ST&B DRAFT 3/18/2005
Exhibit 1.1
UP TO 488,750,000 SHARES
XXXXXX CITY BANCORP, INC.
COMMON STOCK
FORM OF AGENCY AGREEMENT
[______], 2005
XXXXXX BROTHERS INC.
XXXX XXXX & CO., INC.
As Representatives of the Several Agents
named in Schedule I attached hereto,
c/x Xxxxxx Brothers Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Xxxxxx City Bancorp, Inc., a Delaware corporation (the "COMPANY"),
Xxxxxx City, MHC, a New Jersey chartered mutual holding company which owns
approximately 66% of the common stock of the Company (the "MHC"), and Xxxxxx
City Savings Bank, a federally chartered stock savings bank and a wholly owned
subsidiary of the Company (together with its subsidiaries, the "BANK" and,
together with the Company and the MHC, the "XXXXXX CITY PARTIES"), hereby
confirm, jointly and severally, their agreement with Xxxxxx Brothers Inc.
("XXXXXX"), Xxxx Xxxx & Co., Inc. ("XXXX XXXX", and together with Xxxxxx, the
"REPRESENTATIVES") and the other agents named in Schedule I hereto
(collectively, together with the Representatives, the "AGENTS") to serve as
exclusive agents of the Company to assist the Company in the offer and sale of
up to 488,750,000 shares (the "STOCK") of the Company's Common Stock, par value
$0.01 per share (the "COMMON STOCK").
Section 1. The Offering. The MHC, in accordance with the Amended and
Restated Plan of Conversion and Reorganization adopted [__________] (the
"PLAN"), intends to convert and reorganize from a New Jersey chartered mutual
holding company into an interim federal mutual holding company, which will
immediately merge with and into the Company, with the Company as the surviving
entity (the "CONVERSION").
In connection with the Conversion, the Company will offer and sell the Stock (1)
on a priority basis to the persons identified in Section 4.03 of the Plan,
subject to the allocation procedures and purchase limitations set forth in the
Plan (such offering, the "SUBSCRIPTION OFFERING"), and (2) to the extent not
sold in the Subscription Offering, to the public through the Agents in a
syndicated offering led and managed by the Representatives, such offering to be
made on a best efforts basis (such offering, the
"SYNDICATED OFFERING" and, together with the Subscription Offering, the
"OFFERING"). All capitalized terms used but not defined in this Agreement shall
have the meanings set forth in the Plan.
The Company will sell the Stock in the Offering at $10.00 per share. If the
number of shares of Common Stock to be sold in the Offering is increased or
decreased in accordance with the Plan, the term "Stock" shall mean such greater
or lesser number of shares, where applicable.
In connection with the Conversion and the Offering, the MHC and/or the Company
has filed (i) with the Office of Thrift Supervision (the "OTS") the required
applications and amendments thereto to complete the Conversion, the Offering and
any other actions which require the approval of the OTS (such application, as it
may be amended, supplemented or modified from and after the date hereof, the
"OTS APPLICATION") and with the New Jersey Department of Banking and Insurance
(the "NJ DOBI") the required applications and amendments thereto to convert to a
federal charter and any other actions which require the approval of the NJ DOBI
(such application, as it may be amended, supplemented or modified from and after
the date hereof, the "NJ APPLICATION" and, together with the OTS Application,
the "CONVERSION APPLICATIONS") in accordance with all applicable laws and
regulations (collectively, the "CONVERSION REGULATIONS").
Section 2. Representations, Warranties and Agreements of the Xxxxxx City
Parties. The Xxxxxx City Parties jointly and severally represent, warrant and
agree that:
(a) A registration statement on Form S-3 with respect to the Stock has
(i) been prepared by the Company in conformity with the requirements of the
Securities Act of 1933, as amended (the "SECURITIES ACT"), and the rules and
regulations (the "RULES AND REGULATIONS") of the Securities and Exchange
Commission (the "COMMISSION") thereunder, (ii) been filed with the Commission
under the Securities Act and (iii) become effective under the Securities Act.
Copies of such registration statement and each of the amendments thereto have
been delivered by the Company to you. As used in this Agreement, "EFFECTIVE
TIME" means the date and the time as of which such registration statement, or
the most recent post-effective amendment thereto, if any, was declared effective
by the Commission; "EFFECTIVE DATE" means the date of the Effective Time;
"REGISTRATION STATEMENT" means such registration statement, as amended at the
Effective Time; "SUBSCRIPTION OFFERING PROSPECTUS" means the prospectus relating
to the Subscription Offering that is included in the Registration Statement at
the Effective Time; "SYNDICATED OFFERING PROSPECTUS" means the prospectus
relating to the Syndicated Offering that is included in the Registration
Statement at the Effective Time; and "PROSPECTUSES" means the Subscription
Offering Prospectus and the Syndicated Offering Prospectus, except that if any
prospectus is filed by the Company pursuant to Rule 424(b) or (c) of the Rules
and Regulations differing from either of the prospectuses included in the
Registration Statement at the Effective Time, the terms "SUBSCRIPTION OFFERING
PROSPECTUS", "SYNDICATED OFFERING
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PROSPECTUS" and "PROSPECTUSES" shall refer to the applicable prospectus or
prospectuses filed pursuant to Rule 424(b) or (c) from and after the time said
prospectus or prospectuses are filed with the Commission and shall include any
supplements and amendments thereto from and after their dates of use or
effectiveness, respectively. A proxy statement for the annual meeting of the
stockholders of the Company (the "COMPANY PROXY STATEMENT"), at which the
stockholders of the Company will vote on the adoption of the Plan has (i) been
prepared by the Company in conformity with the requirements of the Securities
Exchange Act of 1934, as amended (the "EXCHANGE ACT"), and the rules and
regulations of the Commission thereunder, (ii) been filed with the Commission
under the Exchange Act and (iii) been mailed to the stockholders of the Company,
and a proxy statement for the special meeting of the depositors of the Bank (the
"BANK PROXY STATEMENT" and, together with the Company Proxy Statement, the
"PROXY STATEMENTS"), at which such depositors will vote on the adoption of the
Plan, has (i) been prepared by the Company in conformity with the requirements
of the Conversion Regulations and other applicable law and (ii) been mailed to
the depositors of the Bank. Any reference herein to either Prospectus or Proxy
Statement shall be deemed to refer to and include the documents incorporated by
reference therein, as of the date of such Prospectus or Proxy Statement; any
reference to any amendment or supplement to either Prospectus or Proxy Statement
shall be deemed to refer to and include any documents filed after the date of
such Prospectus or Proxy Statement under the Exchange Act and incorporated by
reference in such Prospectus or Proxy Statement; and any reference to any
amendment to the Registration Statement shall be deemed to refer to and include
any documents filed under the Exchange Act after the applicable effective date
of the Registration Statement that are incorporated by reference in the
Registration Statement. If the Company has filed an abbreviated registration
statement to register additional shares of Common Stock pursuant to Rule 462(b)
under the Securities Act (the "RULE 462 REGISTRATION STATEMENT"), then any
reference herein to the term "REGISTRATION STATEMENT" shall be deemed to include
such Rule 462 Registration Statement. The Commission has not issued any order
suspending the effectiveness of the Registration Statement or preventing or
suspending the use of any Prospectus or Proxy Statement or any of the documents
incorporated by reference therein and, to the best knowledge of the Xxxxxx City
Parties, no such action is pending or threatened.
(b) The Registration Statement and the Prospectuses conform, and any
further amendments or supplements to the Registration Statement or any
Prospectus will, when they become effective or are filed with the Commission, as
the case may be, conform in all respects to the requirements of the Securities
Act and the Rules and Regulations. The Proxy Statements conform, and any further
amendments or supplements to any Proxy Statement will, when they are filed with
the Commission and/or the OTS, as the case may be, and mailed to the
stockholders of the Company or the depositors of the Bank, as the case may be,
conform in all respects to the requirements of the Conversion Regulations and,
in the case of the Company Proxy Statement, the Exchange Act and the rules and
regulations of the Commission thereunder. The Registration Statement, the
Prospectuses, the Proxy Statements, the Conversion Applications and, when taken
together with the Prospectuses, any Marketing Materials
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and any Blue Sky Application (as such terms are defined in Section 8) do not,
and any further amendments or supplements to the Registration Statement or any
Prospectus, Proxy Statement, or Conversion Application and, when taken together
with the Prospectuses, any Blue Sky Application or Marketing Materials will not,
as of the applicable effective date (as to the Registration Statement, any
Conversion Application and any amendment or supplement thereto), as of the
applicable filing date and the date first used to confirm sales of the Stock (as
to any Prospectus, any amendment or supplement thereto and any Blue Sky
Application) and as of the date thereof (in the case of any Proxy Statement, any
amendment or supplement thereto and any Marketing Materials) 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 the case of any
Prospectus, in light of the circumstances under which they were made) not
misleading; provided that no representation or warranty is made as to
information contained in or omitted from the Registration Statement or the
Prospectuses in reliance upon and in conformity with written information
concerning the Agents furnished to the Company through the Representatives by or
on behalf of any Agent specifically for inclusion therein.
(c) The documents incorporated by reference in the Registration
Statement, any Prospectus and any Proxy Statement, when they were filed with the
Commission, conformed in all material respects to the requirements of the
Exchange Act and the rules and regulations of the Commission thereunder and none
of such documents 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 not misleading; and any further documents so filed and
incorporated by reference in the Registration Statement, any Prospectus, any
Proxy Statement or any further amendment or supplement thereto, when such
documents are filed with the Commission, will conform in all material respects
to the requirements of the Securities Act and the Rules and Regulations or the
Exchange Act and the rules and regulations of the Commission thereunder, as
applicable, and will not contain an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to make the
statements therein not misleading.
(d) The OTS Application and the NJ Application have been approved by
the OTS and the NJ DOBI, respectively, and such approvals remain in full force
and effect. Each of the Conversion Applications complies as to form in all
material respects with the applicable Conversion Regulations and any other
applicable rules and regulations of OTS and the NJ DOBI. All Marketing Materials
have been filed with the OTS and the NJ DOBI.
(e) No order has been issued by the OTS, the NJ DOBI, or any state
regulatory authority, preventing or suspending the use of any Prospectus, Proxy
Statement or Marketing Materials and no action by or before any such government
entity to revoke any approval, authorization or order of effectiveness related
to the Conversion or the Offering is pending or, to the best knowledge of the
Xxxxxx City Parties, threatened. To the best knowledge of the Xxxxxx City
Parties, no person has sought to
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obtain review of the approval by the OTS or the NJ DOBI of the Plan, the
Conversion or any Conversion Application pursuant to any statute or regulation.
(f) Each of the Company and its subsidiaries (as defined in Section
16) has been duly incorporated or organized, as the case may be, and is validly
existing as a federal savings bank, corporation or other business entity in good
standing under the laws of its jurisdiction of incorporation or organization, as
applicable, is duly qualified to do business and is in good standing as a
foreign corporation or other business organization, as applicable, in each
jurisdiction in which its ownership or lease of property or the conduct of its
businesses requires such qualification, and has all power and authority
necessary to own or hold its properties and to conduct the businesses in which
it is engaged; and none of the subsidiaries of the Company other than the Bank
is a "SIGNIFICANT SUBSIDIARY", as such term is defined in Rule 405 of the Rules
and Regulations. The MHC is, and at all times prior to the completion of the
Conversion will be, duly organized and validly existing and in good standing as
a mutual savings bank holding company under the laws of the State of New Jersey,
and is duly qualified to do business and is in good standing as a foreign
business organization in each jurisdiction in which its ownership or lease of
property or the conduct of its businesses requires such qualification, and has
all power and authority necessary to own or hold its properties and to conduct
the businesses in which it is engaged. The only direct and indirect subsidiaries
of the Xxxxxx City Parties are, in the case of the Bank, HudCiti Service
Corporation and HC Value Broker Services, Inc. (the "BANK SUBSIDIARIES"); in the
case of the Company, the Bank and the Bank Subsidiaries; and in the case of the
MHC, the Company, the Bank and the Bank Subsidiaries. Except as described in the
preceding sentence, none of the Xxxxxx City Parties, directly or indirectly,
controls any other corporation, limited liability company, partnership, joint
venture, association, trust or other business organization. Upon completion of
the Conversion, the only direct subsidiary of the Company will be the Bank.
(g) The Company has an authorized capitalization as set forth in the
Prospectuses, and all of the issued shares of capital stock of the Company have
been duly and validly authorized and issued, are fully paid and non-assessable
and conform to the description thereof contained in the Prospectuses; and all of
the issued shares of capital stock of each direct and indirect subsidiary of the
Company have been duly and validly authorized and issued and are fully paid and
non-assessable, and are owned directly or indirectly by the Company, free and
clear of all liens, encumbrances, equities or claims, other than those imposed
by applicable OTS regulations and the Home Owners' Loan Act, as amended
("HOLA").
(h) Each of the Company and the MHC is a duly registered savings and
loan holding company under HOLA and qualifies as a savings and loan holding
company of the type described in Section 10(c)(3) of HOLA. The Bank is a
qualified thrift lender pursuant to Section 10(m) of HOLA. The Bank is a member
in good standing of the Federal Home Loan Bank of New York. The activities of
the Bank are permitted by the applicable rules, regulations and practices of the
OTS. The accounts of depositors in the Bank are insured by the Bank Insurance
Fund to the fullest extent
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permitted by law and the rules and regulations of the Federal Deposit Insurance
Corporation (the "FDIC"), and no proceedings for the termination of such
insurance are pending or, to the best knowledge of the Xxxxxx City Parties,
threatened. Upon consummation of the Conversion, the Bank will establish a
liquidation account for the benefit of eligible account holders and supplemental
eligible account holders of the Bank in an amount equal to the total
stockholders' equity of the Company, as reflected in the most recent financial
statements contained in the Prospectuses and in accordance with the Plan and the
Conversion Regulations.
(i) The shares of the Stock to be issued and sold by the Company have
been duly and validly authorized and, when issued and delivered against payment
therefor as provided herein or in the Plan, will be duly and validly issued,
fully paid and non-assessable; and the Stock will conform to the description
thereof contained in the Prospectuses. Upon issuance of the shares of the Stock
to be issued and sold in the Offering, good title to such shares will be
transferred to the purchasers of such shares against payment therefor in the
Offering as set forth in the Plan and the Prospectuses.
(j) Each of the Xxxxxx City Parties has all requisite corporate power
and authority to execute, deliver and perform its obligations under this
Agreement. Each of the Plan and this Agreement has been duly and validly
authorized, executed and delivered by each of the Xxxxxx City Parties party
thereto. The execution and delivery by each of the Xxxxxx City Parties of this
Agreement and, subject to obtaining the votes of the depositors of the Bank and
the stockholders of the Company specified in the Prospectuses under the heading
"The Conversion and Stock Offering--Approvals Required" (the "REQUIRED VOTES"),
the performance by each of the Xxxxxx City Parties of this Agreement and the
consummation of the Conversion and the transactions contemplated hereby have
been duly authorized by all necessary corporate action on the part of each of
the Xxxxxx City Parties, and, subject to obtaining the Required Votes, no other
corporate actions by any of the Xxxxxx City Parties are necessary for the
performance by each of the Xxxxxx City Parties of this Agreement and the
consummation by the Xxxxxx City Parties of the Conversion and transactions
contemplated hereby.
(k) At the Closing Time referred to in Section 2, (i) the Xxxxxx City
Parties will have completed the conditions precedent to the Conversion and the
Offering in accordance with the Plan, the Conversion Regulations and all other
applicable laws, regulations, decisions and orders, including all material
terms, conditions, requirements and provisions precedent to the Conversion
imposed upon the Xxxxxx City Parties by the OTS or the NJ DOBI or any other
regulatory authority or "blue sky" authority, other than those which the
applicable regulatory authority has agreed in writing may be completed after the
Conversion and (ii) the Conversion and the Offering will have been effected in
the manner described in the Prospectuses and in accordance with the Plan, the
Conversion Regulations and all other applicable material laws, regulations,
decisions and orders, including in compliance with all terms, conditions,
requirements and provisions precedent to the Conversion and Offering imposed
upon any Xxxxxx City Party by the OTS or the NJ DOBI or any other regulatory or
"blue sky" authority.
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(l) The execution, delivery and performance by each of the Xxxxxx City
Parties of this Agreement and the consummation by the Xxxxxx City Parties of the
Conversion and the transactions contemplated hereby and thereby will not (i)
conflict with or result in a breach or violation of any of the terms or
provisions of, impose any lien, charge or encumbrance upon any property or
assets of any of the Xxxxxx City Parties or any of their subsidiaries or
constitute a default under, any indenture, mortgage, deed of trust, loan
agreement, license, lease, pledge, joint venture, stockholders' agreement or
other agreement or instrument to which any of the Xxxxxx City Parties or any of
their subsidiaries is a party or by which any of the Xxxxxx City Parties or any
of their subsidiaries is bound or to which any of the property or assets of any
of the Xxxxxx City Parties or any of their subsidiaries is subject, (ii) result
in any violation of the provisions of the charter or by-laws (or similar
organizational documents) of any of the Xxxxxx City Parties or any of their
subsidiaries, or (iii) result in any violation of any statute or any order, rule
or regulation of any court or governmental agency or body having jurisdiction
over any of the Xxxxxx City Parties or any of their subsidiaries or any of their
properties or assets; and except for such consents, approvals, authorizations,
registrations or qualifications as have already been obtained or as may be
required under applicable state securities laws, no consent, approval,
authorization or order of, or filing or registration with, any such court or
governmental agency or body is required for the execution, delivery and
performance of this Agreement by any of the Xxxxxx City Parties and the
consummation of the Conversion and the transactions contemplated hereby.
(m) There are no contracts, agreements or understandings between the
Company and any person granting such person the right to require the Company to
file a registration statement under the Securities Act with respect to any
securities of the Company owned or to be owned by such person or to require the
Company to include such securities in the securities registered pursuant to the
Registration Statement or in any securities being registered pursuant to any
other registration statement filed by the Company under the Securities Act.
(n) The Company has not sold or issued any shares of Common Stock
during the eighteen-month period preceding the date of the Prospectuses,
including any sales pursuant to Rule 144A under, or Regulations D or S of, the
Securities Act other than shares issued pursuant to employee benefit plans,
qualified stock options plans or other employee compensation plans or pursuant
to other outstanding options, rights or warrants, in each case described in the
Prospectuses.
(o) None of the Xxxxxx City Parties or any of their subsidiaries has
sustained, since the date of the latest audited financial statements included or
incorporated by reference in the Prospectuses, 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
Prospectuses; and, since such date, there has not been any change in the capital
stock or long-term debt of any of the Xxxxxx City Parties or any of their
subsidiaries or any material adverse change, or any development involving a
prospective material adverse change, in or affecting the general
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affairs, management, consolidated financial position, stockholders' equity,
results of operations, business or prospects of any of the Xxxxxx City Parties
or any of their subsidiaries, otherwise than as set forth or contemplated in the
Prospectuses. The liabilities, assets, properties and business of the Xxxxxx
City Parties conform in all material respects to the descriptions thereof
contained in the Prospectuses and none of the Xxxxxx City Parties has any
material liabilities of any kind, contingent or otherwise, except as disclosed
in the Prospectuses.
(p) The historical financial statements (including the related notes
and supporting schedules) filed as part of the Registration Statement or
included or incorporated by reference in the Registration Statement and the
Prospectuses comply as to form in all material respects with the requirements of
Regulation S-X under the Securities Act and the Conversion Regulations and
present fairly the financial condition, results of operations and cash flows of
the entities purported to be shown thereby, at the dates and for the periods
indicated, and have been prepared in conformity with accounting principles
generally accepted in the United States applied on a consistent basis throughout
the periods involved, except as otherwise disclosed therein. The other financial
data, selected pro forma ratios and other pro forma financial information,
operating data and statistical information included or incorporated by reference
in the Registration Statement and the Prospectuses are presented fairly in all
material respects and have been prepared on a basis consistent in all material
respects (except for, with respect to the pro forma information, the pro forma
adjustments described in the Prospectuses) with such financial statements and
the books and records of the Company and its subsidiaries. The statistical
information required by Commission Industry Guide 3 filed as part of the
Registration Statement or included or incorporated by reference in the
Prospectuses present fairly in all material respects the information set forth
therein, is in compliance in all material respects with the Securities Act and
the Rules and Regulations and such Guide 3, and is consistent in all material
respects with the Company's consolidated financial statements included or
incorporated by reference in the Registration Statement and the Prospectuses.
(q) RP Financial, LC ("RP FINANCIAL"), who has prepared the
Independent Appraisal dated as of _______, 2005 described in the Prospectuses
(the "INDEPENDENT APPRAISAL"), is independent with respect to the Xxxxxx City
Parties within the meaning of the Plan and the Conversion Regulations and is
believed by the Xxxxxx City Parties to be experienced and expert in the
valuation and the appraisal of business entities, including savings
institutions, and the Xxxxxx City Parties believe that RP Financial has prepared
the pricing information set forth in the Prospectuses in accordance with the
requirements of the Conversion Regulations.
(r) KPMG LLP, who have certified certain financial statements of the
Company, whose report appears in the Prospectuses and the Conversion
Applications and who have delivered the initial letter referred to in Section
7(g) hereof, are independent public accountants as required by the Securities
Act and the Rules and Regulations.
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(s) The Xxxxxx City Parties have received opinions of (i) their
special counsel, Xxxxxxx Xxxxxxxx & Xxxx LLP, with respect to the federal income
tax consequences of the Conversion and the Offering and (ii) KPMG LLP, with
respect to the New Jersey state income tax consequences of the Conversion and
the Offering, each as described in the Prospectuses, and the facts and
representations of any of the Xxxxxx City Parties or any officer or employee
thereof upon which such opinions were based, were truthful, accurate and
complete, and none of the Xxxxxx City Parties has taken or will take any action
inconsistent therewith.
(t) The Xxxxxx City Parties and their subsidiaries have good and
marketable title in fee simple to all real property and good and marketable
title to all personal property owned by them, in each case free and clear of all
liens, encumbrances and defects, except such as are described in the
Prospectuses or such as do not materially affect the value of such property and
do not materially interfere with the use made and proposed to be made of such
property by the Xxxxxx City Parties and their subsidiaries; and all assets held
under lease by the Xxxxxx City Parties and their subsidiaries are held by them
under valid, subsisting and enforceable leases, with such exceptions as are not
material and do not interfere with the use made and proposed to be made of such
assets by the Xxxxxx City Parties and their subsidiaries.
(u) The Xxxxxx City Parties and their subsidiaries carry, or are
covered by, insurance from insurers of recognized financial responsibility in
such amounts and covering such risks as is adequate for the conduct of their
respective businesses and the value of their respective properties and as is
customary for companies engaged in similar businesses in similar industries; all
policies of insurance of the Xxxxxx City Parties and their subsidiaries or their
respective businesses, assets, employees, officers and directors are in full
force and effect in all material respects; and none of the Xxxxxx City Parties
has received any notice of cancellation or non-renewal of any such policy.
(v) The Xxxxxx City Parties and their subsidiaries have such permits,
licenses, patents, franchises, certificates of need and other approvals or
authorizations of governmental or regulatory authorities ("PERMITS") as are
necessary under applicable law to own their properties and conduct their
businesses in the manner described in the Prospectuses except as disclosed in or
specifically contemplated by the Prospectuses; each of the Xxxxxx City Parties
and their subsidiaries has fulfilled and performed all of its material
obligations with respect to the Permits, and no event has occurred which allows,
or after notice or lapse of time would allow, revocation or termination thereof
or results in any other material impairment of the rights of the holder of any
such Permits.
(w) The Xxxxxx City Parties and their subsidiaries own or possess
adequate rights to use all material patents, patent applications, trademarks,
service marks, trade names, trademark registrations, service xxxx registrations,
copyrights and licenses necessary for the conduct of their respective businesses
and have no reason to believe that the conduct of their respective businesses
has conflicted or will conflict with, and have not received any notice of any
claim of conflict with, any such rights of others.
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(x) There are no legal or governmental proceedings pending to which
any of the Xxxxxx City Parties or any of their subsidiaries is a party or of
which any property or assets of any of the Xxxxxx City Parties or any of their
subsidiaries is the subject which, if determined adversely to any of the Xxxxxx
City Parties or any of their subsidiaries, might have a material adverse effect
on the general affairs, management, consolidated financial position,
stockholders' equity, results of operations, capital, business or prospects of
the Company and its subsidiaries taken as a whole (a "MATERIAL ADVERSE EFFECT");
and to the best knowledge of the Xxxxxx City Parties, no such proceedings are
threatened or contemplated by governmental authorities or threatened by others.
(y) The conditions for use of Form S-3, as set forth in the General
Instructions thereto, have been satisfied.
(z) None of the Xxxxxx City Parties or any of their subsidiaries is a
party to any written agreement or memorandum of understanding with, or a party
to any commitment letter or similar undertaking to, or is subject to any order
or directive by, or is a recipient of any extraordinary supervisory letter from,
or has adopted any board resolutions at the request of, the FDIC, the OTS, the
NJ DOBI or any other government authority or agency responsible for the
supervision, regulation or insurance of savings and loan holding companies or
savings banks (collectively, the "REGULATORY AUTHORITIES") which restricts
materially the conduct of its business, or in any manner relates to its capital
adequacy, its credit policies or its management, nor have any of them been
advised by any Regulatory Authority that it is contemplating issuing or
requesting (or is considering the appropriateness of issuing or requesting) any
such order, decree, agreement, memorandum of understanding, extraordinary
supervisory letter, commitment letter or similar submission, or any such board
resolutions.
(aa) There are no contracts or other documents which are required to
be described in any Prospectus or Proxy Statement or filed as exhibits to the
Registration Statement by the Securities Act or by the Rules and Regulations or
by the Conversion Regulations that have not been described in the Prospectuses
and Proxy Statements or filed or incorporated therein by reference as permitted
by the Rules and Regulations and, if applicable, the Conversion Regulations as
exhibits to the Registration Statement.
(bb) No relationship, direct or indirect, exists between or among any
of the Xxxxxx City Parties or any of their subsidiaries, on the one hand, and
the directors, officers, stockholders, customers or suppliers of any of the
Xxxxxx City Parties or any of their subsidiaries, on the other hand, which is
required to be described in any Prospectus or Proxy Statement which is not so
described.
(cc) No labor disturbance by the employees of the Company or its
subsidiaries exists or, to the best knowledge of the Xxxxxx City Parties, is
imminent.
(dd) Each of the Xxxxxx City Parties and each of their subsidiaries is
in compliance in all material respects with all presently applicable provisions
of the
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Employee Retirement Income Security Act of 1974, as amended, including the
regulations and published interpretations thereunder ("ERISA"); no "REPORTABLE
EVENT" (as defined in ERISA) has occurred with respect to any "PENSION PLAN" (as
defined in ERISA) for which any of the Xxxxxx City Parties or its subsidiaries
would have any liability; none of the Xxxxxx City Parties or any of their
subsidiaries has incurred or expects to incur liability under (i) Title IV of
ERISA with respect to termination of, or withdrawal from, any "pension plan" or
(ii) Sections 412 or 4971 of the Internal Revenue Code of 1986, as amended,
including the regulations and published interpretations thereunder (the "CODE");
and each "PENSION PLAN" for which any of the Xxxxxx City Parties or any of their
subsidiaries would have any liability that is intended to be qualified under
Section 401(a) of the Code is so qualified in all material respects and nothing
has occurred, whether by action or by failure to act, which would cause the loss
of such qualification.
(ee) Each of the Xxxxxx City Parties and each of their subsidiaries
has filed all federal, state and local income and franchise tax returns required
to be filed through the date hereof, subject to permitted extensions, and have
paid all taxes due thereon, and no tax deficiency has been determined adversely
to any of the Xxxxxx City Parties or any of their subsidiaries which has had
(nor do any of the Xxxxxx City Parties have any knowledge of any tax deficiency
which, if determined adversely to any of the Xxxxxx City Parties or any of their
subsidiaries, might have) a Material Adverse Effect.
(ff) Since the date as of which information is given in the
Prospectuses (exclusive of any amendment or supplement thereto after the date
hereof), and except as may otherwise be disclosed in the Prospectuses, none of
the Xxxxxx City Parties has (i) issued or granted any securities, other than
shares issued pursuant to employee benefit plans, qualified stock option plans
or other employee compensation plans described in the Prospectuses or pursuant
to outstanding options, rights or warrants, (ii) incurred any liability or
obligation, direct or contingent, other than liabilities and obligations which
were incurred in the ordinary course of business, (iii) entered into any
transaction not in the ordinary course of business or (iv) declared or paid any
dividend on its capital stock.
(gg) Each of the Xxxxxx City Parties and each of their subsidiaries
(i) make and keep accurate books and records and (ii) maintain a system of
internal accounting controls sufficient to provide reasonable assurance that (A)
transactions are executed in accordance with management's authorization, (B)
transactions are recorded as necessary to permit preparation of the Company's
financial statements in conformity with accounting principles generally accepted
in the United States and to maintain accountability for their assets, (C) access
to their assets is permitted only in accordance with management's authorization
and (D) the reported accountability for their assets is compared with existing
assets at reasonable intervals and appropriate action is taken with respect to
any differences.
(hh) None of the Xxxxxx City Parties or any of their subsidiaries (i)
is in violation of its charter or by-laws (or similar organizational documents),
(ii) is in default, and no event has occurred which, with notice or lapse of
time or both, would
11
constitute such a default, in the due performance or observance of any term,
covenant or condition contained in any material indenture, mortgage, deed of
trust, loan agreement, lease, pledge or other agreement or instrument to which
it is a party or by which it is bound or to which any of its properties or
assets is subject or (iii) is in violation in any material respect of any law,
ordinance, governmental rule, regulation or court decree to which it or its
property or assets may be subject or has failed to obtain any license, permit,
certificate, franchise or other governmental authorization or permit necessary
to the ownership of its property or to the conduct of its business.
(ii) None of the Xxxxxx City Parties, any of their subsidiaries, or
any director, officer, agent, employee or other person associated with or acting
on behalf of any of the Xxxxxx City Parties or any of their subsidiaries has
used any corporate funds for any unlawful contribution, gift, entertainment or
other unlawful expense relating to political activity; made any direct or
indirect unlawful payment to any foreign or domestic government official or
employee from corporate funds; violated or is in violation of any provision of
the Foreign Corrupt Practices Act of 1977; or made any bribe, rebate, payoff,
influence payment, kickback or other unlawful payment.
(jj) Each of the Xxxxxx City Parties is in compliance in all material
respects with the applicable financial recordkeeping and reporting requirements
of the Currency and Foreign Transaction Reporting Act of 1970, as amended, and
the rules and regulations thereunder. The Bank has established compliance
programs to ensure compliance with the requirements of the USA PATRIOT Act and
all applicable regulations promulgated thereunder. Each of the Xxxxxx City
Parties is in compliance in all material respects with the USA PATRIOT Act and
all applicable regulations promulgated thereunder, and there is no charge,
investigation, action, suit or proceeding before any court, regulatory authority
or governmental agency or body pending or, to the best knowledge of the Xxxxxx
City Parties, threatened regarding the compliance by any of the Xxxxxx City
Parties with the USA PATRIOT Act or any regulations promulgated thereunder.
(kk) Each of the Xxxxxx City Parties and each of their subsidiaries
are, and at all times prior were, (i) in compliance with any and all applicable
federal, state, local and foreign laws, regulations, ordinances, rules, orders,
judgments, decrees, permits or other legal requirements relating to the
protection of human health and safety, the environment, natural resources or
hazardous or toxic substances or wastes, pollutants or contaminants
("ENVIRONMENTAL LAWS"), which compliance includes obtaining, maintaining and
complying with all permits and authorizations and approvals required by
Environmental Laws to conduct their respective businesses and (ii) have not
received notice of any actual or potential liability for the investigation or
remediation of any disposal or release of hazardous or toxic substances or
wastes, pollutants or contaminants, except for any such non-compliance or
liability would not reasonably be expected to have, individually or in the
aggregate, a Material Adverse Effect; and none of the Xxxxxx City Parties or any
of their subsidiaries has been named as a "potentially responsible party" under
the Comprehensive Environmental Response, Compensation and Liability Act of
1980, as amended, or any other similar Environmental Law. None of the Xxxxxx
12
City Parties or any of their subsidiaries is a party to any proceeding under
Environmental Laws in which a governmental authority is also a party, other than
such proceedings regarding which it is believed no monetary penalties of
$100,000 or more will be imposed, and none of the Xxxxxx City Parties or any of
their subsidiaries anticipates material capital expenditures relating to
Environmental Laws.
(ll) None of the Xxxxxx City Parties or any of their subsidiaries is,
or, following the issuance and sale of the Stock and the application of the net
proceeds therefrom as described in the Prospectuses, will be, an "INVESTMENT
COMPANY" within the meaning of such term under the Investment Company Act of
1940, as amended, and the rules and regulations of the Commission thereunder.
(mm) The industry statistical and market-related data included or
incorporated by reference in each of the Registration Statement and the
Prospectuses are based on or derived from sources that the Company believes to
be accurate, reasonable and reliable, and such data agree with the sources from
which they were derived.
(nn) (i) Each of the Xxxxxx City Parties and each of their
subsidiaries has established and maintains disclosure controls and procedures
(as such term is defined in Rule 13a-14 under the Exchange Act); (ii) such
disclosure controls and procedures are designed to ensure that information
required to be disclosed by the Xxxxxx City Parties and their subsidiaries in
the reports they file or submit under the Exchange Act is accumulated and
communicated to the management of the Xxxxxx City Parties and their
subsidiaries, including their respective principal executive officers and
principal financial officers, as appropriate, to allow timely decisions
regarding required disclosure; and (iii) such disclosure controls and procedures
are effective in all material respects to perform the functions for which they
were established.
(oo) Since the date of the most recent balance sheet of the Company
and its consolidated subsidiaries reviewed or audited by KPMG LLP and the audit
committee of the board of directors of the Company (or persons fulfilling the
equivalent function), none of the Xxxxxx City Parties has been advised of (i)
any significant deficiencies in the design or operation of internal controls
which could adversely affect the ability of the Xxxxxx City Parties and their
subsidiaries to record, process, summarize and report financial data, or any
material weaknesses in internal controls; and (ii) any fraud, whether or not
material, that involves management or other employees who have a significant
role in the internal controls of the Xxxxxx City Parties and their subsidiaries.
(pp) Since the date of the most recent balance sheet of the Company
and its consolidated subsidiaries reviewed by or audited by KPMG LLP, there have
been no significant changes in internal controls or in other factors that could
significantly affect internal controls, including any corrective actions with
regard to significant deficiencies and weaknesses.
(qq) None of the Xxxxxx City Parties has distributed or, prior to the
later to occur of the Closing Date and completion of the distribution of the
Stock, will
13
distribute any offering material in connection with the offering and sale of the
Stock other than the Prospectuses and, in the case of persons entitled to
participate in the Subscription Offering, the Marketing Materials filed as
exhibits to the Conversion Applications.
(rr) None of the Xxxxxx City Parties has taken or will take, directly
or indirectly, any action designed to or which has constituted or which might
reasonably be expected to cause or result in the stabilization or manipulation
of the price of any security of the Company to facilitate the sale or resale of
the shares of the Stock.
(ss) The Stock has been approved for inclusion, subject to notice of
issuance, on the NASDAQ National Market ("NASDAQ").
(tt) None of the Xxxxxx City Parties has made any payment of funds of
any of the Xxxxxx City Parties as a loan to any person for the purchase of the
Stock, except for the loan by the Company to the employee stock ownership plan
of the Company in an amount equal to the aggregate purchase price (assuming a
$10.00 per share purchase price) for shares representing 4% of the shares to be
sold in the Offering, as described in the Prospectuses.
(uu) The records maintained by the Xxxxxx City Parties of the persons
entitled to participate in the Subscription Offering are accurate and complete
in all material respects.
(vv) All of the loans represented as assets on the most recent
financial statements or selected financial information of the Company included
in the Prospectuses meet or are exempt from all requirements of federal, state
and local law pertaining to lending, including, without limitation, truth in
lending (including the requirements of Regulation Z and 12 C.F.R. Part 226),
real estate settlement procedures, consumer credit protection, equal credit
opportunity and all disclosure laws applicable to such loans, except for
violations which, if asserted, would not reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect.
(ww) To the best knowledge of the Xxxxxx City Parties, there are no
affiliations or associations (as such terms are defined by the National
Association of Securities Dealers, Inc. ("NASD")) between any member of the NASD
and any of the officers or directors of any of the Xxxxxx City Parties.
(xx) The Xxxxxx City Parties have not relied on any of the Agents or
their counsel for any legal, tax or accounting advice in connection with the
Conversion or the Offering.
SECTION 3. Appointment of Agents; Fees. On the basis of the representations
and warranties contained in, and subject to the terms and conditions of, this
Agreement:
14
(a) The Xxxxxx City Parties hereby appoint (i) Xxxx Xxxx to consult
with, advise and assist the Xxxxxx City Parties with the solicitation of
subscriptions for the Stock in connection with the sale of the Stock in the
Subscription Offering and (ii) the Agents as exclusive agents for the purpose of
soliciting or receiving purchase orders for the Stock in connection with the
sale of the Stock in the Syndicated Offering. Xxxxxx Brothers shall act as
global coordinator and sole bookrunner, and Xxxx Xxxx shall act as joint lead
manager, for the Syndicated Offering. On the basis of the representations of the
Xxxxxx City Parties contained herein, but subject to the terms and conditions
set forth herein, each of the Agents hereby accepts such appointment and agrees
to use its reasonable best efforts to (i) in the case of Xxxx Xxxx only, (x)
assist the Xxxxxx City Parties with the solicitation of subscriptions for the
Stock in the Subscription Offering and (y) consult with and advise the Xxxxxx
City Parties as to the matters set forth in Section 2, "Services to be Provided
by Xxxx Xxxx" of the engagement letter, dated January 3, 2005, by and among the
Company, the MHC and Xxxx Xxxx (the "XXXX XXXX ENGAGEMENT LETTER") and (ii)
solicit offers to purchase the Stock in the Syndicated Offering. The Xxxxxx City
Parties shall not, without the consent of the Representatives, solicit offers to
purchase Stock in the Offering otherwise than through the Agents and shall not
consummate any sale of Stock in the Offering not arranged by the Agents.
(b) In offering the Stock for sale, the Agents shall offer it solely
as agents for the Company and such offer shall be made upon the terms and
subject to the conditions set forth in the Prospectuses. The Agents shall not
commence the Syndicated Offering without the prior approval of the Company.
(c) The Xxxxxx City Parties acknowledge that none of the Agents shall
be required to (i) purchase any shares of the Stock, (ii) obtain subscriptions
or purchase orders for any specific number of shares of the Stock or (iii) take
any action which is inconsistent with any applicable law, regulation, decision
or order.
(d) As compensation for the Agents' services as agents hereunder, the
Company shall pay the following compensation:
(i) to Xxxx Xxxx (and in addition to the reorganization and proxy
vote advisory and administrative services fee paid to Xxxx Xxxx on or prior to
the date of this Agreement), a sales fee equal to the lesser of (x) $0.10 for
each share of the Stock sold in the Subscription Offering, excluding shares sold
to Related Parties (as defined below) and (y) $15,000,000;
(ii) to the Representatives, a management fee equal to $0.10 for
each share of the Stock sold in the Syndicated Offering (the "MANAGEMENT FEE);
and
to the Agents, a sales concession equal to $0.30 for each
share of the Stock sold in the Subscription Offering (the "SALES
CONCESSION").
15
For purposes of this Agreement, the term "RELATED PARTIES" means any of the
officers, directors or employees of the Company, any member of the immediate
family of any such officer, director or employee, and any qualified and
non-qualified employee benefit plans of the Company and (ii) "IMMEDIATE FAMILY"
includes a person's spouse, siblings and parents and any children of such person
who reside within the same household as such person.
(e) Upon the reasonable request of the Company, the Agents shall
report from time to time on their efforts to solicit offerees to purchase the
Stock and all indications of interest received by the Agents with respect to
possible purchases of shares of Stock.
(f) Except as set forth in Section 15 hereof, the appointment of the
Agents to provide services hereunder shall terminate upon the Closing (as
defined below).
(g) In the event the Company determines to sell any shares of the
Stock in a firm commitment public offering, the Company will retain (pursuant to
the terms of a definitive underwriting agreement) Xxxxxx Brothers as global
coordinator and sole bookrunner, and Xxxx Xxxx as joint lead manager, for such
offering.
SECTION 4. Closing. If the minimum number of shares of the Stock to be sold
in the Offerings, as set forth on the cover page of the Prospectuses, are
subscribed for at or before the termination date of the Offerings (which may be
extended in the manner described in the Prospectuses), and the Required Votes
are received, the Company agrees to issue and deliver the Stock on the Closing
Date (as hereinafter defined) against payment therefor (in the case of the
Subscription Offering, by the means authorized by the Plan). Time shall be of
the essence, and delivery at the time and place specified pursuant to this
Agreement is a further condition of the obligation of each Agent hereunder. The
Company shall issue the Stock to be sold pursuant to the Subscription Offering
directly to the purchasers thereof, and shall issue the Stock to be sold
pursuant to the Syndicated Offering to Xxxxxx Brothers (or one or more other
Agents, as directed by Xxxxxx Brothers) for the benefit of the purchasers
thereof. Upon delivery, the Stock to be sold pursuant to the Syndicated Offering
shall be registered in such names and in such denominations as the
Representatives shall request in writing not less than two full business days
prior to the Closing Date. For the purpose of expediting the checking and
packaging of the certificates for the Stock to be sold pursuant to the
Syndicated Offering, the Company shall make the certificates representing the
Stock available for inspection by the Representatives in New York, New York, not
later than 2:00 P.M., New York City time, on the business day prior to the
Closing Date. The Company shall not deliver the Stock until all of the
conditions in Section 7 have been satisfied or waived by the Representatives.
The closing of the issuance and sale of the Stock (the "CLOSING") shall be held
at the offices of Xxxxxxx Xxxxxxxx & Wood LLP, in New York, New York, at 10:00
a.m., New York City time, or at such other place and time as shall be agreed
upon among the Xxxxxx City Parties and the Representatives, on the business day
selected by the Company and the Representatives, which business day
16
shall be no less than two business days following the giving of prior notice by
the Company to the Agents or at such other time as shall be agreed upon by the
Xxxxxx City Parties and the Agents. This date and time are sometimes referred to
as the "CLOSING DATE." At the Closing, (i) the Xxxxxx City Parties shall deliver
by wire transfer in same-day funds (x) to Xxxx Xxxx, the fees owing to Xxxx Xxxx
as set forth in paragraph (d)(i) of Section 3 and (y) to each of the Agents, the
expenses owing to such Agent pursuant to Section 6, and the opinions required
hereby and other documents deemed reasonably necessary for the Agents shall be
executed and delivered to effect the sale of the Stock as contemplated hereby
and pursuant to the terms of the Plan and the description thereof in the
Prospectuses and (ii) the Representatives shall deliver to the Company by wire
transfer in same-day funds the aggregate proceeds of the Stock sold by the
Agents in the Syndicated Offering, net of the commissions and fees owing to the
Agents under paragraphs (d)(ii) and d(iii) of Section 3.
SECTION 5. Further Agreements of the Xxxxxx City Parties. Each of the
Xxxxxx City Parties agrees:
(a) To make no further amendment or any supplement to the Registration
Statement, or any Prospectus, Proxy Statement or Conversion Application except
as permitted herein; to advise the Representatives, promptly after it receives
notice thereof, of the time when any amendment to the Registration Statement has
been filed or becomes effective or any supplement to any Prospectus, any amended
Prospectus, or any supplement or amendment to any Proxy Statement or Conversion
Application has been filed, and to furnish the Representatives with copies
thereof; to advise the Representatives, promptly after it receives notice
thereof, of the issuance by the Commission or the OTS of any stop order or of
any order preventing or suspending the use of any Prospectus, Proxy Statement or
Marketing Materials, of the suspension of the Offering or of the qualification
of the Stock for offering or sale in any jurisdiction, of the initiation or
threatening of any proceeding for any such purpose, or of any request by the
Commission or the OTS for the amending or supplementing of the Registration
Statement or any Prospectus, Proxy Statement or Conversion Application or for
additional information; and, in the event of the issuance of any stop order or
of any order preventing or suspending the use of any Prospectus, Proxy Statement
or Marketing Materials or suspending the Offering or any such qualification, to
use promptly its best efforts to obtain its withdrawal;
(b) To furnish promptly to each of the Representatives, and to counsel
for the Agents, a signed copy of the Registration Statement as originally filed
with the Commission, the Conversion Applications as originally filed with the
OTS and the NJ DOBI, and each amendment thereto filed with the Commission, the
OTS or the NJ DOBI, as applicable, including all consents and exhibits filed
therewith;
(c) To deliver promptly to the Representatives such number of the
following documents as the Representatives shall reasonably request: (i)
conformed copies of the Registration Statement and the Company Proxy Statement
as originally filed with the Commission, the Bank Proxy Statement and the
Conversion Applications as
17
originally filed with the OTS or the NJ DOBI, as applicable, and each amendment
thereto (in each case including exhibits); (ii) the Prospectuses and any amended
or supplemented Prospectus; and (iii) any document incorporated by reference in
the Registration Statement or any Prospectus or Proxy Statement (excluding
exhibits thereto); and, if the delivery of a prospectus is required at any time
after the Effective Time in connection with the offering or sale of the Stock
and if at such time any events shall have occurred as a result of which any
Prospectus as then amended or supplemented would include an untrue statement of
a material fact or omit to state any material fact necessary in order to make
the statements therein, in the light of the circumstances under which they were
made when such Prospectus is delivered, not misleading, or, if for any other
reason it shall be necessary to amend or supplement any Prospectus or file under
the Exchange Act any document incorporated by reference in the Registration
Statement or any Prospectus in order to comply with the Securities Act or the
Exchange Act, to notify the Representatives and, upon their request and subject
to Section 5(e), to file such document and to prepare and furnish without charge
to each Agent and to any dealer in securities as many copies as the
Representatives may from time to time reasonably request of an amended or
supplemented Prospectus which will correct such statement or omission or effect
such compliance;
(d) To file promptly with the Commission, the OTS and/or the NJ DOBI
any amendment to the Registration Statement, any Prospectus or Proxy Statement
or any supplement to any Prospectus that may, in the judgment of the Company or
the Representatives, be required by the Securities Act or requested by the
Commission, OTS or NJ DOBI;
(e) Prior to filing with the Commission, the OTS or the NJ DOBI, as
applicable, any amendment to the Registration Statement, any amendment or
supplement to any Prospectus, any Prospectus pursuant to Rule 424 of the Rules
and Regulations, any document incorporated by reference in the Registration
Statement, any Prospectus or Proxy Statement or any amendment or supplement to
any Conversion Application or Proxy Statement, to furnish a copy thereof to the
Representatives and counsel for the Representatives as far in advance of such
filing as is practicable and obtain the consent of the Representatives to the
filing;
(f) As soon as practicable after the Effective Date, to make generally
available to the Company's security holders and to deliver to the
Representatives an earnings statement of the Company and its subsidiaries (which
need not be audited) complying with Section 11(a) of the Securities Act and the
Rules and Regulations (including, at the option of the Company, Rule 158);
(g) For a period of five years following the Effective Date, to
furnish to the Representatives (i) copies of all materials furnished by the
Company to its stockholders and all public reports and all reports and financial
statements furnished by the Company to the principal national securities
exchange upon which the Common Stock may be listed pursuant to requirements of
or agreements with such exchange or to the Commission pursuant to the Exchange
Act or any rule or regulation of the
18
Commission thereunder, (ii) copies of the publicly available reports filed by
the Bank with the Regulatory Authorities and (iii) such other information as the
Representatives may reasonably request regarding any of the Xxxxxx City Parties;
(h) Promptly from time to time to take such action as the
Representatives may reasonably request to qualify the Stock for offering and
sale under the securities laws of such jurisdictions as the Representatives may
request and to comply with such laws so as to permit the continuance of sales
and dealings therein in such jurisdictions for as long as may be necessary to
complete the distribution of the Stock;
(i) For a period from the date of the Prospectuses until the date
which is 90 days after the Closing Date, subject to extension as provided below
(the "LOCK-UP PERIOD"), not to, directly or indirectly, (1) offer for sale,
sell, pledge or otherwise dispose of (or enter into any transaction or device
which is designed to, or could be expected to, result in the disposition by any
person at any time in the future of) any shares of Common Stock or securities
convertible into or exchangeable for Common Stock (other than the Stock and
shares issued pursuant to employee benefit plans, qualified stock option plans
or other employee compensation plans existing on the date hereof or pursuant to
currently outstanding options, warrants or rights), or sell or grant options,
rights or warrants with respect to any shares of Common Stock or securities
convertible into or exchangeable for Common Stock (other than the grant of
options pursuant to option plans existing on the date hereof), (2) enter into
any swap or other derivatives transaction that transfers to another, in whole or
in part, any of the economic benefits or risks of ownership of such shares of
Common Stock, or (3) announce any intention to take any of the foregoing
actions, whether any such transaction described in clause (1) or (2) above is to
be settled by delivery of Common Stock or other securities, in cash or
otherwise, in each case without the prior written consent of Xxxxxx Brothers;
and to cause each officer and director of the Company to furnish to the
Representatives, concurrent with the execution of this Agreement, a lock-up
letter or letters, in form and substance satisfactory to counsel for the Agents,
pursuant to which each such person shall agree not to, directly or indirectly,
(1) offer for sale, sell, pledge or otherwise dispose of (or enter into any
transaction or device which is designed to, or could be expected to, result in
the disposition by any person at any time in the future of) any shares of Common
Stock or securities convertible into or exchangeable for Common Stock or (2)
enter into any swap or other derivatives transaction that transfers to another,
in whole or in part, any of the economic benefits or risks of ownership of such
shares of Common Stock, or (3) announce any intention to take any of the
foregoing actions, whether any such transaction described in clause (1) or (2)
above is to be settled by delivery of Common Stock or other securities, in cash
or otherwise, in each case during the Lock-Up Period, without the prior written
consent of Xxxxxx Brothers; provided, however,that, notwithstanding the
foregoing, if (1) during the last 17 days of the Lock-Up Period the Company
issues an earnings release or material news or a material event relating to the
Company occurs or (2) prior to the expiration of the Lock-Up Period, the Company
announces that it will release earnings results during the 17-day period
beginning on the last day of the Lock-Up Period, then the Lock-Up Period shall
continue to apply until the expiration of the 18-
19
day period beginning on the issuance of the earnings release or the occurrence
of the material news or material event;
(j) To take such steps as shall be necessary to ensure that neither
the Company nor any of its subsidiaries shall become an "INVESTMENT COMPANY"
within the meaning of such term under the Investment Company Act of 1940, as
amended, and the rules and regulations of the Commission thereunder;
(k) To maintain appropriate arrangements for depositing all funds
received from persons delivering orders to purchase Stock in the Subscription
Offering on an interest-bearing basis at the rate described in the Subscription
Offering Prospectus until the Closing Date or until the Subscription Offering is
terminated in accordance with the Plan and as described in the Subscription
Offering Prospectus; to 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 Xxxxxx City Parties to make the
appropriate refunds of such funds in the event that such refunds are required to
be made in accordance with the Plan and as described in the Subscription
Offering Prospectus;
(l) Not to amend the Plan (i) without prior notice to the
Representatives and (ii) without the Representatives' prior written consent, in
any manner that, in the opinion of the Representatives, would affect the sale of
the Stock or the terms of this Agreement;
(m) To provide the Representatives with any information necessary to
allow the Representatives to manage the allocation process in order to permit
the Company to carry out, in the manner described in the Prospectuses, the
allocation of the Stock in the event of an oversubscription, and such
information shall be accurate and reliable in all material respects;
(n) To use all reasonable efforts to satisfy, or cause to be
satisfied, the conditions precedent to the several obligations of the Agents
specified in Section 7 hereof, and not to deliver the Stock until each of the
conditions set forth in Section 7 shall have been satisfied or waived by the
Agents;
(o) To conduct their respective businesses in compliance in all
material respects with all applicable federal and state laws, rules,
regulations, decisions, directives and orders, including all decisions,
directives and orders of the Commission, the FDIC and the OTS; and
(p) To comply in all material respects with any and all terms,
conditions, requirements and provisions with respect to the Conversion and the
transactions contemplated thereby imposed by the Conversion Regulations, the
Commission, the OTS, the NJ DOBI, by applicable state law and regulations, and
by the Securities Act, the Rules and Regulations, the Exchange Act, and the
rules and regulations of the Commission promulgated thereunder, to be complied
with prior to the
20
Closing Date; and when any Prospectus is required to be delivered, to comply in
all material respects, at its own expense, with all requirements imposed upon
such Xxxxxx City Party by the OTS, the NJ DOBI, the Conversion Regulations
(except as modified or waived in writing by the OTS or the NJ DOBI, as
applicable), the Commission, by applicable state law and regulations and by the
Securities Act, the Rules and Regulations, the Exchange Act and the rules and
regulations of the Commission promulgated thereunder, in each case as from time
to time in force, so far as is necessary to permit the continuance of sales or
dealing in shares of the Stock during such period in accordance with the
provisions hereof and the Prospectuses.
SECTION 6. Expenses. The Xxxxxx City Parties jointly and severally agree to
pay (a) the costs incident to the authorization, issuance, sale and delivery of
the Stock and any taxes payable in that connection; (b) the costs incident to
the preparation, printing and filing under the Securities Act of the
Registration Statement, the Prospectuses, the Proxy Statements and any
amendments and exhibits thereto; (c) the costs of distributing the Registration
Statement as originally filed and each amendment (including any post-effective
amendments) thereto (including, in each case, exhibits), the Prospectuses, the
Proxy Statements and any amendment or supplement to any Prospectus or Proxy
Statement or any document incorporated by reference therein, all as provided in
this Agreement; (d) expenses relating to temporary personnel and the stock
information center and advertising expenses incurred by any of the Xxxxxx City
Parties, (e) the filing fees incident to securing any required review by the
National Association of Securities Dealers, Inc. of the terms of sale of the
Stock; (f) the filing fees incident to securing the review by the OTS and the NJ
DOBI of the Conversion Applications; (g) any applicable listing, transfer agent
fees and related fees, and the costs of preparation and distribution of stock
certificates; (h) the fees and expenses relating to the Independent Appraisal;
(i) the fees and expenses of qualifying the Stock under the securities laws of
the several jurisdictions as provided in Section 5(h) and of preparing, printing
and distributing a Blue Sky Memorandum (including related fees and expenses of
counsel to the Agents); (j) the costs and expenses of the Company relating to
investor presentations on any "ROAD SHOW" undertaken in connection with the
marketing of the offering of the Stock, including, without limitation, expenses
associated with the production of road show slides and graphics, fees and
expenses of any consultants engaged in connection with the road show
presentations with the prior approval of the Company and travel and lodging
expenses of the representatives and officers of the Company and any such
consultants; and (k) all other costs and expenses incident to the performance of
the obligations of the Company under this Agreement; provided that, except as
provided in this Section 6, the Agents shall pay their own costs and expenses,
including the costs and expenses of their counsel, the expenses of advertising
any offering of the Stock made by the Agents and travel expenses incurred by the
Agents in connection with the Offering (including in connection with the road
show). If there is a resolicitation of subscriptions in the Subscription
Offering for any reason, and the Agents are required to provide significant
additional services or expend significant additional time, the parties agree to
negotiate in good faith an agreement to cover the Agents' additional fees and
expenses in connection therewith, including attorneys' fees and expenses.
21
SECTION 7. Conditions of Agents' Obligations. The respective obligations of
the Agents hereunder and the occurrence of the Closing and the Conversion are
subject to the accuracy, when made and on the Closing Date, of the
representations and warranties of the Xxxxxx City Parties contained herein, to
the performance by each of the Xxxxxx City Parties of their respective
obligations hereunder, and to the satisfaction or the waiver by the
Representatives of each of the following additional terms and conditions:
(a) No stop order suspending the effectiveness of the Registration
Statement or any part thereof or order preventing or suspending the use of any
Prospectus, Proxy Statement or Marketing Materials shall have been issued and no
proceeding for that purpose shall have been initiated or threatened by the
Commission or the OTS; and any request of the Commission, the OTS or the NJ DOBI
for inclusion of additional information in the Registration Statement or any
Prospectus or Proxy Statement or otherwise shall have been complied with.
(b) No Agent shall have discovered and disclosed to the Company on or
prior to the Closing Date that the Registration Statement or any Prospectus or
Proxy Statement or any amendment or supplement thereto contains any untrue
statement of a fact which, in the opinion of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP,
counsel for the Agents, is material or omits to state a fact which, in the
opinion of such counsel, is material and is required to be stated therein or is
necessary to make the statements therein not misleading.
(c) All corporate proceedings and other legal matters incident to the
authorization, form and validity of this Agreement, the Stock, the Registration
Statement, the Prospectuses, the Proxy Statements, the Plan, the Conversion and
the transactions contemplated thereby (including the Stock Split (as defined in
the Plan)), and all other legal matters relating to this Agreement, the
Conversion and the transactions contemplated hereby and thereby shall be
reasonably satisfactory in all material respects to counsel for the Agents, and
the Company shall have furnished to such counsel all documents and information
that they may reasonably request to enable them to pass upon such matters.
(d) Xxxxxxx Xxxxxxxx & Wood LLP shall have furnished to the
Representatives their written opinion, as counsel to the Company, addressed to
the Agents and dated the Closing Date, in form and substance reasonably
satisfactory to the Agents, in the form attached hereto as Exhibit A.
(e) The Representatives shall have received from Xxxxxxx Xxxxxxx &
Xxxxxxxx LLP, counsel for the Agents, such opinion or opinions, dated the
Closing Date, with respect to the issuance and sale of the Stock, the
Registration Statement, the Prospectuses and other related matters as the Agents
may reasonably require, and the Xxxxxx City Parties shall have furnished to such
counsel such documents as they reasonably request for the purpose of enabling
them to pass upon such matters.
22
(f) At the time of execution of this Agreement, the Representatives
shall have received from KPMG LLP a letter, in form and substance satisfactory
to the Representatives, addressed to the Agents and dated the date hereof (i)
confirming that they are independent public accountants within the meaning of
the Securities Act and are in compliance with the applicable requirements
relating to the qualification of accountants under Rule 2-01 of Regulation S-X
of the Commission and (ii) stating, as of the date hereof (or, with respect to
matters involving changes or developments since the respective dates as of which
specified financial information is given in the Prospectuses, as of a date not
more than five days prior to the date hereof), the conclusions and findings of
such firm with respect to the financial information and other matters ordinarily
covered by accountants' "comfort letters" to underwriters in connection with
registered public offerings.
(g) With respect to the letter of KPMG LLP referred to in the
preceding paragraph and delivered to the Representatives concurrently with the
execution of this Agreement (the "INITIAL LETTER"), the Company shall have
furnished to the Representatives a letter (the "BRING-DOWN LETTER") of such
accountants, addressed to the Agents and dated the Closing Date (i) confirming
that they are independent public accountants within the meaning of the
Securities Act and are in compliance with the applicable requirements relating
to the qualification of accountants under Rule 2-01 of Regulation S-X of the
Commission, (ii) stating, as of the date of the bring-down letter (or, with
respect to matters involving changes or developments since the respective dates
as of which specified financial information is given in the Prospectuses, as of
a date not more than five days prior to the date of the bring-down letter), the
conclusions and findings of such firm with respect to the financial information
and other matters covered by the initial letter and (iii) confirming in all
material respects the conclusions and findings set forth in the initial letter.
(h) The Company shall have furnished to the Agents a certificate,
dated the Closing Date, of its Chairman of the Board, President and Chief
Executive Officer and its Chief Operating Officer stating that:
(i) The representations, warranties and agreements of the Xxxxxx
City Parties in Section 2 are true and correct as of the Closing Date; each of
the Xxxxxx City Parties has complied with all its agreements contained herein;
and the conditions set forth in Sections 7(a) and 7(i) have been fulfilled; and
(ii) They have carefully examined the Registration Statement, the
Prospectuses and the Proxy Statements and, in their opinion (A) as of the
Effective Date or the date they were mailed to stockholders of the Company or
depositors of the Bank, as applicable, none of the Registration Statement, the
Prospectuses or the Proxy Statements included any untrue statement of a material
fact and did not omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, and (B) since the
Effective Date no event has occurred which should have been set forth in a
supplement or amendment to the Registration Statement or any Prospectus or Proxy
Statement.
23
(i) (i) Neither the Company nor any of its subsidiaries shall have
sustained since the date of the latest audited financial statements included or
incorporated by reference in the Prospectuses any 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 Prospectuses and
(ii) since such date there shall not have been any change in the capital stock
or long-term debt of the Company or any of its subsidiaries 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 and its subsidiaries, otherwise than as set forth or
contemplated in the Prospectuses, the effect of which, in any such case
described in clause (i) or (ii), is, in the judgment of the Representatives, so
material and adverse as to make it impracticable or inadvisable to proceed with
the public offering or the delivery of the Stock being delivered on the Closing
Date on the terms and in the manner contemplated in the Prospectuses.
(j) Subsequent to the execution and delivery of this Agreement there
shall not have occurred any of the following: (i) trading in securities
generally on the New York Stock Exchange or Nasdaq or in the over-the-counter
market, or trading in any securities of the Company on any exchange or
inter-dealer quotation system or in the over-the-counter market, shall have been
suspended or the settlement of such trading generally shall have been materially
disrupted or minimum prices shall have been established on any such exchange or
inter-dealer quotation system or such market by the Commission, by such exchange
or by any other regulatory body or governmental authority having jurisdiction,
(ii) a banking moratorium shall have been declared by Federal or state
authorities, (iii) the United States shall have become engaged in hostilities,
there shall have been an escalation in hostilities involving the United States
or there shall have been a declaration of a national emergency or war by the
United States or (iv) there shall have occurred such a material adverse change
in general economic, political or financial conditions, including without
limitation as a result of terrorist activities after the date hereof (or the
effect of international conditions on the financial markets in the United States
shall be such) as to make it, in the judgment of the Representatives,
impracticable or inadvisable to proceed with the public offering or delivery of
the Stock being delivered on the Closing Date on the terms and in the manner
contemplated in the Prospectuses.
(k) Nasdaq shall have approved the Stock for inclusion, subject only
to official notice of issuance.
(l) The Representatives shall have received a letter from RP
Financial, LC, dated as of the Closing Date and addressed to the Agents, (i)
confirming that said firm is independent of the Xxxxxx City Parties and is
experienced and expert in the area of corporate appraisals, (ii) stating in
effect that the Independent Appraisal complies in all material respects with the
applicable requirements of the Conversion Regulations, and (iii) further stating
that its opinion of the aggregate pro forma market value of the Xxxxxx
24
City Parties, as converted, expressed in the Independent Appraisal as most
recently updated, remains in effect.
(m) At or prior to the Closing Date, the Representatives shall have
received (i) a copy of the letter from the OTS approving the OTS Application,
(ii) a copy of the letter from the NJ DOBI approving the NJ Application; (iii) a
copy of the order from the Commission declaring the Registration Statement
effective, (iv) a certificate from the FDIC evidencing the Bank's insurance of
accounts and (v) any other documents that the Representatives shall reasonably
request.
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance reasonably satisfactory
to counsel for the Agents.
SECTION 8. Indemnification and Contribution.
(a) The Xxxxxx City Parties jointly and severally shall indemnify and
hold harmless each Agent, each of its directors, officers and employees and each
person, if any, who controls any Agent within the meaning of the Securities Act,
from and against any loss, claim, damage, expense or liability, joint or
several, or any action in respect thereof (including, but not limited to, any
loss, claim, damage, liability or action relating to purchases and sales of
Stock), to which that Agent, director, officer, employee or controlling person
may become subject, under the Securities Act or otherwise, arising out of, or
based upon, (i) any untrue statement or alleged untrue statement of a material
fact contained in (A) the Registration Statement or any Prospectus or Proxy
Statement or in any amendment or supplement thereto, (B) any Conversion
Application, (C) any other instrument or document of the Xxxxxx City Parties or
based upon written information supplied by any of the Xxxxxx City Parties filed
in any State or jurisdiction to register or qualify any or all of the Shares
under the securities laws thereof (collectively, the "BLUE SKY APPLICATIONS") or
(D) any materials or information provided to investors by, or with the approval
of, the Xxxxxx City Parties in connection with the marketing of the offering of
the Stock ("MARKETING MATERIALS"), including any roadshow or investor
presentations made to investors by any of the Xxxxxx City Parties (whether in
person or electronically), (ii) the omission or alleged omission to state in the
Registration Statement or any Prospectus, Proxy Statement, Conversion
Application, Marketing Materials, or Blue Sky Application, or any amendment or
supplement to any of the foregoing, any material fact required to be stated
therein or necessary to make the statements therein not misleading or (iii) any
act or failure to act or any alleged act or failure to act by any Agent in
connection with, or relating in any manner to, the Stock, the Conversion or the
Offering (provided that the Xxxxxx City Parties shall not be liable under this
clause (iii) to the extent that it is determined in a final judgment by a court
of competent jurisdiction that such loss, claim, damage, liability or action
resulted directly from any such acts or failures to act undertaken or omitted to
be taken by such Agent through its gross negligence or willful misconduct), and
shall reimburse each Agent and each such director, officer, employee or
controlling person promptly upon demand for any legal or
25
other expenses reasonably incurred by that Agent, director, officer, employee or
controlling person in connection with investigating or defending or preparing to
defend against any such loss, claim, damage, liability or action as such
expenses are incurred; provided, however, that the Xxxxxx City Parties shall not
be liable in any such case to the extent that any such loss, claim, damage,
liability or action arises out of, or is based upon, any untrue statement or
alleged untrue statement or omission or alleged omission made in the
Registration Statement or any Prospectus, or in any such amendment or
supplement, in reliance upon and in conformity with written information
concerning such Agent furnished to the Company through the Representatives by or
on behalf of such Agent specifically for inclusion therein which information
consists solely of the information specified in Section 8(e). The foregoing
indemnity agreement is in addition to any liability that the Xxxxxx City Parties
may otherwise have to any Agent or to any director, officer, employee or
controlling person of that Agent.
(b) Each Agent, severally and not jointly, shall indemnify and hold
harmless the Company, its officers who have signed the Registration Statement,
each of its directors and each person, if any, who controls the Company within
the meaning of the Securities Act, from and against any loss, claim, damage or
liability, joint or several, or any action in respect thereof, to which the
Company or any such director, officer or controlling person may become subject,
under the Securities Act or otherwise, insofar as such loss, claim, damage,
liability or action arises out of, or is based upon, (i) any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement or any Prospectus or in any amendment or supplement thereto or (ii)
the omission or alleged omission to state in the Registration Statement or any
Prospectus or any amendment or supplement thereto, any material fact required to
be stated therein or necessary to make the statements therein not misleading,
but in each case only to the extent that the untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with written information concerning such Agent furnished to the
Company through the Representatives by or on behalf of such Agent specifically
for inclusion therein, which information is limited to the information set forth
in Section 8(e), and shall reimburse the Company and any such director, officer
or controlling person for any legal or other expenses reasonably incurred by the
Company or any such director, officer or controlling person in connection with
investigating or defending or preparing to defend against any such loss, claim,
damage, liability or action as such expenses are incurred. The foregoing
indemnity agreement is in addition to any liability which any Agent may
otherwise have to the Company or any such director, officer or controlling
person.
(c) Promptly after receipt by an indemnified party under this Section
8 of notice of any claim or the commencement of any action, the indemnified
party shall, if a claim in respect thereof is to be made against the
indemnifying party under this Section 8, notify the indemnifying party in
writing of the claim or the commencement of that action; provided, however, that
the failure to notify the indemnifying party shall not relieve it from any
liability which it may have under this Section 8 except to the extent it has
been materially prejudiced by such failure and, provided further, that the
failure to
26
notify the indemnifying party shall not relieve it from any liability which it
may have to an indemnified party otherwise than under this Section 8. If any
such claim or action shall be brought against an indemnified party, and it shall
notify the indemnifying party thereof, the indemnifying party shall be entitled
to participate therein and, to the extent that it wishes, jointly with any other
similarly notified indemnifying party, to assume the defense thereof with
counsel reasonably satisfactory to the indemnified party. After notice from the
indemnifying party to the indemnified party of its election to assume the
defense of such claim or action, the indemnifying party shall not be liable to
the indemnified party under this Section 8 for any legal or other expenses
subsequently incurred by the indemnified party in connection with the defense
thereof other than reasonable costs of investigation; provided, however, that
the Representatives shall have the right to employ counsel to represent jointly
the Representatives and those other Agents and their respective directors,
officers, employees and controlling persons who may be subject to liability
arising out of any claim in respect of which indemnity may be sought by the
Agents against the Xxxxxx City Parties under this Section 8 if, in the
reasonable judgment of the Representatives, it is advisable for the
Representatives and those Agents, directors, officers, employees and controlling
persons to be jointly represented by separate counsel, and in that event the
fees and expenses of such separate counsel shall be paid, jointly and severally,
by the Xxxxxx City Parties. No indemnifying party shall (i) without the prior
written consent of the indemnified parties (which consent shall not be
unreasonably withheld), settle or compromise or consent to the entry of any
judgment with respect to any pending or threatened claim, action, suit or
proceeding in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified parties are actual or potential
parties to such claim or action) unless such settlement, compromise or consent
includes an unconditional release of each indemnified party from all liability
arising out of such claim, action, suit or proceeding, or (ii) be liable for any
settlement of any such action effected without its written consent (which
consent shall not be unreasonably withheld), but if settled with the consent of
the indemnifying party or if there be a final judgment of the plaintiff in any
such action, the indemnifying party agrees to indemnify and hold harmless any
indemnified party from and against any loss or liability by reason of such
settlement or judgment.
(d) If the indemnification provided for in this Section 8 shall for
any reason be unavailable to or insufficient to hold harmless an indemnified
party under Section 8(a) or 8(b) in respect of any loss, claim, damage or
liability, or any action in respect thereof, referred to therein, then each
indemnifying party shall, in lieu of indemnifying such indemnified party,
contribute to the amount paid or payable by such indemnified party as a result
of such loss, claim, damage or liability, or action in respect thereof, (i) in
such proportion as shall be appropriate to reflect the relative benefits
received by the Xxxxxx City Parties on the one hand and the Agents on the other
from the Offering or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above but also the relative
fault of the Xxxxxx City Parties on the one hand and the Agents on the other
with respect to the statements or omissions which resulted in such loss, claim,
damage or liability, or action in respect thereof, as well as
27
any other relevant equitable considerations. The relative benefits received by
the Xxxxxx City Parties on the one hand and the Agents on the other with respect
to the Offering shall be deemed to be in the same proportion as the total net
proceeds from the offering of the Stock under this Agreement (before deducting
expenses other than the fees and concessions actually paid by the Xxxxxx City
Parties to the Agents pursuant to Section 3(d) (the "AGENT FEES")) received by
the Xxxxxx City Parties, on the one hand, and the total Agent Fees (net of any
portion of the Agent Fees paid by the Agents to other selling dealers), on the
other hand, bear to the total gross proceeds from the Offering. The relative
fault shall be determined by reference to whether the untrue or alleged untrue
statement of a material fact or omission or alleged omission to state a material
fact relates to information supplied by the Xxxxxx City Parties or the Agents,
the intent of the parties and their relative knowledge, access to information
and opportunity to correct or prevent such statement or omission. The Xxxxxx
City Parties and the Agents agree that it would not be just and equitable if
contributions pursuant to this Section 8(d) were to be determined by pro rata
allocation (even if the Agents were treated as one entity for such purpose) or
by any other method of allocation which does not take into account the equitable
considerations referred to herein. The amount paid or payable by an indemnified
party as a result of the loss, claim, damage or liability, or action in respect
thereof, referred to above in this Section 8(d) shall be deemed to include, for
purposes of this Section 8(d), any legal or other expenses reasonably incurred
by such indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this Section 8(d), no Agent
shall be required to contribute any amount in excess of the amount by which the
amount actually paid (excluding reimbursable expenses) to such Agent under this
Agreement less the portion of such amount paid by such Agent to any other Agent
or any other member of the selling group exceeds the amount of any damages which
such Agent has otherwise paid or become liable to pay by reason of any untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Agents' obligations to
contribute as provided in this Section 8(d) are several in proportion to their
respective allocations of the Stock and not joint.
(e) The Agents severally confirm and the Company acknowledges that the
statements with respect to the Offering set forth [(i) solely with respect to
Xxxx Xxxx, in the third paragraph under the caption ("The Conversion and Stock
Offering--Plan of Distribution; Selling Agent Compensation--Subscription
Offering") and (ii) with respect to each Agent, in the second paragraph under
the caption ("The Conversion and Stock Offering--Plan of Distribution; Selling
Agent Compensation--Syndicated Offering--General")] in the Prospectuses are
correct and constitute the only information concerning such Agents furnished in
writing to the Company by or on behalf of the Agents specifically for inclusion
in the Registration Statement or any Prospectus, Proxy Statement, Conversion
Applications, Marketing Materials or Blue Sky Application.
(f) The obligations of the Bank pursuant to this Section 8 are
subject to and limited by the provisions of Section 23A of the Federal Reserve
Act.
28
SECTION 9. Termination. (a) The obligations of the Agents hereunder may be
terminated by the Representatives by notice given to and received by the Company
prior to the Closing if:
(i) the Plan is abandoned or terminated by the Company;
(ii) the Offering shall not have been completed, in accordance
with the provisions of the Plan, the Conversion Regulations and other applicable
law, by [__________], 2005; or
(iii) any of the events set forth in Sections 7(i) or 7(j) shall
have occurred or the Agents shall decline to effect the Closing for any reason
permitted under this Agreement.
(b) In the event that this Agreement is terminated pursuant to this
Section 9 or the Conversion is not consummated for any reason, including but not
limited to the inability to sell a minimum of [____________] shares of the
Stock in the Offering (including any permitted extension thereof) or such other
minimum number of Shares of the Stock as shall be established consistent with
the Plan and the Conversion Regulations, the Company shall promptly mail refunds
to all persons who have subscribed for Shares of the Stock in the Subscription
Offering, in each case in an amount equal to the full amount received from such
person, together with interest as provided in the Prospectuses.
SECTION 10. Reimbursement of Agents' Expenses. If the Company shall fail to
tender the Stock for delivery to the purchasers thereof by reason of any
failure, refusal or inability on the part of any of the Xxxxxx City Parties to
perform any agreement on its part to be performed, or because any other
condition of the Agents' obligations hereunder required to be fulfilled by any
of the Xxxxxx City Parties is not fulfilled, the Company will reimburse the
Agents for all reasonable out-of-pocket expenses (including fees and
disbursements of counsel) incurred by the Agents in connection with this
Agreement and the proposed Offering, and upon demand the Company shall pay the
full amount thereof to the Representatives.
SECTION 11. Notices, Etc. All statements, requests, notices and agreements
hereunder shall be in writing, and:
(a) if to the Agents, shall be delivered or sent by mail, telex or
facsimile transmission to (i) Xxxxxx Brothers Inc., 000 Xxxxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention: Xxxxx Xxxxxxxx, Managing Director (Fax:
__________), with a copy, in the case of any notice pursuant to Section 8(c), to
the Director of Litigation, Office of the General Counsel, Xxxxxx Brothers Inc.,
000 Xxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000 (Fax: 000-000-0000) and (ii)
Xxxx Xxxx & Co., 00 Xxxxxxxx Xxxxxxxx, Xxxxxxx Xxxx, Xxx Xxxxxx 00000-0000,
Attention: Xxxxx Xxxxxxx, Managing Director (Fax: __________);
29
(b) if to any of the Xxxxxx City Parties, shall be delivered or sent
by mail, telex or facsimile transmission to the address of the Company set forth
in the Registration Statement, Attention: Xxxxxx X. Xxxxxxxx, Xx., President and
Chief Executive Officer (Fax: __________).
Any such statements, requests, notices or agreements shall take effect at the
time of receipt thereof. The Company shall be entitled to act and rely upon any
request, consent, notice or agreement given or made on behalf of the Agents.
SECTION 12. Status of Agents. In soliciting offers to purchase the Stock
from the Company pursuant to this Agreement, the Agents are acting solely as
agents for the Company and not as principal. The Agents will make reasonable
efforts to assist the Company in obtaining performance for each purchaser whose
offer to purchase Stock from the Company has been solicited by the Agents, but
the Agents shall have no liability to the Company in the event any such purchase
is not consummated for any reason. If the Company shall default in its
obligations to deliver shares of Stock to a purchaser, the Company shall (i)
hold the Agents harmless against any loss, claim or damage arising from or as a
result of such default by the Company and (ii) in particular, pay to the Agents
any fee to which they would be entitled to in connection with such sale.
SECTION 13. Persons Entitled to Benefit of Agreement. This Agreement shall
inure to the benefit of and be binding upon the Agents, the Xxxxxx City Parties,
and their respective successors. This Agreement and the terms and provisions
hereof are for the sole benefit of only those persons, except that (A) the
representations, warranties, indemnities and agreements of the Xxxxxx City
Parties contained in this Agreement shall also be deemed to be for the benefit
of the directors, officers and employees of the Agents and each person or
persons, if any, who control any Agent within the meaning of Section 15 of the
Securities Act and (B) the indemnity agreement of the Agents contained in
Section 8(b) of this Agreement shall be deemed to be for the benefit of
directors of the Xxxxxx City Parties, officers of the Xxxxxx City Parties who
have signed the Registration Statement and any person controlling any of the
Xxxxxx City Parties within the meaning of Section 15 of the Securities Act.
Nothing in this Agreement is intended or shall be construed to give any person,
other than the persons referred to in this Section 13, any legal or equitable
right, remedy or claim under or in respect of this Agreement or any provision
contained herein.
SECTION 14. Complete Agreement. This Agreement, together with (i) solely as
among the Company, the MHC and Xxxx Xxxx, Sections 2 ("Services to be Provided
by Xxxx Xxxx"), 3 ("Compensation") and 8 ("Availability of 'STARS' Program") of
the Xxxx Xxxx Engagement Letter and (ii) solely as among the Company, the MHC
and Xxxxxx Brothers, Section 4 ("Fees") of the engagement letter, dated as of
January 6, 2005, by and among the Company, the MHC and Xxxxxx Brothers,
constitutes the entire agreement among the parties hereto pertaining to the
subject matter hereof.
SECTION 15. Survival. (a) The respective indemnities, representations,
warranties and agreements of the Xxxxxx City Parties and the Agents contained in
this
30
Agreement or made by or on behalf on them, respectively, pursuant to this
Agreement, shall survive the delivery of and payment for the Stock and shall
remain in full force and effect, regardless of any investigation made by or on
behalf of any of them or any person controlling any of them.
(b) Solely as between the Company and Xxxx Xxxx, the provisions of
Paragraph 8, "Availability of 'STARS' Program," of the Xxxx Xxxx Engagement
Letter shall survive the issuance of the Stock (but not any termination or
cancellation of this Agreement) for a period of one (1) year, and any legal
representative, successor or assign of Xxxx Xxxx, and any of the Xxxxxx City
Parties shall be entitled during such period to the benefit of the agreements
contained therein.
SECTION 16. Definition of the Terms "BUSINESS DAY" and "SUBSIDIARY". For
purposes of this Agreement, (a) "BUSINESS DAY" means each Monday, Tuesday,
Wednesday, Thursday or Friday which is not a day on which banking institutions
in New York are generally authorized or obligated by law or executive order to
close and (b) "SUBSIDIARY" has the meaning set forth in Rule 405 of the Rules
and Regulations.
SECTION 17. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of New York.
SECTION 18. Counterparts. This Agreement may be executed in one or more
counterparts and, if executed in more than one counterpart, the executed
counterparts shall each be deemed to be an original but all such counterparts
shall together constitute one and the same instrument.
SECTION 19. Headings. The headings herein are inserted for convenience of
reference only and are not intended to be part of, or to affect the meaning or
interpretation of, this Agreement.
31
If the foregoing correctly sets forth the agreement among the Company,
the Bank, the MHC and the Agents, please indicate your acceptance in the space
provided for that purpose below.
XXXXXX CITY BANCORP, INC.
By:
-------------------------------------
Xxxxxx X. Xxxxxxxx, Xx.
President and Chief Executive Officer
XXXXXX CITY SAVINGS BANK
By:
-------------------------------------
Xxxxxx X. Xxxxxxxx, Xx.
President and Chief Executive Officer
XXXXXX CITY, MHC
By:
-------------------------------------
Xxxxxx X. Xxxxxxxx, Xx.
President and Chief Executive Officer
Accepted:
XXXXXX BROTHERS INC.
XXXX XXXX & CO., INC.
For themselves and as Representatives
of the several Agents named in Schedule
I hereto
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
2
SCHEDULE I
Agents
EXHIBIT A
[Form of Opinion of Xxxxxxx Xxxxxxxx & Xxxx LLP]
