonably object to such assumption on the
ground that there may be legal defenses available to
them that are different from or in addition to those
available to such indemnifying party. If an
indemnifying party assumes the defense of such
action, the indemnifying parties shall not be liable
for any fees and expenses of counsel for the
indemnified parties incurred thereafter in connection
with such action, proceeding or claim, other than
reasonable costs of investigation. In no event shall
the indemnifying parties be liable for the fees and
expenses of more than one separate firm of attorneys
(and any special counsel that said firm may retain)
for each indemnified party in connection with any one
action, proceeding or claim or separate but similar
or related actions, proceedings or claims in the same
jurisdiction arising out of the same general
allegations or circumstances.
(d) The agreements contained in this Section 8 and in
Section 9 hereof and the representations and
warranties of the Company and the Bank set forth in
this Agreement shall remain operative and in full
force and effect regardless of: (i) any investigation
made by or on behalf of agent or their officers,
directors or controlling persons, agent or employees
or by or on
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behalf of the Company or the Bank or any officers,
directors or controlling persons, agent or employees
of the Company or the Bank; (ii) delivery of and
payment hereunder for the Shares; or (iii) any
termination of this Agreement.
SECTION 9. CONTRIBUTION. In order to provide for just and equitable
contribution in circumstances in which the indemnification provided for in
Section 8 is due in accordance with its terms but is for any reason held by a
court to be unavailable from the Company, the Bank or the Agent, the Company,
the Bank and the Agent shall contribute to the aggregate losses, claims,
damages and liabilities (including any investigation, legal and other expenses
incurred in connection with, and any amount paid in settlement of, any action,
suit or proceeding of any claims asserted, but after deducting any contribution
received by the Company, the Bank or the Agent from persons other than the
other party thereto, who may also be liable for contribution) in such
proportion so that the Agent is responsible for that portion represented by the
percentage that the fees paid to the Agent pursuant to Section 2 of this
Agreement (not including expenses) bears to the gross proceeds received by the
Company from the sale of the Shares in the Offering, and the Company and the
Bank 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 8 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 Company and the Bank on the one hand and the Agent on the
other in connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities (or actions, proceedings or claims in
respect thereto), but also the relative benefits received by the Company and
the Bank on the one hand and the Agent on the other from the Offering (before
deducting expenses). The relative fault shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company and/or the Bank on the one hand
or the Agent on the other and the parties' relative intent, good faith,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Company, the Bank and the Agent agree that it would
not be just and equitable if contribution pursuant to this Section 9 were
determined by pro-rata allocation or by any other method of allocation which
does not take into account the equitable considerations referred to above in
this Section 9. The amount paid or payable by an indemnified party as a result
of the losses, claims, damages or liabilities (or actions, proceedings or
claims in respect thereof) referred to above in this Section 9 shall be deemed
to include any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such action, proceeding
or claim. It is expressly agreed that the Agent shall not be liable for any
loss, liability, claim, damage or expense or be required to contribute any
amount which in the aggregate exceeds the amount paid (excluding reimbursable
expenses) to the Agent under this Agreement. It is understood that the above
stated limitation on the Agent's liability is essential to the Agent and that
the Agent would not have entered into this Agreement if such limitation had not
been agreed to by the parties to this Agreement. No person found guilty of any
fraudulent misrepresentation (within the meaning of Section 11(f) of the 0000
Xxx) shall be entitled to contribution from any person who was not found guilty
of such fraudulent
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misrepresentation. The obligations of the Company and the Bank under this
Section 9 and under Section 8 shall be in addition to any liability which the
Company and the Bank may otherwise have. For purposes of this Section 9, each
of the Agent's, the Company's or the Bank's officers and directors and each
person, if any, who controls the Agent or the Company or the Bank within the
meaning of the 1933 Act and the 1934 Act shall have the same rights to
contribution as the Agent, the Company or the Bank. Any party entitled to
contribution, promptly after receipt of notice of commencement of any action,
suit, claim or proceeding against such party in respect of which a claim for
contribution may be made against another party under this Section 9, will
notify such party from whom contribution may be sought, but the omission to so
notify such party shall not relieve the party from whom contribution may be
sought from any other obligation it may have hereunder or otherwise than under
this Section 9.
SECTION 10. SURVIVAL OF AGREEMENTS, REPRESENTATIONS AND INDEMNITIES.
The respective indemnities of the Company, the Bank and the Agent and the
representations and warranties and other statements of the Company, the Bank
and the Agent set forth in or made pursuant to this Agreement shall remain in
full force and effect, regardless of any termination or cancellation of this
Agreement or any investigation made by or on behalf of the Agent, the Company,
the Bank or any controlling person referred to in Section 8 hereof, and shall
survive the issuance of the Shares, and any successor or assign of the Agent,
the Company, the Bank, and any such controlling person shall be entitled to the
benefit of the respective agreements, indemnities, warranties and
representations.
SECTION 11. TERMINATION. The Agent may terminate this Agreement by
giving the notice indicated below in this Section 11 at any time after this
Agreement becomes effective as follows:
(a) In the event the Company fails to sell the required
minimum number of the Shares by ________ __, 199_,
and in accordance with the provisions of the Plan or
as required by the Conversion Regulations, and
applicable law, this Agreement shall terminate upon
refund by the Company to each person who has
subscribed for or ordered any of the Shares the full
amount which it may have received from such person,
together with interest as provided in the Prospectus,
and no party to this Agreement shall have any
obligation to the other hereunder, except for payment
by the Company and/or the Bank as set forth in
Sections 2(a), 6, 8 and 9 hereof.
(b) If any of the conditions specified in Section 7 shall
not have been fulfilled when and as required by this
Agreement unless waived in writing, or by the Closing
Date, this Agreement and all of the Agent's
obligations hereunder may be cancelled by the Agent
by notifying the Company and the Bank of such
cancellation in writing or by telegram at any time at
or prior to the Closing Date, and any such
cancellation shall be without liability of any party
to any other party except as otherwise provided in
Sections 2(a), 6, 8 and 9 hereof.
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(c) If the Agent elects to terminate this Agreement as
provided in this Section, the Company and the Bank
shall be notified promptly by telephone or telegram,
confirmed by letter.
The Company and the Bank may terminate this Agreement in the event the
Agent is in material breach of the representations and warranties or covenants
contained in Section 5 and such breach has not been cured after the Company and
the Bank have provided KBW with notice of such breach.
This Agreement may also be terminated by mutual written consent of the
parties hereto.
SECTION 12. NOTICES. All communications hereunder, except as herein
otherwise specifically provided, shall be mailed in writing and if sent to the
Agent shall be mailed, delivered or telegraphed and confirmed to Xxxxx,
Xxxxxxxx & Xxxxx, Inc., 0 Xxxxx Xxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Xxxxxx Xxxxx (with a copy to Silver, Xxxxxxxx & Xxxx,
L.L.P., Attention: Xxxxxx X. Xxxxxxxxx, P.C. and, if sent to the Company and
the Bank, shall be mailed, delivered or telegraphed and confirmed to the
Company and the Bank at 00 Xxxxx Xxxxxx, Xxxxxx Xxxxxx, Xxx Xxxx 00000,
Attention: Xxxxx X. Xxxxx, President (with a copy to Elias, Matz, Xxxxxxx &
Xxxxxxx L.L.P., Attention: Xxxx X. Xxxxxxxxx, Esq.).
SECTION 13. PARTIES. The Company and the Bank shall be entitled to
act and rely on any request, notice, consent, waiver or agreement purportedly
given on behalf of the Agent when the same shall have been given by the
undersigned. The Agent shall be entitled to act and rely on any request,
notice, consent, waiver or agreement purportedly given on behalf of the Company
or the Bank, when the same shall have been given by the undersigned or any
other officer of the Company or the Bank. This Agreement shall inure solely to
the benefit of, and shall be binding upon, the Agent, the Company, the Bank,
and their respective successors and assigns, and no other person shall have or
be construed to have any legal or equitable right, remedy or claim under or in
respect of or by virtue of this Agreement or any provision herein contained.
It is understood and agreed that this Agreement is the exclusive agreement
among the parties hereto, and supersedes any prior agreement among the parties
and may not be varied except in writing signed by all the parties.
SECTION 14. CLOSING. The closing for the sale of the Shares shall
take place on the Closing Date at such location as mutually agreed upon by the
Agent and the Company and the Bank. At the closing, the Company and the Bank
shall deliver to the Agent in next day funds the commissions, fees and expenses
due and owing to the Agent as set forth in Sections 2 and 6 hereof and the
opinions and certificates required hereby and other documents deemed reasonably
necessary by the Agent shall be executed and delivered to effect the sale of
the Shares as contemplated hereby and pursuant to the terms of the Prospectus.
SECTION 15. PARTIAL INVALIDITY. In the event that any term,
provision or covenant herein or the application thereof to any circumstance or
situation shall be invalid or unenforceable, in whole or in part, the remainder
hereof and the application of said term, provision or covenant to
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any other circumstances or situation shall not be affected thereby, and each
term, provision or covenant herein shall be valid and enforceable to the full
extent permitted by law.
SECTION 16. CONSTRUCTION. This Agreement shall be construed in
accordance with the laws of the State of New York.
SECTION 17. COUNTERPARTS. This Agreement may be executed in separate
counterparts, each of which so executed and delivered shall be an original, but
all of which together shall constitute but one and the same instrument.
If the foregoing correctly sets forth the arrangement among the
Company, the Bank and the Agent, please indicate acceptance thereof in the
space provided below for that purpose, whereupon this letter and the Agent's
acceptance shall constitute a binding agreement.
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SECTION 18. ENTIRE AGREEMENT. This Agreement, including schedules
and exhibits hereto, which are integral parts hereof and incorporated as though
set forth in full, constitutes the entire agreement between the parties
pertaining to the subject matter hereof superseding any and all prior or
contemporaneous oral or prior written agreements, proposals, letters of intent
and understandings, and cannot be modified, changed, waived or terminated
except by a writing which expressly states that it is an amendment,
modification or waiver, refers to this Agreement and is signed by the party to
be charged. No course of conduct or dealing shall be construed to modify,
amend or otherwise affect any of the provisions hereof.
Very truly yours,
STATEN ISLAND BANCORP, INC. STATEN ISLAND SAVINGS BANK
By Its Authorized By Its Authorized
Representative: Representative:
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Xxxxx X. Xxxxx Xxxxx X. Xxxxx
President and Chief Operating Officer President and Chief Operating Officer
Accepted as of the date first above written
XXXXX, XXXXXXXX & XXXXX, INC.
By Its Authorized
Representative:
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