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EXHIBIT 1.2
50,578,704 Shares
(subject to increase up to 58,165,509 shares
in the event of an oversubscription)
INDEPENDENCE COMMUNITY BANK CORP.
(a Delaware corporation)
Common Stock
(par value $.01 per share)
AGENCY AGREEMENT
, 1997
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SANDLER X'XXXXX & PARTNERS, L.P.
Two World Trade Center, 000xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Independence Community Bank Corp., a Delaware corporation (the
"Company"), Independence Community Bank Corp., a mutual holding company
organized under the laws of the State of New York (the "MHC") and Independence
Savings Bank, a New York-chartered stock savings bank (the "Bank"), hereby
confirm their agreement with Sandler X'Xxxxx & Partners, L.P. ("Sandler
X'Xxxxx" or the "Agent") with respect to the offer and sale by the Company of
50,578,704 shares (subject to increase up to 58,165,509 shares in the event of
an oversubscription) of the Company's Common Stock, par value $.01 per share
(the "Common Stock"). The shares of Common Stock to be sold by the Company are
hereinafter called the "Securities." In addition, as described herein, the
Company expects to contribute shares of Common Stock in an amount equal to 8%
of the shares of Common Stock sold in the Offerings (as hereinafter defined) to
the Independence Community Foundation (the "Foundation"), such shares
hereinafter being referred to as the "Foundation Shares".
The Securities are being offered for sale and the Foundation shares
are being contributed in accordance with the plan of conversion (the "Plan")
adopted by the Board of Directors of the Bank
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and the Board of Trustees of the MHC pursuant to which: (i) the MHC will
convert into a stock institution and will simultaneously combine with and into
the Bank, and the shares of common stock of the Bank currently outstanding will
be extinguished; (ii) the Company will sell the Securities in the Offerings (as
hereinafter defined); (iii) The Company will use a portion of the net proceeds
of the sale of the Securities to purchase all of the Capital Stock of the Bank;
and (iv) common stock of the Company held by the Bank will be canceled.
Pursuant to the Plan, the Company is offering to certain of the Bank's
depositors, and to the Bank's tax qualified employee benefit plans, including
the Employee Stock Ownership Plan (the "ESOP") rights to subscribe for the
Securities in a subscription offering (the "Subscription Offering"). To the
extent Securities are not subscribed for in the Subscription Offering, such
Securities may be offered to certain members of the general public, with first
preference given to natural persons residing in the counties in New York in
which the Bank has a branch office (the "Community Offering"). It is currently
anticipated by the Bank, the MHC and the Company that any Securities not
subscribed for in the Subscription Offering and Community Offering will be
offered, subject to Section 2 hereof, in a syndicated community offering (the
"Syndicated Community Offering"). The Subscription Offering, Community
Offering and the Syndicated Community Offering are hereinafter referred to
collectively as the "Offerings." The conversion of the MHC, the consolidation
of the MHC with and into the Bank, the acquisition of all of the Bank's capital
stock by the Company and the Offerings are hereinafter referred to collectively
as the "Conversion". It is acknowledged that the number of Securities to be
sold in the Offerings may be increased or decreased as described in the
Prospectus (as hereinafter defined). If the number of Securities is increased
or decreased in accordance with the Plan, the term "Securities" shall mean such
greater or lesser number, where applicable.
In connection with the Conversion and pursuant to the terms of the
Plan as described in the Prospectus, the Company has established the
Foundation. Immediately following the consummation of the Conversion, subject
to the approval of the establishment of the Foundation by the depositors of
Bank and compliance with certain conditions as may be imposed by regulatory
authorities, the Company will contribute newly issued shares of Common Stock in
a amount equal to 8% of the Securities sold in the Offering, or between
2,990,740 and 4,046,243 shares of Common Stock (subject to increase in certain
circumstances to 4,653,240 shares).
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on form S-1 (No. 333-_______) including
a prospectus for the registration of the Securities and the Foundation Shares
under the Securities Act of 1933, as amended, (the "1933 Act"), has filed such
amendments thereto, if any, and such amended prospectus as may have been
required to the date hereof by the Commission in order to declare such
registration statement effective, and will file such additional amendments
thereto and such amended prospectus and prospectus supplements as may hereafter
be required. Such registration statement (as amended to date, if applicable,
and as from time to time amended or supplemented hereafter) and the prospectus
constituting a part thereof (including in each case all documents incorporated
or deemed to be incorporated by reference therein, if any, and the information,
if any, deemed to be part thereof
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pursuant to the rules and regulations of the Commission under the 1933 Act, as
from time to time amended or supplemental pursuant to the 1933 Act or otherwise
(the "1933 Act Regulations")) are hereinafter referred to as the "Registration
Statement" and the "Prospectus", respectively, except that if any revised
prospectus that shall be used by the Company in connection with the
Subscription Offering, Community Offering or the Syndicated Community Offering
which differs from the Prospectus on file with the Commission at the time the
Registration Statement becomes effective (whether or not such revised
prospectus is required to be filed by the Company pursuant to Rule 424(b) of
the 1933 Act Regulations), the term "Prospectus" shall refer to such revised
prospectus from and after the time it is provided to the Agent for such use.
Concurrently with the execution of this Agreement, the Company is
delivering to the Agent copies of the Prospectus of the Company to be used in
the Subscription Offering and the Community Offering. Such prospectus contains
information with respect to the Bank, the MHC, the Company and the Common
Stock.
SECTION 1. REPRESENTATIONS AND WARRANTIES.
(a) The Company, the MHC and the Bank jointly and severally
represent and warrant to the Agent as of the date hereof as follows:
(i) The Registration Statement has been declared
effective by the Commission, no stop order has been issued with
respect thereto and no proceedings therefor have been initiated or, to
the knowledge of the Company, the MHC and the Bank, threatened by the
Commission. At the time the Registration Statement became effective
and at the Closing Time referred to in Section 2 hereof, the
Registration Statement complied and will comply in all material
respects with the requirements of the 1933 Act and the 1933 Act
Regulations and did not 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.
The Prospectus, at the date hereof does not and at the Closing Time
referred to in Section 2 hereof will not, include an untrue statement
of a material fact or omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided, however, that
the representations and warranties in this subsection shall not apply
to statements in or omissions from the Prospectus made in reliance
upon and in conformity with information with respect to the Agent
furnished to the Company in writing by the Agent expressly for use in
the Prospectus (the "Agent Information," which the Company, the MHC
and the Bank acknowledge appears only in the sections captioned
"Market for Common Stock" and the first two paragraphs of the section
captioned "The Conversion - Marketing Arrangements" of the
Prospectus).
(ii) The Company has filed with the Department of the
Treasury, Office of Thrift Supervision (the "OTS") the Company's
application for approval of its acquisition of the Bank (the "Holding
Company Application") on Form H-(e)1-S promulgated under the
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savings and loan holding company provisions of the Home Owners' Loan
Act, as amended, ("HOLA") and the regulations promulgated thereunder.
The Company has received written notice from the OTS of its approval
of the acquisition of the Bank, such approval remains in full force
and effect and no order has been issued by the OTS suspending or
revoking such approval and no proceedings therefor have been initiated
or, to the knowledge of the Company, the MHC or the Bank, threatened
by the OTS. At the date of such approval, the Holding Company
Application complied in all material respects with the applicable
provisions of HOLA and the regulations promulgated thereunder.
(iii) Pursuant to the General Regulations of the Banking
Board of the State of New York and the rules and regulations of the
Federal Deposit Insurance Corporation ("FDIC") governing the
conversion of New York State chartered mutual savings banks and mutual
holding companies to stock form (the "Conversion Regulations") , the
Bank has filed with the Superintendent of Banks of the State of New
York (the "Superintendent") an application for conversion on Form
86-AC, and filed with the FDIC a Notice of Conversion, including the
Form 86-AC, and has filed such amendments thereto and supplementary
materials as may be required to the date hereof (such application, as
amended to date, if applicable, and as from time to time amended or
supplemented hereafter, is hereinafter referred to as the "Conversion
Application"), including copies of the Bank's Proxy Statement, to be
dated__________, 1997, relating to the Conversion (the "Proxy
Statement"), and the Prospectus. The Superintendent has, by letter
dated _________, 1997, approved the Conversion Application, such
approval remains in full force and effect and no order has been issued
by the Superintendent suspending or revoking such approval and no
proceedings therefor have been initiated or, to the knowledge of the
Company, the MHC or the Bank, threatened by the Superintendent. At
the date of such approval and at the Closing Time referred to in
Section 2, the Conversion Application complied and will comply in all
material respects with the applicable provisions of the Conversion
Regulations. The FDIC has, by letter dated _________, 1997, approved
the Conversion Application, such approval remains in full force and
effect and no order has been issued by the FDIC suspending or revoking
such approval and no proceedings therefor have been initiated or, to
the knowledge of the Company, the MHC or the Bank, threatened by the
FDIC.
(iv) At the time of their use, the Proxy Statement and
any other proxy solicitation materials will comply in all material
respects with the applicable provisions of the Conversion Regulations
and will not contain an untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading. The Company and the Bank will promptly file the
Prospectus and any supplemental sales literature with the Commission,
the Superintendent and the FDIC. The Prospectus and all supplemental
sales literature, as of the date the Registration Statement became
effective and at the Closing Time referred to in Section 2, complied
and will comply in all material respects with the applicable
requirements of the Conversion Regulations and, at or prior to the
time of their first use, will
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have received all required authorizations of the Superintendent and the
FDIC for use in final form.
(v) Neither the Commission, nor the Superintendent, nor
the FDIC has, by order or otherwise, prevented or suspended the use of
the Prospectus or any supplemental sales literature authorized by the
Company or the Bank for use in connection with the Offerings.
(vi) At the Closing Time referred to in Section 2, the
Company and the Bank will have completed the conditions precedent to
the Conversion and the establishment of the Foundation in accordance
with the Plan, the applicable 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 Company or the Bank by the OTS, the
Superintendent, the FDIC, or any other regulatory authority, other
than those which the regulatory authority permits to be completed
after the Conversion.
(vii) RP Financial, Inc., which prepared the valuation of
the Company and the Bank as part of the Conversion, has advised the
Company, the MHC and the Bank in writing that it satisfies all
requirements for an appraiser set forth in the Conversion Regulations
and any interpretations or guidelines issued by the Superintendent and
the FDIC with respect thereto. ___________ , which prepared the
opinion filed as Exhibit ___ of the Conversion Application as required
by the Conversion Regulations, satisfies all requirements for an
"independent executive compensation expert" within the meaning of the
Conversion Regulations.
(viii) The accountants who certified the consolidated
financial statements and supporting schedules of the Bank included in
the Registration Statement have advised the Company, the MHC and the
Bank in writing that they are independent public accountants within
the meaning of the Code of Ethics of the American Institute of
Certified Public Accountants, and that such accountants are, with
respect to the Company, the MHC and the Bank, independent certified
public accountants as required by the 1933 Act and the 1933 Act
Regulations.
(ix) The only direct subsidiary of the MHC is the Bank.
The only subsidiaries (the "Subsidiaries") of the Bank are
Independence Community Realty Corporation and Wiljo Development Corp.
(x) The consolidated financial statements and the
related notes thereto included in the Registration Statement and the
Prospectus present fairly the consolidated financial position of the
MHC, the Bank and the Subsidiaries at the dates indicated and the
results of operations, retained earnings and cash flows for the
periods specified, and comply as to form in all material respects with
the applicable accounting requirements of the 1933 Act Regulations and
the Conversion Regulations; except as otherwise stated in the
Registration Statement, said financial statements have been prepared
in conformity with generally
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accepted accounting principles applied on a consistent basis; and the
supporting schedules and tables included in the Registration Statement
present fairly the information required to be stated therein.
(xi) Since the respective dates as of which information
is given in the Registration Statement and the Prospectus, except as
otherwise stated therein (A) there has been no material adverse change
in the financial condition, results of operations or business affairs
of the Company, the MHC, the Bank and the Subsidiaries taken as a
whole, whether or not arising in the ordinary course of business, and
(B) except for transactions specifically referred to or contemplated
in the Prospectus, there have been no transactions entered into by the
Company, the MHC, the Bank or the Subsidiaries other than those in the
ordinary course of business, which are material with respect to the
Company, the MHC, the Bank and the Subsidiaries taken as a whole.
(xii) The Company has been duly incorporated and is
validly existing as a corporation in good standing under the laws of
the State of Delaware with corporate power and authority to own, lease
and operate its properties and to conduct its business as described in
the Prospectus and to enter into and perform its obligations under
this Agreement; and the Company is duly qualified as a foreign
corporation to transact business and is in good standing in the State
of New York and in each jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of property or
the conduct of business, except where the failure to so qualify would
not have a material adverse effect on the financial condition, results
of operations or business affairs of the Company, the Bank, and the
Subsidiaries, taken as a whole.
The MHC has been duly chartered and is validly existing as a
mutual holding company under the laws of the State of New York with
corporate power and authority to own, lease and operate its properties
and to conduct its business as described in the Prospectus and to
enter into and perform its obligations under this Agreement; the MHC
is qualified to do business in any jurisdiction in which the failure
to so qualify would have a material adverse effect on the financial
condition, results of operations or business of the Company, the MHC,
the Bank and the Subsidiaries, taken as a whole; upon consummation of
the Conversion, the MHC will merge with and into the Bank, with the
Bank being the surviving institution.
(xiii) Upon consummation of the Conversion and the
contribution of the Foundation Shares as described in the Prospectus,
the authorized, issued and outstanding capital stock of the Company
will be as set forth in the Prospectus under "Capitalization" (except
for subsequent issuances, if any, pursuant to reservations, agreements
or employee benefit plans referred to in the Prospectus); no shares
of Common Stock have been or will be issued and outstanding prior to
the Closing Time referred to in Section 2; at the time of Conversion,
the Securities will have been duly authorized for issuance and, when
issued and delivered by the Company pursuant to the Plan against
payment of the consideration
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calculated as set forth in the Plan, will be duly and validly issued
and fully paid and non-assessable; the terms and provisions of the
Common Stock and the capital stock of the Company conform to all
statements relating thereto contained in the Prospectus; the
certificates representing the shares of Common Stock conform to the
requirements of applicable law and regulations; and the issuance of
the Securities is not subject to preemptive or other similar rights.
(xiv) The Bank, as of the date hereof, is a New York
State chartered savings bank in mutual form and upon consummation of
the Conversion will be a New York State chartered savings bank in
stock form, in both instances with full corporate power and authority
to own, lease and operate its properties and to conduct its business
as described in the Prospectus; the Company, the MHC, the Bank and the
Subsidiaries have obtained all licenses, permits and other
governmental authorizations currently required for the conduct of
their respective businesses or required for the conduct of their
respective businesses as contemplated by the Holding Company
Application and the Conversion Application, except where the failure
to obtain such licenses, permits or other governmental authorizations
would not have a material adverse effect on the financial condition,
results of operations or business affairs of the Company, the MHC, the
Bank and the Subsidiaries taken as a whole; all such licenses, permits
and other governmental authorizations are in full force and effect and
the Company, the MHC, the Bank and the Subsidiaries are in all
material respects in compliance therewith; neither the Company, the
MHC, the Bank nor any of the Subsidiaries has received notice of any
proceeding or action relating to the revocation or modification of any
such license, permit or other governmental authorization which, singly
or in the aggregate, if the subject of an unfavorable decision, ruling
or finding, might have a material adverse effect on the financial
condition, results of operations or business affairs of the Company,
the MHC, the Bank and the Subsidiaries, taken as a whole, and the Bank
is in good standing under the laws of the United States and is
qualified as a foreign corporation in any jurisdiction in which the
failure to so qualify would not have a material adverse effect on the
financial condition, results of operations or business affairs of the
Company, the MHC, the Bank and the Subsidiaries, taken as a whole.
(xv) The deposit accounts of the Bank are insured by the
FDIC up to the applicable limits and upon consummation of the
Conversion, the liquidation account for the benefit of eligible
account holders will be duly established in accordance with the
requirements of the Conversion Regulations. The Bank is a "qualified
thrift lender" within the meaning of 12 U.S.C. Section 1467a(m).
(xvi) Upon consummation of the Conversion, the authorized
capital stock of the Bank will be ____________ shares of commons
stock, par value $0.01 per share (the "Bank Common Stock") and
__________ shares of serial preferred stock, par value $0.01 per share
(the "Bank Preferred stock"), and the issued and outstanding capital
stock of the Bank will be 1,000 shares of Bank Common stock; ___
shares of Bank Common Stock and no shares of Bank Preferred Stock are
issued and outstanding as of the date hereof. No additional
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shares of Bank Common Stock and no shares of Bank Preferred Stock will
be issued prior to the Closing Time referred to in Section 2; the
issued and outstanding shares of Bank Common stock have been duly
authorized and validly issued, are fully paid and nonassessable, and
have been issued in compliance with all federal and state securities
laws and are owned by the MHC beneficially and of record free and
clear of any security interest, mortgage, pledge, lien, encumbrance,
claim or equity. The shares of Bank Common Stock to be issued to the
Company will have been duly authorized for issuance and, when issued
and delivered by the Bank pursuant to the Plan against payment of the
consideration calculated as set forth in the Plan and as described in
the Prospectus, will be duly and validly issued and fully paid and
nonassessable, and all such Bank Common Stock will be owned
beneficially and of record by the Company free and clear of any
security interest, mortgage, pledge, lien, encumbrance or legal or
equitable claim; the terms and provisions of the Bank Common Stock and
the Bank Preferred Stock conform to all statements relating thereto
contained in the Prospectus, and the certificates representing the
shares of the Bank Common Stock will conform with the requirements of
applicable laws and regulations; and the issuance of the Bank Common
stock is not subject to preemptive or similar rights.
(xvii) The Foundation has been duly incorporated and is
validly existing as a non-stock corporation in good standing under the
laws of the State of Delaware with corporate power and authority to
own, lease and operate its properties and to conduct its business as
described in the Prospectus; the Foundation will not be a savings and
loan holding company within the meaning of 12 C.F.R. Section 574.2(q)
as a result of the issuance of shares of Common Stock to it in
accordance with the terms of the Plan and in the amounts as described
in the Prospectus; no approvals are required to establish the
Foundation and to contribute the shares of Common Stock thereto as
described in the Prospectus other than those imposed by the
Superintendent and the FDIC; except as specifically disclosed in the
Prospectus and the Proxy Statement, there are no agreements and/or
understandings, written or oral, between the Company and/or the Bank
and the Foundation with respect to the control, directly or
indirectly, over the voting and the acquisition or disposition of the
Foundation Shares; at the time of the Conversion, the Foundation
Shares will have been duly authorized for issuance and, when issued
and contributed by the Company pursuant to the Plan, will be duly and
validly issued and fully paid and non-assessable; and the issuance of
the Foundation Shares is not subject to preemptive or similar rights.
(xviii) Each Subsidiary has been duly incorporated and is
validly existing as a corporation in good standing under the laws of
the jurisdiction of its incorporation, has full corporate power and
authority to own, lease and operate its properties and to conduct its
business as descried in the Registration Statement and Prospectus, is
duly qualified to transact business and is in good standing in each
jurisdiction in which such qualification is required, whether by
reason of the ownership or leasing of property or the conduct of
business, except where the failure to so qualify would not have a
material adverse effect on the financial condition, results of
operations or business of the Company, the MHC, the Bank and the
Subsidiaries, taken as a whole; the activities of the Subsidiaries are
permitted to
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subsidiaries of a New York State chartered savings bank by the rules,
regulations, resolutions and practices of the Superintendent and the
FDIC; all of the issued and outstanding capital stock of the
Subsidiaries has ben duly authorized and validly issued, is fully paid
and nonassessable and is owned by the Bank directly, free and clear of
any security interest, mortgage, pledge, lien, encumbrance or legal or
equitable claim.
(xix) This Agreement has been duly executed and delivered
by, and is the valid and binding agreement of, the Company, the MHC
and the Bank, enforceable in accordance with its terms, except as may
be limited by bankruptcy, insolvency or other laws affecting the
enforceability of the rights of creditors generally and judicial
limitations on the right of specific performance and except as the
enforceability of indemnification and contribution provisions may be
limited by applicable securities laws.
(xx) Subsequent to the respective dates as of which
information is given in the Registration Statement and the Prospectus
and prior to the Closing Time, except as otherwise may be indicated or
contemplated therein, neither the Company, the MHC, the Bank nor the
Subsidiaries will have (A) issued any securities or incurred any
liability or obligation, direct or contingent, or borrowed money,
except borrowings in the ordinary course of business from the same or
similar sources and in similar amounts as indicated in the Prospectus,
or (B) entered into any transaction or series of transactions which is
material in light of the business of the Company and the Bank, taken
as a whole, excluding the origination, purchase and sale of loans or
the purchase or sale of investment securities or mortgage-backed
securities in the ordinary course of business.
(xxi) No approval of any regulatory or supervisory or
other public authority is required in connection with the execution
and delivery of this Agreement or the issuance of the Securities and
the Foundation Shares that has not been obtained and a copy of which
has been delivered to the Agent, except as may be required under the
securities laws of various jurisdictions.
(xxii) Neither the Company, the MHC, the Bank nor any of
the Subsidiaries is in violation of its certificate of incorporation,
organization certificate, articles of incorporation or charter as the
case may be, or bylaws; and neither the Company, the MHC, the Bank nor
any of the Subsidiaries is in default (nor has any event occurred
which, with notice or lapse of time or both, would constitute a
default) in the performance or observance of any obligation,
agreement, covenant or condition contained in any contract, indenture,
mortgage, loan agreement, note, lease or other instrument to which the
Company, the MHC, the Bank, or any of the Subsidiaries is a party or
by which it or any of them may be bound, or to which any of the
property or assets of the Company, the MHC, the Bank or any of the
Subsidiaries is subject, except for such defaults that would not,
individually or in the aggregate, have a material adverse effect on
the financial condition, results of operations or business of the
Company, the MHC, the Bank and the Subsidiaries, taken as a whole; and
there are no contracts or documents of the Company, the MHC, the Bank
or any of the Subsidiaries
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which are required to be filed as exhibits to the Registration
Statement or the Conversion Application which have not been so filed.
(xxiii) The execution, delivery and performance of this
Agreement and the consummation of the transactions contemplated herein
have been duly authorized by all necessary corporate action and do not
and will not conflict with or constitute a breach of, or default
under, or result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company, the MHC, the
Bank or any of the Subsidiaries pursuant to, any contract, indenture,
mortgage, loan agreement, note, lease or other instrument to which the
Company, the MHC, the Bank or any of the Subsidiaries is a party or by
which it or any of them may be bound, or to which any of the property
or assets of the Company, the MHC, the Bank or any of the Subsidiaries
is subject, except for such defaults that would not, individually or
in the aggregate, have a material adverse effect on the financial
condition, results of operations or business of the Company, the MHC,
the Bank and the Subsidiaries taken as a whole; nor will such action
result in any violation of the provisions of the certificate of
incorporation, organization certificate, articles of incorporation or
charter, as the case may be, or the by-laws of the Company, the MHC,
the Bank or any of the subsidiaries, or any applicable law,
administrative regulation or administrative or court decree to which
the Company, the MHC, the Bank or any of the Subsidiaries is subject
or by which any of their property or assets may be bound.
(xxiv) No labor dispute with the employees of the Company,
the MHC, the Bank or any of the Subsidiaries exists or, to the
knowledge of the Company, the MHC or the Bank, is threatened; and the
Company, the MHC and the Bank are not aware of any existing or
threatened labor disturbance by the employees of any of its principal
suppliers or contractors which might be expected to result in any
material adverse change in the financial condition, results of
operations or business of the Company, the MHC and the Bank, taken as
a whole
(xxv) Each of the Company, the MHC, the Bank and the
Subsidiaries has good and marketable title to all properties and
assets for which ownership is material to the business of the Company,
the MHC, the Bank or the Subsidiaries and to those properties and
assets described in the Prospectus as owned by them, free and clear of
all liens, charges, encumbrances or restrictions, except such as are
described in the Prospectus or are not material in relation to the
business of the Company, the MHC, the Bank and the Subsidiaries taken
as a whole; and all of the leases and subleases material to the
business of the Company, the MHC the Bank and the Subsidiaries, taken
as a whole under which the Company, the MHC, the Bank and any of the
Subsidiaries hold properties, including those described in the
Prospectus, are valid and binding agreements of the Company, the MHC,
the Bank and any of the Subsidiaries enforceable in accordance with
their terms.
(xxvi) Neither the Company, the MHC, the Bank nor any of
the Subsidiaries is in violation of any directive from the OTS, the
Superintendent or the FDIC to make any
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material change in the method of conducting their respective
businesses; the Bank and the Subsidiaries have conducted and are
conducting their businesses so as to comply with all applicable
statutes, regulations and administrative and court decrees (including,
without limitation, all regulations, decisions, directives and orders
of the Superintendent or the FDIC).
(xxvii) There is no action, suit or proceeding before or by
any court or governmental agency or body, domestic or foreign, now
pending, or, to the knowledge of the Company, the MHC or the Bank,
threatened, against or affecting the Company, the MHC, the Bank or any
of the Subsidiaries which is required to be disclosed in the
Registration Statement (other than as disclosed therein), or which
might result in any material adverse change in the financial
condition, results of operations or business affairs of the Company,
the MHC, the Bank and the Subsidiaries, taken as a whole, or which
might materially and adversely affect the properties or assets thereof
or which might materially and adversely affect the consummation of the
Conversion; all pending legal or governmental proceedings to which the
Company, the MHC, the Bank or any of its Subsidiaries is a party or of
which any of their respective property or assets is the subject which
are not described in the Registration Statement, including ordinary
routine litigation incidental to their business, are considered in the
aggregate not material; and there are no contracts or documents of the
Company, the MHC, the Bank or any of the Subsidiaries which are
required to be filed as exhibits to the Registration Statement or the
Conversion Application which have not been so filed.
(xxviii) The Bank has obtained an opinion of its counsel,
Elias, Matz, Xxxxxxx & Xxxxxxx L.L.P., with respect to the legality of
the Securities to be issued and the Foundation Shares and the federal
income tax consequences of the Conversion, copies of which are filed
as exhibits to the Registration Statement; the Bank has obtained the
opinion of Ernst & Young LLP with respect to the state and local
income tax consequences of the Conversion (including landing franchise
tax, sales or use tax, license fee on foreign corporations, stock
transfer tax, real property transfer gain tax and real estate transfer
tax) and the federal income tax consequences of the Foundation, copies
of which are filed as exhibits to the Registration Statement; all
material aspects of the aforesaid opinions are accurately summarized
in the Prospectus; the facts and representations upon which such
opinions are based are truthful, accurate and complete in all material
respects; and neither the Bank, the MHC nor the Company has taken or
will take any action inconsistent therewith.
(xxix) The Company is not required to be registered under
the Investment Company Act of 1940, as amended.
(xxx) All of the loans represented as assets on the most
recent consolidated financial statements or consolidated selected
financial information of the Bank included in the Prospectus meet or
are exempt from all requirements of federal, state or local law
pertaining to lending, including without limitation truth in lending
(including the requirements of
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Regulation Z and 12 C.F.R. Part 226 and Section 560.210), real estate
settlement procedures, consumer credit protection, equal credit
opportunity and all disclosure laws applicable to such loans, except
for violations which, if asserted, would not result in a material
adverse effect on the financial condition, results of operations or
business of the Company, the MHC, the Bank and the Subsidiaries taken
as a whole.
(xxxi) To the knowledge of the Company, the MHC and the
Bank, with the exception of the intended loan to the Bank's ESOP by
the Company to enable the ESOP to purchase shares of Common Stock in
an amount of up to 8% of the Common Stock issued in the Conversion,
none of the Company, the Bank or any employee of the Bank has made any
payment of funds of the Company, the MHC or the Bank as a loan for the
purchase of the Common Stock or made any other payment of funds
prohibited by law, and no funds have been set aside to be used for any
payment prohibited by law.
(xxxii) The Company, the MHC, the Bank and the Subsidiaries
are 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.
(xxxiii) Neither the Company, the MHC, the Bank nor any of
the Subsidiaries nor any properties owned or operated by the Company,
the MHC, the Bank or any of the Subsidiaries is in violation of or
liable under any Environmental Law (as defined below), except for such
violations or liabilities that, individually or in the aggregate,
would not have a material adverse effect on the financial condition,
results of operations or business of the Company, the MHC, the Bank
and the Subsidiaries, taken as a whole. There are no actions, suits
or proceedings, or demands, claims, notices or investigations
(including, without limitation, notices, demand letters or requests
for information from any environmental agency) instituted or pending,
or to the knowledge of the Company, the MHC or the Bank threatened,
relating to the liability of any property owned or operated by the
Company, the MHC, the Bank or any Subsidiary thereof, under any
Environmental Law. For purposes of this subsection, the term
"Environmental Law" means any federal, state, local or foreign law,
statute, ordinance, rule, regulation, code, license, permit,
authorization, approval, consent, order, judgment, decree, injunction
or agreement with any regulatory authority relating to (i) the
protection, preservation or restoration of the environment (including,
without limitation, air, water, vapor, surface water, groundwater,
drinking water supply, surface soil, subsurface soil, plant and animal
life or any other natural resource), and/or (ii) the use, storage,
recycling, treatment, generation, transportation, processing,
handling, labeling, production, release or disposal of any substance
presently listed, defined, designated or classified as hazardous,
toxic, radioactive or dangerous, or otherwise regulated, whether by
type or by quantity, including any material containing any such
substance as a component.
(xxxiv) The Company, the MHC, the Bank and the Subsidiaries
have filed all federal income and state and local franchise tax
returns required to be filed and have made
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timely payments of all taxes shown as due and payable in respect of
such returns, and no deficiency has been asserted with respect thereto
by any taxing authority.
(xxxv) The Company has received approval, subject to
regulatory approval to consummate the Offerings and issuance, to have
the Securities quoted on the Nasdaq Stock Market (the "Nasdaq National
Market") effective at the Closing Time referred to in Section 2
hereof.
(b) Any certificate signed by any officer of the Company, the MHC
or the Bank and delivered to either of the Agent or counsel for the Agent shall
be deemed a representation and warranty by the Company, the MHC or the Bank to
each of the matters covered thereby.
SECTION 2. APPOINTMENT OF SANDLER X'XXXXX; SALE AND DELIVERY
OF THE SECURITIES; CLOSING.
On the basis of the representations and warranties herein contained
and subject to the terms and conditions herein set forth, the Company hereby
appoints Sandler X'Xxxxx as its Agent to consult with and advise the Company,
and to assist the Company with the solicitation of subscriptions and purchase
orders for Securities, in connection with the Company's sale of Common Stock in
the Subscription Offering, Community Offering and the Syndicated Community
Offering. On the basis of the representations and warranties herein contained,
and subject to the terms and conditions herein set forth, Sandler X'Xxxxx
accepts such appointment and agrees to use its best efforts to assist the
Company with its solicitation of subscriptions and purchase orders for
Securities in accordance with this Agreement; provided, however, that the Agent
shall not be obligated to take any action that is inconsistent with any
applicable laws, regulations, decisions or orders. The services to be rendered
by Sandler X'Xxxxx pursuant to this appointment include the following: (i)
consulting as to the securities marketing implications of any aspect of the
Plan or related corporate documents; (ii) reviewing with the Bank's Board of
Directors the independent appraiser's appraisal of the common stock; (iii)
reviewing all offering documents, including the Prospectus, stock order forms
and related offering materials (it being understood that the preparation and
filing of such documents is the sole responsibility of the Company and the Bank
and their counsel); (iv) assisting in the design and implementation of a
marketing strategy for the Offerings; (v) assisting in obtaining all requisite
regulatory approvals; (vi) assisting in connection with listing the Company's
Common Stock on the Nasdaq Stock Market; (vii) assisting Bank management in
preparing for meetings with potential investors and broker-dealers; and (viii)
providing such other general advice and assistance as may be requested to
promote the successful completion of the Offerings.
The appointment of the Agent hereunder shall terminate upon the
earlier to occur of (a) forty-five (45) days after the last day of the
Subscription Offering or the Community Offering, unless the Company and the
Agent agree in writing to extend such period and the Superintendent agrees to
extend the period of time in which the Shares may be sold, or (b) the receipt
and acceptance of
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subscriptions and purchase orders for all of the Securities or (c) the
completion of the Syndicated Community Offering.
If any of the Securities remain available after the expiration of the
Subscription Offering or the Community Offering, at the request of the Company
and the Bank, Sandler X'Xxxxx will seek to form a syndicate of registered
brokers or dealers ("Selected Dealers") to assist in the solicitation of
purchase orders of such Securities on a best efforts basis, subject to the
terms and conditions set forth in a selected dealers' agreement (the "Selected
Dealers' Agreement"), substantially in the form set forth in Exhibit A to this
Agreement. Sandler X'Xxxxx will endeavor to limit the aggregate fees to be
paid by the Company and the Bank under any such Selected Dealers' Agreement to
an amount competitive with gross underwriting discounts charged at such time
for underwritings of comparable amounts of stock sold at a comparable price per
share in a similar market environment; provided, however, that the aggregate
fees payable to Xxxxxx X'Xxxxx and Selected Dealers shall not exceed 7% of the
aggregate Purchase Price of the Securities sold by such Selected Dealers.
Xxxxxx X'Xxxxx will endeavor to distribute the Securities among the Selected
Dealers in a fashion which best meets the distribution objective of the Company
and the requirements of the Plan, which may result in limiting the allocation
of stock to certain Selected Dealers. It is understood that in no event shall
Sandler X'Xxxxx be obligated to act as a Selected Dealer or to take or purchase
any Securities.
In the event the Company is unable to sell at least the total minimum
of the Securities, as set forth on the cover page of the Prospectus, within the
period herein provided, this Agreement shall terminate and the Company shall
refund to any persons who have subscribed for any of the Securities the full
amount which it may have received from them, together with interest as provided
in the Prospectus, and no party to this Agreement shall have any obligation to
the others hereunder, except for the obligations of the Company and the Bank as
set forth in Sections 4, 6(a) and 7 hereof and the obligations of the Agent as
provided in Sections 6(b) and 7 hereof. Appropriate arrangements for placing
the funds received from subscriptions for Securities or other offers to
purchase Securities in special interest-bearing accounts with the Bank until
all Securities are sold and paid for were made prior to the commencement of the
Subscription Offering, with provision for refund to the purchasers as set forth
above, or for delivery to the Company if all Securities are sold.
If at least the total minimum of Securities, as set forth on the cover
page of the Prospectus, are sold, the Company agrees to issue or have issued
the Securities sold and to release for delivery certificates for such
Securities at the Closing Time against payment therefor by release of funds
from the special interest-bearing accounts referred to above. The closing
shall be held at the office of Elias, Matz, Xxxxxxx & Xxxxxxx L.L.P., at 10:00
a.m., local time, or at such other place and time as shall be agreed upon by
the parties hereto, on a business day to be agreed upon by the parties hereto.
The Company shall notify the Agent by telephone, confirmed in writing, when
funds shall have been received for all the Securities. Certificates for
Securities shall be delivered directly to the purchasers thereof in accordance
with their directions. Notwithstanding the foregoing, certificates for
Securities purchased through Selected Dealers shall be made available to the
Agent for inspection at least 48 hours prior to the Closing Time at such office
as the Agent shall designate. The hour and date upon
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which the Company shall release for delivery all of the Securities, in
accordance with the terms hereof, is herein called the "Closing Time."
The Company will pay any stock issue and transfer taxes which may be
payable with respect to the sale of the Securities.
In addition to reimbursement of the expenses specified in Section 4
hereof, the Agent will receive the following compensation for its services
hereunder:
(a) one and five eighths percent (1.625%) of the aggregate
Purchase Price (as defined in the Prospectus) of the Securities sold in the
Subscription Offering and in the Community Offering, excluding in each case
shares purchased by (i) any employee benefit plan of the Company or the Bank
established for the benefit of their respective directors, officers and
employees, (ii) any director, officer or employee of the Company or the Bank or
members of their immediate families (which term shall mean parents,
grandparents, spouse, siblings, children and grandchildren); and
(b) with respect to any Securities sold by an NASD member firm
(other than Sandler X'Xxxxx) under the Selected Dealers' Agreement in the
Syndicated Community Offering, (i) the sales commission payable to Selected
Dealers under any Selected Dealers Agreement, (ii) any sponsoring dealer's fees
and (iii) a management fee to Sandler X'Xxxxx of one and one-half percent
(1.5%) of the aggregate Purchase Price of such Securities sold under any such
agreement. Any fees payable to Sandler X'Xxxxx for Securities under such
agreement shall be limited to an aggregate of one and five eighths percent
(1.625%) of the aggregate Purchase Price of such Securities.
If this Agreement is terminated by the Agent in accordance with the
provisions of Section 9(a) hereof or the Conversion is terminated by the
Company or the Bank, no fee shall be payable by the Company or the Bank to
Sandler X'Xxxxx; however, the Company shall reimburse the Agent for all of its
reasonable out-of-pocket expenses incurred prior to termination, including the
reasonable fees and disbursements of counsel for the Agent in accordance with
the provisions of Section 4 hereof.
All fees payable to the Agent hereunder shall be payable in
immediately available funds at Closing Time, or upon the termination of this
Agreement, as the case may be. In recognition of the long lead times involved
in the conversion process, the Bank agrees to make advance payments to the
Agent in the aggregate amount of $50,000, $25,000 of which has been previously
paid and the remaining $25,000 of which shall be payable upon execution hereof,
which shall be credited against any fees or reimbursement of expenses payable
hereunder.
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SECTION 3. COVENANTS OF THE COMPANY, THE MHC AND THE BANK.
The Company, the MHC and the Bank covenant with the Agent as follows:
(a) The Company, the MHC and the Bank will prepare and file such
amendments or supplements to the Registration Statement, the Prospectus, the
Conversion Application and the Proxy Statement as may hereafter be required by
the 1933 Act Regulations or the Conversion Regulations or as may hereafter be
requested by the Agent. Following completion of the Subscription Offering and
the Community Offering, in the event of a Syndicated Community Offering, the
Company and the Bank will (i) promptly prepare and file with the Commission a
post-effective amendment to the Registration Statement relating to the results
of the Subscription Offering and the Community Offering, any additional
information with respect to the proposed plan of distribution and any revised
pricing information or (ii) if no such post-effective amendment is required,
file with, or mail for filing to, the Commission a prospectus or prospectus
supplement containing information relating to the results of the Subscription
Offering and the Community Offering and pricing information pursuant to Rule
424(c) of the 1933 Act Regulations, in either case in a form acceptable to the
Agent. The Company, the MHC and the Bank will notify the Agent immediately,
and confirm the notice in writing, (i) of the effectiveness of any
post-effective amendment of the Registration Statement, the filing of any
supplement to the Prospectus and the filing of any amendment to the Conversion
Application, (ii) of the receipt of any comments from the Superintendent, the
FDIC, the OTS or the Commission with respect to the transactions contemplated
by this Agreement or the Plan, (iii) of any request by the Commission, the
Superintendent, the FDIC or the OTS for any amendment to the Registration
Statement or the Conversion Application or any amendment or supplement to the
Prospectus or for additional information, (iv) of the issuance by the
Superintendent or the FDIC of any order suspending the Offerings or the use of
the Prospectus or the initiation of any proceedings for that purpose, (v) of
the issuance by the Commission of any stop order suspending the effectiveness
of the Registration Statement or the initiation of any proceedings for that
purpose, and (vi) of the receipt of any notice with respect to the suspension
of any qualification of the Securities for offering or sale in any
jurisdiction. The Company, the MHC and the Bank will make every reasonable
effort to prevent the issuance of any stop order and, if any stop order is
issued, to obtain the lifting thereof at the earliest possible moment.
(b) The Company, the MHC and the Bank will give the Agent notice
of its intention to file or prepare any amendment to the Conversion Application
or Registration Statement (including any post-effective amendment) or any
amendment or supplement to the Prospectus (including any revised prospectus
which the Company proposes for use in connection with the Syndicated Community
Offering of the Securities which differs from the prospectus on file at the
Commission at the time the Registration Statement becomes effective, whether or
not such revised prospectus is required to be filed pursuant to Rule 424(b) of
the 1933 Act Regulations), will furnish the Agent with copies of any such
amendment or supplement a reasonable amount of time prior to such proposed
filing or use, as the case may be, and will not file any such amendment or
supplement or use any such prospectus to which the Agent or counsel for the
Agent may object.
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(c) The Company, the MHC and the Bank will deliver to the Agent as
many signed copies and as many conformed copies of the Conversion Application
and the Registration Statement as originally filed and of each amendment
thereto (including exhibits filed therewith or incorporated by reference
therein) as the Agent may reasonably request, and from time to time such
number of copies of the Prospectus as the Agent may reasonably request.
(d) During the period when the Prospectus is required to be
delivered, the Company, the MHC and the Bank will comply, at their own expense,
with all requirements imposed upon them by the Superintendent and the FDIC, by
the applicable Conversion Regulations, as from time to time in force, and by
the 1933 Act, the 1933 Act Regulations, the Securities Exchange Act of 1934, as
amended (the "1934 Act"), and the rules and regulations of the Commission
promulgated thereunder, including, without limitation, Regulation M under the
1934 Act, so far as necessary to permit the continuance of sales or dealing in
shares of Common Stock during such period in accordance with the provisions
hereof and the Prospectus.
(e) If any event or circumstance shall occur as a result of which
it is necessary, in the opinion of counsel for the Agent, to amend or
supplement the Prospectus in order to make the Prospectus not misleading in the
light of the circumstances existing at the time it is delivered to a purchaser,
the Company, the MHC and the Bank will forthwith amend or supplement the
Prospectus (in form and substance satisfactory to counsel for the Agent) so
that, as so amended or supplemented, the Prospectus will not include an untrue
statement of a material fact or omit to state a material fact necessary in
order to make the statements therein, in the light of the circumstances
existing at the time it is delivered to a purchaser, not misleading, and the
Company, the MHC and the Bank will furnish to the Agent a reasonable number of
copies of such amendment or supplement. For the purpose of this subsection,
the Company, the MHC and the Bank will each furnish such information with
respect to itself as the Agent may from time to time reasonably request.
(f) The Company, the MHC and the Bank will take all necessary
action, in cooperation with the Agent, to qualify the Securities for offering
and sale under the applicable securities laws of such states of the United
States and other jurisdictions as the Conversion Regulations may require and as
the Agent and the Company have agreed; provided, however, that the Company ,
the MHC and the Bank shall not be obligated to file any general consent to
service of process or to qualify as a foreign corporation in any jurisdiction
in which it is not so qualified. In each jurisdiction in which the Securities
have been so qualified, the Company, and the Bank will file such statements and
reports as may be required by the laws of such jurisdiction to continue such
qualification in effect for a period of not less than one year from the
effective date of the Registration Statement.
(g) The Company authorizes Sandler X'Xxxxx and any Selected
Dealers to act as agent of the Company in distributing the Prospectus to
persons entitled to receive subscription rights and other persons to be offered
Securities having record addresses in the states or jurisdictions set forth in
a survey of the securities or "blue sky" laws of the various jurisdictions in
which the Offerings will be made (the "Blue Sky Survey").
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(h) The Company will make generally available to its security
holders as soon as practicable, but not later than 60 days after the close of
the period covered thereby, an earnings statement (in form complying with the
provisions of Rule 158 of the 1933 Act Regulations) covering a twelve month
period beginning not later than the first day of the Company's fiscal quarter
next following the "effective date" (as defined in said Rule 158) of the
Registration Statement.
(i) During the period ending on the third anniversary of the
expiration of the fiscal year during which the closing of the transactions
contemplated hereby occurs, the Company will furnish to its stockholders as
soon as practicable after the end of each such fiscal year in such period an
annual report (including consolidated statements of financial condition and
consolidated statements of income, stockholders' equity and cash flows of the
Company, the Bank and the Subsidiaries certified by independent public
accountants) and, will make available to stockholders as soon as practicable
after the end of each of the first three quarters of each fiscal year
(beginning with the fiscal quarter ending after the effective date of the
Registration Statement), consolidated summary financial information of the
Company, the Bank and the Subsidiaries for such quarter in reasonable detail.
In addition, such annual report and quarterly consolidated summary financial
information shall be made public through the issuance of appropriate press
releases at the same time or prior to the time of the furnishing thereof to
stockholders of the Company.
(j) During the period ending on the third anniversary of the
expiration of the fiscal year during which the closing of the transactions
contemplated hereby occurs, the Company will furnish to the Agent (i) as soon
as publically available, a copy of each report or other document of the Company
furnished generally to stockholders of the Company or furnished to or filed
with the Commission under the 1934 Act or any national securities exchange or
system on which any class of securities of the Company is listed, and (ii) from
time to time, such other information concerning the Company as the Agent may
reasonably request.
(k) The Company, the MHC and the Bank will conduct the Conversion
(including the formation and operation of the Foundation) in all material
respects in accordance with the Plan, the Conversion Regulations and all other
applicable regulations, decisions and orders, including all applicable terms,
requirements and conditions precedent to the Conversion imposed upon the
Company or the Bank by the Superintendent, the FDIC or the OTS.
(l) Each of the Company and the Bank will use the net proceeds
received by it from the sale of the Securities in the manner specified in the
Prospectus under "Use of Proceeds."
(m) The Company will file with the Commission such reports on Form
SR as may be required pursuant to Rule 463 of the 1933 Act Regulations.
(n) The Company will file a registration statement for the Common
Stock under Section 12(g) of the 1934 Act prior to completion of the Offerings
and will request that such registration statement be effective upon completion
of the Conversion. The Company will maintain the effectiveness of such
registration for not less than three years. The Company will file with the
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Nasdaq Stock Market all documents and notices required by the Nasdaq Stock
Market of companies that have issued securities that are listed on the Nasdaq
Stock Market.
(o) During the period beginning on the date hereof and ending on
the later of the third anniversary of the Closing Time or the date on which the
Agent receives full payment in satisfaction of any claim for indemnification or
contribution to which it may be entitled pursuant to Sections 6 or 7,
respectively, neither the Company nor the Bank shall, without the prior written
consent of the Agent, which consent shall not be unreasonably withheld, take or
permit to be taken any action that could result in the Bank Common Stock or
Bank Preferred Stock becoming subject to any security interest, mortgage,
pledge, lien or encumbrance; provided, however, that this covenant shall be
null and void if the Board of Governors of the Federal Reserve System, by
regulation, policy statement or interpretive release, or letter, permits
indemnification of the Agent by the Bank as contemplated by Section 6(a)
hereof.
(p) The Company and the Bank will take such actions and furnish
such information as are reasonably requested by the Agent in order for the
Agent to ensure compliance with the National Association of Securities Dealers,
Inc.'s "Interpretation Relating to Free-Riding and Withholding."
(q) Other than in connection with any employee benefit plan or
arrangement described in the Prospectus, the Company will not, without the
prior written consent of the Agent, sell or issue, contract to sell or
otherwise dispose of, any shares of Common Stock other than the Securities for
a period of 180 days following the Closing Time.
(r) The Company and the Bank will comply with the conditions
imposed by or agreed to with the OTS in connection with its approval of the
Holding Company Application and with the Superintendent or the FDIC in
connection with their approval of, or non-objection to, the Conversion
Application including those conditions relating to the establishment and the
operation of the Foundation; the Company and the Bank shall use their best
efforts to ensure that the Foundation submits within the time frames required
by applicable law a request to the Internal Revenue Service to be recognized as
a tax-exempt organization under Section 501(c)(3) of the Internal Revenue Code
of 1986, as amended (the "Code"); the Company and the Bank will take no action
which will result in the possible loss of the Foundation's tax-exempt status;
and neither the Company nor the Bank will contribute any additional assets to
the Foundation until such time that such additional contributions will be
deductible for federal and state income tax purposes.
(s) During the period ending on the first anniversary of the
Closing Time, the Bank will comply with all applicable law and regulation
necessary for the Bank to continue to be a "qualified thrift lender" within the
meaning of 12 U.S.C. Section 1467a(m).
(t) The Company shall not deliver the Securities until the Company
and the Bank have satisfied each condition set forth in Section 5 hereof,
unless such condition is waived by the Agent,.
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(u) The Company or the Bank will furnish to Sandler X'Xxxxx as
early as practicable prior to the Closing Date, but no later than two (2) full
business days prior thereto, a copy of the latest available unaudited interim
consolidated financial statements of the Bank and the Subsidiaries which have
been read by Ernst & Young LLP, as stated in their letters to be furnished
pursuant to subsections (e) and (f) of Section 5 hereof.
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SECTION 4. PAYMENT OF EXPENSES.
The Company and the Bank jointly and severally agree to pay all
expenses incident to the performance of their obligations under this Agreement,
including but not limited to (i) the cost of obtaining all securities and bank
regulatory approvals, (ii) the printing and filing of the Registration
Statement as originally filed and of each amendment thereto, (iii) the
preparation, issuance and delivery of the certificates for the Securities to
the purchasers in the Offerings, (iv) the fees and disbursements of the
Company's, the MHC's and the Bank's counsel, accountants, conversion agent,
appraiser and other advisors, (v) the qualification of the Securities under
securities laws in accordance with the provisions of Section 3(f) hereof,
including filing fees and the fees and disbursements of counsel in connection
therewith and in connection with the preparation of the Blue Sky Survey, (vi)
the printing and delivery to the Agent of copies of the Registration Statement
as originally filed and of each amendment thereto and the printing and delivery
of the Prospectus and any amendments or supplements thereto to the purchasers
in the Offerings and the Agent, (vii) the printing and delivery to the Agent of
copies of a Blue Sky Survey, and (viii) the fees and expenses incurred in
connection with the listing of the Securities on the Nasdaq Stock Market. In
the event the Agent incurs any such fees and expenses on behalf of the Bank,
the MHC or the Company, the Bank will reimburse the Agent for such fees and
expenses whether or not the Conversion is consummated; provided, however, that
the Agent shall not incur any substantial expenses on behalf of the Bank, the
MHC or the Company pursuant to this Section without the prior approval of the
Bank or the Company.
The Company and the Bank jointly and severally agree to pay certain
expenses incident to the performance of the Agent's obligations under this
Agreement, including (i) the filing fees paid or incurred by the Agent in
connection with all filings with the National Association of Securities
Dealers, Inc., and (ii) all reasonable out of pocket expenses incurred by the
Agent relating to the Offerings, including, without limitation, advertising,
promotional, syndication and travel expenses and fees and expenses of the
Agent's counsel. All fees and expenses to which the Agent is entitled to
reimbursement under this paragraph of this Section 4 shall be due and payable
upon receipt by the Company or the Bank of a written accounting therefor
setting forth in reasonable detail the expenses incurred by the Agent.
SECTION 5. CONDITIONS OF AGENT'S OBLIGATIONS.
The Company, the MHC, the Bank and the Agent agree that the issuance
and the sale of Securities and all obligations of the Agent hereunder are
subject to the accuracy of the representations and warranties of the Company,
the MHC and the Bank herein contained as of the date hereof and the Closing
Time, to the accuracy of the statements of officers and directors of the
Company, the MHC and the Bank made pursuant to the provisions hereof, to the
performance by the Company the MHC and the Bank of their obligations hereunder,
and to the following further conditions:
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(a) No stop order suspending the effectiveness of the Registration
Statement shall have been issued under the 1933 Act or proceedings therefor
initiated or threatened by the Commission, no order suspending the Offerings or
authorization for final use of the Prospectus shall have been issued or
proceedings therefor initiated or threatened by the Superintendent or the FDIC
and no order suspending the sale of the Securities in any jurisdiction shall
have been issued.
(b) At Closing Time, the Agent shall have received:
(1) The favorable opinion, dated as of Closing Time, of
Elias, Matz, Xxxxxxx & Xxxxxxx L.L.P., counsel for the Company and the
Bank, in form and substance satisfactory to counsel for the Agent, to
the effect that:
(i) The Company has been duly incorporated and
is validly existing as a corporation in
good standing under the laws of the State
of Delaware.
(ii) The Company has full corporate power and
authority to own, lease and operate its
properties and to conduct its business as
described in the Registration Statement and
Prospectus and to enter into and perform
its obligations under this Agreement.
(iii) The Company is duly qualified as a foreign
corporation to transact business and is in
good standing in the State of New York, and
in each other jurisdiction in which such
qualification is required whether by reason
of the ownership or leasing of property or
the conduct of business, except where the
failure to be so qualified would not have a
material adverse effect upon the financial
condition, results of operation or business
of the Company, the Bank and the
Subsidiaries, taken as a whole.
(iv) Upon consummation of the Conversion, and
issuance of the Foundation Shares to the
Foundation immediately upon completion
thereof, the authorized, issued and
outstanding capital stock of the Company
will be within the range set forth in the
Prospectus under "Capitalization" and no
shares of Common Stock have been or will be
issued and remain outstanding prior to the
Closing Time.
(v) The Securities and the Foundation Shares
have been duly and validly authorized for
issuance and sale and, when issued and
delivered by the Company pursuant to the
Plan against payment of the consideration
calculated as set forth in the Plan, or
contributed by the Company pursuant to the
Plan in the case of the Foundation
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Shares, will be duly and validly issued,
fully paid and non-assessable.
(vi) The issuance of the Securities and the
Foundation Shares is not subject to
preemptive or other similar rights arising
by operation of law or, to the best of such
counsel's knowledge, otherwise.
(vii) The MHC is validly existing and is in good
standing under the laws of the State of New
York as a mutual holding company, with full
corporate power and authority to own, lease
and operate its properties and to conduct
its business as described in the
Registration Statement and Prospectus and
is duly qualified as a foreign corporation
in each jurisdiction in which such
qualification is required, except where the
failure to so qualify would not have a
material adverse effect upon the financial
condition, results of operations or
business of the MHC.
(viii) The Bank has been at all times since the
date hereof and prior to the Closing Time
duly organized, and is validly existing in
good standing under the laws of the State
of New York as a New York State chartered
savings bank of stock form, with full
corporate power and authority to own, lease
and operate its properties and to conduct
its business as described in the
Registration Statement and the Prospectus;
and the Bank is duly qualified as a foreign
corporation in each jurisdiction in which
such qualification is required, whether by
reason of the ownership or leasing of
property or the conduct of business except
where the failure to so qualify would not
have a material adverse effect upon the
financial condition or results of
operations or business of the Bank.
(ix) The deposit accounts of the Bank are insured
by the FDIC up to the applicable limits.
(x) Each Subsidiary has been duly incorporated
and is validly existing as a corporation in
good standing under the laws of the
jurisdiction of its incorporation, has full
corporate power and authority to own, lease
and operate its properties and to conduct
its business as described in the
Registration Statement and the Prospectus
and is duly qualified as a foreign
corporation to transact business and is in
good standing in each jurisdiction in which
such qualification is required, whether by
reason of the ownership or leasing of
property or the conduct of business, except
where the failure to so qualify
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would not have a material adverse effect
upon the financial condition, results of
operation or business of the Company, the
Bank and the Subsidiaries, taken as a
whole, the activities of the Subsidiaries
as described in the Prospectus are
permitted to subsidiaries of a savings
association holding company and of a New
York State chartered savings bank by the
rules, regulations, resolutions and
practices of the OTS and the
Superintendent, as the case may be; all of
the issued and outstanding capital stock of
each of the Subsidiaries has been duly
authorized and validly issued, is fully
paid and non-assessable and is owned by the
Bank free and clear of any security
interest, mortgage, pledge, lien,
encumbrance or claim.
(xi) The Foundation has been duly incorporated
and is validly existing as a non-stock
corporation in good standing under the laws
of the State of Delaware with corporate
power and authority to own, lease and
operate its properties and to conduct its
business as described in the Prospectus;
the Foundation is not a savings and loan
holding company within the meaning of 12
C.F.R. Section 574.2(q) as a result of the
issuance of shares of Common Stock to it in
accordance with the terms of the Plan and
in the amounts as described in the
Prospectus; no approvals are required to
establish the Foundation and to contribute
the shares of Common Stock thereto as
described in the Prospectus other than
those set forth in any written notice or
order of approval or non-objection of the
Conversion, Conversion Application or the
Holding Company Application copies of which
were provided to the Agent prior to the
Closing Time.
(xii) Upon consummation of the Conversion, all of
the issued and outstanding capital stock of
the Bank when issued and delivered pursuant
to the Plan against payment of
consideration calculated as set forth in
the Plan will be duly authorized and
validly issued and fully paid and
nonassessable, and all such capital stock
will be owned beneficially and of record by
the Company free and clear of any security
interest, mortgage, pledge, lien,
encumbrance, claim or equity.
(xiii) The OTS has approved the Holding Company
Application, the Superintendent has
approved the Conversion Application and the
FDIC has issued a letter of intent not to
object to the Conversion and no action is
pending, or to the best of such counsel's
knowledge, threatened respecting the
Holding Company
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Application or the Conversion Application
(including therewith the establishment of
the Foundation and the contribution of
shares of Common stock thereto) or the
acquisition by the Company of all of the
Bank's issued and outstanding capital
stock; the Holding Company Application
complies as to form in all material
respects with the applicable requirements
of the OTS, and the Conversion Application
complies as to form in all material
respects with the applicable requirements
of the Superintendent and the FDIC and
include all documents required to be filed
as exhibits thereto, excluding the
Prospectus and any related marketing
materials filed as a part of the Holding
Company Application or the Conversion
Application as to which no opinion need be
given; the Company is duly authorized to
become a savings and loan holding company
and is duly authorized to own all of the
issued and outstanding capital stock of the
Bank to be issued pursuant to the Plan.
(xiv) The execution and delivery of this
Agreement and the consummation of the
transactions contemplated hereby, including
the establishment of the Foundation and the
contribution thereto of the Foundation
Shares, (A) have been duly and validly
authorized by all necessary action on the
part of each of the Company, the MHC and
the Bank, and this Agreement constitutes
the legal, valid and binding agreement of
each of the Company, the MHC and the Bank,
enforceable in accordance with its terms,
except as rights to indemnity and
contribution hereunder may be limited under
applicable law (it being understood that
such counsel may avail itself of customary
exceptions concerning the effect of
bankruptcy, insolvency, and the
availability of equitable remedies), (B)
will not result in any violation of the
provisions of the certificate of
incorporation, organization certificate,
articles of incorporation or charter, as
the case may be, or by-laws of the Company,
the MHC, the Bank or any of its
Subsidiaries; and, (C) will not conflict
with or constitute a breach of, or default
under, and no event has occurred which,
with notice or lapse of time or both, would
constitute a default under, or result in
the creation or imposition of any lien,
charge or encumbrance upon any property or
assets of the Company, the MHC, the Bank
or the Subsidiaries pursuant to any
contract, indenture, mortgage, loan
agreement, note, lease or other instrument
to which the Company, the MHC, the Bank or
any of the Subsidiaries is a party or by
which any of them may be bound, or to which
any of the property or assets of the
Company, the MHC, the Bank or the
Subsidiaries is subject, that, individually
or in the aggregate, would have a material
adverse effect on the financial
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condition, results of operations or
business of the Company, the MHC, the Bank
and the Subsidiaries, taken as a whole.
(xv) The Prospectus has been duly authorized by
the Superintendent and the FDIC for final
use pursuant to the Conversion Regulations
and no action is pending, or to the best of
such counsel's knowledge, is threatened, by
the Superintendent or the FDIC to revoke
such authorization.
(xvi) The Registration Statement is effective
under the 1933 Act and no stop order
suspending the effectiveness of the
Registration Statement has been issued
under the 1933 Act or, to the best of such
counsel's knowledge, have proceedings
therefor been initiated or threatened by
the Commission.
(xvii) No further approval, authorization, consent
or other order of any public board or body
is required in connection with the
execution and delivery of this Agreement,
the issuance of the Securities and the
consummation of the Conversion, except as
may be required under the securities or
Blue Sky laws of various jurisdictions as
to which no opinion need be rendered.
(xviiii) At the time the Registration Statement
became effective, the Registration
Statement (other than the financial
statements the notes thereto, related
schedules and other financial, appraisal
and statistical data included therein, as
to which no opinion need be rendered)
complied as to form in all material
respects with the requirements of the 1933
Act and the 1933 Act Regulations and the
Conversion Regulations.
(xix) The Common Stock conforms to the
description thereof contained in the
Prospectus, and the form of certificate
used to evidence the Common Stock is in due
and proper form and complies with all
applicable statutory requirements.
(xx) There are no legal or governmental
proceedings pending or threatened against
or affecting the Company, the MHC, the Bank
any of the Subsidiaries, or the Foundation
which are required, individually or in the
aggregate, to be disclosed in the
Registration Statement and Prospectus,
other than those disclosed therein.
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(xxi) All pending legal or governmental
proceedings to which the Company, the MHC,
the Bank or any of the Subsidiaries is a
party or to which any of their property is
subject which are not described in the
Registration Statement, including ordinary
routine litigation incidental to the
business, are, considered in the aggregate,
not material.
(xxii) The information in the Prospectus under
"Risk Factors - Establishment of the
Charitable Foundation - Tax Consequences,"
"-Possible Payment of Financing Corporation
Bonds," "-Certain Anti-Takeover
Provisions," and "- Possible Adverse Income
Tax Consequences of the Distribution of
Subscription Rights," "Dividend Policy,"
"Business of the Bank - Legal Proceedings,"
"Federal and State Taxation," "Regulation,"
"The Conversion - Establishment of
Charitable Foundation," "- Effects of
Conversion," "-Liquidation Rights" and
"-Tax Aspects," "Restrictions on
Acquisition of the Company and the Bank,"
"Description of Capital Stock of the
Company" and "Description of Capital Stock
of the Bank" to the extent that it
constitutes matters of law, summaries of
legal matters, documents or proceedings, or
legal conclusions, has been reviewed by
them and is complete and accurate in all
material respects.
(xxiii) To the best of such counsel's knowledge,
there are no contracts, indentures,
mortgages, loan agreements, notes, leases
or other instruments required to be
described or referred to in the
Registration Statement or to be filed as
exhibits thereto other than those described
or referred to therein or filed as exhibits
thereto, and the descriptions thereof or
references thereto are correct.
(xxiv) The Plan has been duly authorized by the
Board of Trustees of the MHC and the Board
of Directors of the Company and the Board
of Directors of the Bank and the
Superintendent's and the FDIC's approvals
of the Plan remain in full force and
effect; the Bank's organization certificate
has been amended and restated, effective
upon consummation of the Conversion and the
filing of such amended and restated
organization certificate with the
Superintendent, to authorize the issuance
of permanent capital stock; to the best of
such counsel's knowledge, the Company, the
MHC and the Bank have conducted the
Conversion and the establishment and
funding of the Foundation in all material
respects in accordance with applicable
requirements of the Conversion Regulations,
the Plan and all other applicable
regulations, decisions
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and orders thereunder, including all
material applicable terms, conditions,
requirements and conditions precedent to
the Conversion imposed upon the Company or
the Bank by the Superintendent or the FDIC
and, no order has been issued by the
Superintendent or the FDIC to suspend the
Conversion or the Offerings and no action
for such purpose has been instituted or
threatened by the OTS; and, to the best of
such counsel's knowledge, no person has
sought to obtain review of the final action
of the Superintendent or the FDIC in
approving the Conversion Application (which
includes the Plan which provides for
establishment of the Foundation) or of the
OTS in approving the Holding Company
Application.
(xxv) To the best of such counsel's knowledge,
the Company, the MHC, the Bank and the
Subsidiaries have obtained all material
licenses, permits and other governmental
authorizations currently required for the
conduct of their respective businesses as
described in the Registration Statement and
Prospectus, and all such licenses, permits
and other governmental authorizations are
in full force and effect, and the Company,
the MHC, the Bank and the Subsidiaries are
in all material respects complying
therewith.
(xxvi) Neither the MHC, the Company, the Bank nor
any of the Subsidiaries is in violation of
its certificate of incorporation,
organization certificate, articles of
incorporation or charter, as the case may
be, or bylaws (and the Bank will not be in
violation of its organization certificate
and bylaws in stock form upon consummation
of the Conversion) or, to the best of such
counsel's knowledge, in default (nor has
any event occurred which, with notice or
lapse of time or both, would constitute a
default) in the performance or observance
of any obligation, agreement, covenant or
condition contained in any material
contract, indenture, mortgage, loan
agreement, note, lease or other instrument
to which the Company, the MHC, the Bank or
any of the Subsidiaries is a party or by
which the Company, the MHC, the Bank or any
of the Subsidiaries or any of their
property may be bound.
(xxvii) The Company is not required to be
registered as an investment company under
the Investment Company Act of 1940.
(2) The favorable opinion, dated as of Closing Time, of
Xxxxxxx, Xxxxxx & Xxxxxxxx, counsel for the Agent, with respect to the
matters set forth in Section 5(b)(1)(i),
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(iv), (v), (vi) (solely as to preemptive rights arising by operation
of law), (xvi) and (xvii) and such other matters as the Agent may
reasonably require.
(3) In giving their opinions required by subsections
(b)(l) and (b)(2), respectively, of this Section, Xxxxx, Matz,
Tiernan, and Xxxxxxx L.L.P. and Xxxxxxx, Xxxxxx & Xxxxxxxx shall each
additionally state that nothing has come to their attention that would
lead them to believe that the Registration Statement (except for the
appraisal, financial statements, notes thereto, related schedules and
other financial, statistical or appraisal data included therein, as to
which counsel need make no statement), at the time it became
effective, 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 or that the Prospectus
(except for the appraisal, financial statements and schedules and
other financial, statistical or appraisal data included therein, as to
which counsel need make no statement), at the time the Registration
Statement became effective or at Closing Time, included an untrue
statement of a material fact or omitted to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. In giving
their opinions Xxxxx, Matz, Tiernan, & Xxxxxxx L.L.P. and Xxxxxxx,
Xxxxxx & Xxxxxxxx may state that they have not independently verified
the information with respect to the Company and the Bank contained in
the Registration Statement, Conversion Application and the Prospectus.
In giving their opinions, Xxxxx, Matz, Tiernan, & Xxxxxxx L.L.P. and
Xxxxxxx, Xxxxxx & Xxxxxxxx may rely as to matters of fact on
certificates of officers and directors of the Company, the MHC and the
Bank and certificates of public officials, and as to certain matters
of New York law upon the opinion of _______________________________
and as to certain matters of Delaware law upon the opinion of
____________________________, which opinions shall be in form and
substance satisfactory to the Agent, and Xxxxxxx, Xxxxxx & Xxxxxxxx
may also rely on the opinion of Xxxxx, Matz, Tiernan, & Xxxxxxx L.L.P.
(c) At the Closing time referred to in Section 2, the Company, the
MHC and the Bank will have completed in all material respects
the conditions precedent to the Conversion in accordance with
the Plan, the applicable Conversion Regulations and all other
applicable laws, regulations, decisions and orders, including
all terms, conditions, requirements and provisions precedent
to the Conversion imposed upon the Company or the Bank by the
OTS, the Superintendent, the FDIC, or any other regulatory
authority other than those which the OTS, the Superintendent
or the FDIC permit to be completed after the Conversion.
(d) At Closing Time, there shall not have been, since the date
hereof or since the respective dates as of which information is given in the
Registration Statement and the Prospectus, any material adverse change in the
financial condition, results of operations or business of the Company, the MHC,
the Bank and the Subsidiaries, taken as a whole, whether or not arising in the
ordinary course of business, and the Agent shall have received a certificate of
the Chief Executive
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Officer of the Company, of the MHC and of the Bank, and the chief financial or
chief accounting officer of the Company, of the MHC and of the Bank, dated as
of Closing Time, to the effect that (i) there has been no such material adverse
change, (ii) there shall have been no material transaction entered into by the
Company, the MHC or the Bank from the latest date as of which the financial
condition of the Company, the MHC or the Bank is set forth in the Registration
Statement and the Prospectus other than transactions referred to or
contemplated therein and transactions in the ordinary cause of business, (iii)
neither the Company, the MHC nor the Bank has received from the Superintendent,
the FDIC or the OTS any direction (oral or written) to make any material change
in the method of conducting its business with which it has not complied (which
direction, if any, shall have been disclosed to the Agent) or which materially
and adversely would affect the business, financial condition or results of
operations of the Company, the MHC, the Bank and the Subsidiaries, taken as a
whole, (iv) the representations and warranties in Section 1 hereof are true and
correct with the same force and effect as though expressly made at and as of
the Closing Time, (v) the Company, the MHC and the Bank have complied with all
agreements and satisfied all conditions on their part to be performed or
satisfied at or prior to Closing Time, (vi) no stop order suspending the
effectiveness of the Registration Statement has been issued and no proceedings
for that purpose have been initiated or threatened by the Commission and (vii)
no order suspending the Offerings or the authorization for final use of the
Prospectus has been issued and no proceedings for that purpose have been
initiated or threatened by the Superintendent or the FDIC and no person has
sought to obtain regulatory or judicial review of the action of the
Superintendent or the FDIC in approving the Plan in accordance with the
Conversion Regulations nor has any person sought to obtain regulatory or
judicial review of the action of the OTS in approving the Holding Company
Application.
(e) At the time of the execution of this Agreement, the Agent
shall have received from Ernst & Young LLP a letter dated such date, in form
and substance satisfactory to the Agent, to the effect that (i) they are
independent public accountants with respect to the Company, the MHC, the Bank
and the Subsidiaries within the meaning of the Code of Ethics of the American
Institute of Certified Public Accountants, the 1933 Act and the 1933 Act
Regulations and the Conversion Regulations; (ii) it is their opinion that the
consolidated financial statements and supporting schedules included in the
Registration Statement and covered by their opinions therein comply as to form
in all material respects with the applicable accounting requirements of the
1933 Act and the 1933 Act Regulations and the Conversion Regulations; (iii)
based upon limited procedures as agreed upon by the Agent and Ernst & Young LLP
set forth in detail in such letter, nothing has come to their attention which
causes them to believe that (A) the unaudited financial statements and
supporting schedules of the Bank and the Subsidiaries included in the
Registration Statement do not comply as to form in all material respects with
the applicable accounting requirements of the 1933 Act, the 1933 Act
Regulations, and the Conversion Regulations or are not presented in conformity
with generally accepted accounting principles applied on a basis substantially
consistent with that of the audited financial statements included in the
Registration Statement and the Prospectus, (B) the unaudited amounts set forth
under "Selected Consolidated Financial Information and Other Data" and "Recent
Developments" in the Registration Statement and Prospectus do not agree with
the amounts set forth in unaudited consolidated financial statements as of and
for the dates and periods presented under such captions or such amounts were
not determined on a basis substantially
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consistent with that used in determining the corresponding amounts in the
audited financial statements included in the Registration Statement, (C) at a
specified date not more than five days prior to the date of this Agreement,
there has been any increase in the consolidated long term or short term debt of
the Bank and the Subsidiaries or any decrease in consolidated total assets, the
allowance for loan losses, total deposits or retained earnings of the Bank and
the Subsidiaries, in each case as compared with the amounts shown in the March
31, 1997 balance sheet included in the Registration Statement or, (D) during
the period from March 31, 1997 to a specified date not more than five days
prior to the date of this Agreement, there were any decreases, as compared with
the corresponding period in the preceding year, in total interest income, net
interest income, net interest income after provision for loan losses, income
before income tax expense or net income of the Bank and the Subsidiaries,
except in all instances for increases or decreases which the Registration
Statement and the Prospectus disclose have occurred or may occur; and (iv) in
addition to the examination referred to in their opinions and the limited
procedures referred to in clause (iii) above, they have carried out certain
specified procedures, not constituting an audit, with respect to certain
amounts, percentages and financial information which are included in the
Registration Statement and Prospectus and which are specified by the Agent, and
have found such amounts, percentages and financial information to be in
agreement with the relevant accounting, financial and other records of the
Company, the MHC, the Bank and the Subsidiaries identified in such letter.
(f) At Closing Time, the Agent shall have received from Ernst &
Young LLP a letter, dated as of Closing Time, to the effect that they reaffirm
the statements made in the letter furnished pursuant to subsection (e) of this
Section, except that the specified date referred to shall be a date not more
than five days prior to Closing Time.
(g) At Closing Time, the Securities shall have been approved for
listing on the Nasdaq Stock Market upon notice of issuance.
(h) At Closing Time, the Agent shall have received a letter from
RP Financial, Inc., dated as of the Closing Time, confirming its appraisal.
(i) At Closing Time, counsel for the Agent shall have been
furnished with such documents and opinions as they may require for the purpose
of enabling them to pass upon the issuance and sale of the Securities and the
Foundation Shares as herein contemplated and related proceedings, or in order
to evidence the accuracy of any of the representations or warranties, or the
fulfillment of any of the conditions, herein contained; and all proceedings
taken by the Company in connection with the issuance and sale of the Securities
and Foundation Shares as herein contemplated shall be satisfactory in form and
substance to the Agent and counsel for the Agent.
(j) At any time prior to Closing Time, (i) there shall not have
occurred any material adverse change in the financial markets in the United
States or elsewhere or any outbreak of hostilities or escalation thereof or
other calamity or crisis the effect of which, in the judgment of the Agent, are
so material and adverse as to make it impracticable to market the Securities or
to enforce contracts, including subscriptions or orders, for the sale of the
Securities, and (ii) trading generally
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on either the American Stock Exchange or the New York Stock Exchange shall not
have been suspended, and minimum or maximum prices for trading shall not have
been fixed, or maximum ranges for prices for securities have been required, by
either of said Exchanges or by order of the Commission or any other
governmental authority, and a banking moratorium shall not have been declared
by either Federal or New York authorities.
SECTION 6. INDEMNIFICATION.
(a) The Company and the Bank, jointly and severally, agree to
indemnify and hold harmless the Agent, each person, if any, who controls the
Agent, within the meaning of Section 15 of the 1933 Act or Section 20 of the
1934 Act, and its respective partners, directors, officers, employees and
agents as follows:
(i) from and against any and all loss, liability, claim,
damage and expense whatsoever, as incurred, related to or arising out
of the Conversion (including establishment of the Foundation and the
contribution of the Foundation Shares thereto by the Company) or any
action taken by the Agent where acting as agent of the Company or the
Bank or otherwise as described in Section 2 hereof;
(ii) from and against any and all loss, liability, claim,
damage and expense whatsoever, as incurred, based upon or arising out
of any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement (or any amendment thereto), or
the omission or alleged omission therefrom of a material fact required
to be stated therein or necessary to make the statements therein not
misleading or arising out of any untrue statement or alleged untrue
statement of a material fact contained in the Proxy Statement or
Prospectus (or any amendment or supplement thereto) or the omission or
alleged omission therefrom of a material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading;
(iii) from and against any and all loss, liability, claim,
damage and expense whatsoever, as incurred, to the extent of the
aggregate amount paid in settlement of any litigation, or any
investigation or proceeding by any governmental agency or body,
commenced or threatened, or of any claim whatsoever described in
clauses (i) or (ii) above, if such settlement is effected with the
written consent of the Company or the Bank, which consent shall not be
unreasonably withheld; and
(iv) from and against any and all expense whatsoever, as
incurred (including, subject to Section 6(c) hereof, the fees and
disbursements of counsel chosen by the Agent), reasonably incurred in
investigating, preparing for or defending against any litigation, or
any investigation, proceeding or inquiry by any governmental agency or
body, commenced or threatened, or any claim pending or threatened
whatsoever described in clauses (i) or (ii) above, to the extent that
any such expense is not paid under (i), (ii) or (iii) above;
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provided, however, that the indemnification provided for in this paragraph (a)
shall not apply to any loss, liability, claim, damage or expense to the extent
arising out of any untrue statement or alleged untrue statement of a material
fact contained in the Prospectus (or any amendment or supplement thereto) or
the omission or alleged omission therefrom of a material fact necessary in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading which was made in reliance upon and in
conformity with the Agent Information. Notwithstanding the foregoing, the
indemnification provided for in this paragraph (a) shall not apply to the Bank
to the extent that such indemnification by the Bank would constitute an
impermissible covered transaction under Section 23A of the Federal Reserve Act.
(b) The Agent agrees to indemnify and hold harmless the Company,
the Bank, their directors and trustees, each of their officers who signed the
Registration Statement, and each person, if any, who controls the Company
within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act
against any and all loss, liability, claim, damage and expense described in the
indemnity contained in subsection (a) of this Section, as incurred, but only
with respect to untrue statements or omissions, or alleged untrue statements or
omissions, of a material fact made in the Registration Statement (or any
amendment thereto) or the Prospectus (or any amendment or supplement thereto)
in reliance upon and in conformity with the Agent Information.
(c) Each indemnified party shall give notice as promptly as
reasonably practicable to each indemnifying party of any action commenced
against it in respect of which indemnity may be sought hereunder, but failure
to so notify an indemnifying party shall not relieve such indemnifying party
from any liability which it may have otherwise than on account of this
indemnity agreement. An indemnifying party may participate at its own expense
in the defense of any such action. In no event shall the indemnifying parties
be liable for fees and expenses of more than one counsel (in addition to no
more than one local counsel in each separate jurisdiction in which any action
or proceeding is commenced) separate from their own counsel for all indemnified
parties in connection with any one action or separate but similar or related
actions in the same jurisdiction arising out of the same general allegations or
circumstances.
(d) The Company and the Bank also agree that the Agent shall not
have any liability (whether direct or indirect, in contract or tort or
otherwise) to the Bank, the Company, its security holders or the Bank's or the
Company's creditors relating to or arising out of the engagement of the Agent
pursuant to, or the performance by the Agent of the services contemplated by,
this Agreement, except to the extent that any loss, claim, damage or liability
is found in a final judgment by a court of competent jurisdiction to have
resulted primarily from the Agent's bad faith, willful misconduct or gross
negligence.
(e) In addition to, and without limiting, the provisions of
Section (6)(a)(iv) hereof, in the event that any Agent, any person, if any, who
controls the Agent within the meaning of Section 15 of the 1933 Act or Section
20 of the 1934 Act or any of its partners, directors, officers, employees or
agents is requested or required to appear as a witness or otherwise gives
testimony in any action, proceeding, investigation or inquiry brought by or on
behalf of or against the Company, the MHC,
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the Bank, the Agent or any of its respective affiliates or any participant in
the transactions contemplated hereby in which the Agent or such person or agent
is not named as a defendant or subject of an investigation or inquiry, the
Company and the Bank jointly and severally agree to reimburse the Agent for all
reasonable and necessary out-of-pocket expenses incurred by it in connection
with preparing or appearing as a witness or otherwise giving testimony and to
compensate the Agent in an amount to be mutually agreed upon.
SECTION 7. CONTRIBUTION.
In order to provide for just and equitable contribution in
circumstances in which the indemnity agreement provided for in Section 6 hereof
is for any reason held to be unenforceable by the indemnified parties although
applicable in accordance with its terms, the Company, the Bank and the Agent
shall contribute to the aggregate losses, liabilities, claims, damages and
expenses of the nature contemplated by said indemnity agreement incurred by the
Company or the Bank and the Agent, as incurred, in such proportions (i) that
the Agent is responsible for that portion represented by the percentage that
the maximum aggregate marketing fees appearing on the cover page of the
Prospectus bears to the maximum aggregate gross proceeds appearing thereon and
the Company, the MHC and the Bank are jointly and severally responsible for the
balance or (ii) if, but only if, the allocation provided for in clause (i) is
for any reason held unenforceable, in such proportion as is appropriate to
reflect not only the relative benefits to the Company and the Bank on the one
hand and the Agent on the other, as reflected in clause (i), but also the
relative fault of the Company and the Bank on the one hand and the Agent on the
other, as well as any other relevant equitable considerations; provided,
however, that no person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the 0000 Xxx) shall be entitled to contribution
from any person who was not guilty of such fraudulent misrepresentation. For
purposes of this Section, each person, if any, who controls the Agent within
the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall
have the same rights to contribution as the Agent, and each director of the
Company, each trustee of the Bank, each officer of the Company who signed the
Registration Statement, and each person, if any, who controls the Company or
the Bank within the meaning of Section 15 of the 1933 Act or Section 20 of the
1934 Act shall have the same rights to contribution as the Company and the
Bank. Notwithstanding anything to the contrary set forth herein, to the extent
permitted by applicable law, in no event shall the Agent be required to
contribute an aggregate amount in excess of the aggregate marketing fees to
which the Agent is entitled and actually paid pursuant to this Agreement.
SECTION 8. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE
DELIVERY.
All representations, warranties and agreements contained in this
Agreement, or contained in certificates of officers of the Company, the MHC or
the Bank submitted pursuant hereto, shall remain operative and in full force
and effect, regardless of any investigation made by or on behalf
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of any Agent or controlling person, or by or on behalf of the Company, and
shall survive delivery of the Securities.
SECTION 9. TERMINATION OF AGREEMENT.
(a) The Agent may terminate this Agreement, by notice to the
Company, at any time at or prior to Closing Time (i) if there has been, since
the date of this Agreement or since the respective dates as of which
information is given in the Registration Statement, any material adverse change
in the financial condition, results of operations or business of the Company,
the MHC or the Bank, or the Company the MHC, the Bank and the Subsidiaries
taken as a whole, whether or not arising in the ordinary course of business, or
(ii) if there has occurred any material adverse change in the financial markets
in the United States or elsewhere or any outbreak of hostilities or escalation
thereof or other calamity or crisis the effect of which, in the judgment of the
Agent, are so material and adverse as to make it impracticable to market the
Securities or to enforce contracts, including subscriptions or orders, for the
sale of the Securities, (iii) if trading generally on the Nasdaq Stock Market,
the American Stock Exchange or the New York Stock Exchange has been suspended,
or minimum or maximum prices for trading have been fixed, or maximum ranges for
prices for securities have been required, by such market or either of said
Exchanges or by order of the Commission or any other governmental authority, or
if a banking moratorium has been declared by either Federal or New York
authorities, (iv) if any condition specified in Section 5 shall not have been
fulfilled when and as required to be fulfilled; (v) if there shall have been
such material adverse change in the condition or prospects of the Company or
the Bank or the prospective market for the Company's securities as in the
Agent's good faith opinion would make it inadvisable to proceed with the
offering, sale or delivery of the Securities; (vi) if, in the Agent's good
faith opinion, the price for the Securities established by RP Financial, Inc.
is not reasonable or equitable under then prevailing market conditions, or
(vii) if the Conversion is not consummated on or prior to
_______________________.
(b) If this Agreement is terminated pursuant to this Section, such
termination shall be without liability of any party to any other party except
as provided in Section 4 hereof relating to the reimbursement of expenses and
except that the provisions of Sections 6 and 7 hereof shall survive any
termination of this Agreement.
SECTION 10. NOTICES.
All notices and other communications hereunder shall be in writing and
shall be deemed to have been duly given if mailed or transmitted by any
standard form of telecommunication. Notices to the Agent shall be directed to
the Agent at Two World Trade Center, 104th Floor, New York, New York 10048,
attention of Xxxxxxxxx X. Xxxxxx, Principal, with a copy to Xxxxxxx X.
Xxxxxxxx, Esq., Xxxxxxx, Xxxxxx & Xxxxxxxx, 0000 Xxxxxxxxx Xxxxxx, X.X.,
Xxxxxxxxxx, X.X. 00000; notices to the Company and the Bank shall be directed
to either of them at Independence Savings Bank, 195
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00
Xxxxxxxx Xxxxxx, 00xx Xxxxx, Xxxxxxxx, Xxx Xxxx 00000, attention of Xxxxxxx X.
Xxxx, President, with a copy to Xxxxxxx X. Xxxxx, Esq., Xxxxx, Xxxx Xxxxxxx &
Xxxxxxx L.L.P., 000 00xx Xxxxxx, X.X., 00xx Xxxxx, Xxxxxxxxxx, X.X. 00000.
SECTION 11. PARTIES.
This Agreement shall inure to the benefit of and be binding upon the
Agent, the Company, the MHC and the Bank and their respective successors.
Nothing expressed or mentioned in this Agreement is intended or shall be
construed to give any person, firm or corporation, other than the Agent, the
Company, the MHC. and the Bank and their respective successors and the
controlling persons and officers and directors referred to in Sections 6 and 7
and their heirs and legal representatives, any legal or equitable right, remedy
or claim under or in respect of this Agreement or any provision herein or
therein contained. This Agreement and all conditions and provisions hereof and
thereof are intended to be for the sole and exclusive benefit of the Agent, the
Company, the MHC and the Bank and their respective successors, and said
controlling persons and officers and directors and their heirs and legal
representatives, and for the benefit of no other person, firm or corporation.
SECTION 12. ENTIRE AGREEMENT; AMENDMENT.
This Agreement represents the entire understanding of the parties
hereto with reference to the transactions contemplated hereby and supersedes
any and all other oral or written agreements heretofore made, except for
engagement letter dated March 4, 1997, by and between the Agent and the Company
and the Bank, relating to the Agent's providing conversion agent services to
the Company and the Bank in connection with the Conversion, which engagement
letter shall be governed solely by its terms. No waiver, amendment or other
modification of this Agreement shall be effective unless in writing and signed
by the parties hereto.
SECTION 13. GOVERNING LAW AND TIME.
This Agreement shall be governed by and construed in accordance with
the laws of the State of New York applicable to agreements made and to be
performed in said State without regard to the conflicts of laws provisions
thereof. Specified times of day refer to Eastern time.
SECTION 14. SEVERABILITY.
Any term or provision of this Agreement which is invalid or
unenforceable in any jurisdiction shall, as to that jurisdiction, be
ineffective to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable the remaining terms and provisions of this
Agreement or affecting
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the validity or enforceability of any of the terms or provisions of this
Agreement in any other jurisdiction. If any provision of this Agreement is so
broad as to be unenforceable, the provision shall be interpreted to be only so
broad as is enforceable.
SECTION 15. HEADINGS.
Sections headings are not to be considered part of this Agreement, are
for convenience and reference only and are not to be deemed to be full or
accurate descriptions of the contents of any paragraph or subparagraph.
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If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof,
whereupon this instrument, along with all counterparts, will become a binding
agreement between the Agent, the Company, the MHC and the Bank in accordance
with its terms.
Very truly yours,
INDEPENDENCE COMMUNITY BANK CORP.
--------------------------------
By: Xxxxxxx X. Xxxx
Title: President
INDEPENDENCE COMMUNITY BANK CORP
(Mutual Holding Company)
--------------------------------
By: Xxxxxxx X. Xxxx
Title: President
CONFIRMED AND ACCEPTED, INDEPENDENCE SAVINGS BANK
as of the date first above written:
Sandler X'Xxxxx & Partners, L.P.
By: Sandler X'Xxxxx & Partners Corp., --------------------------------
the sole general partner By: Xxxxxxx X. Xxxx
Title: Chairman of the Board,
President and Chief
Executive Officer
-------------------------------
By: Xxxxxxxxx X. Xxxxxx
Vice President
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