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EXHIBIT 10.6
FIN PRO
00 Xxxxxx Xxxxxx
POB 323
Liberty Corner, NJ 07938
Xxxx Savings Bank
Agreement to provide Appraisal and Business Plan Services
SECTION 1: SERVICES TO BE RENDERED
APPRAISAL
As part of the Conversion and Stock Offering services, the following major tasks
will be included:
- conduct financial due diligence, including on-site interviews of senior
management and reviews of financial and other records;
- gather an understanding of the Bank's financial condition, profitability,
risk characteristics, operations and external factors that might
influence or impact the Bank;
- prepare a detailed written valuation report of the Bank and the Company,
that is consistent with applicable regulatory guidelines and standard
valuation practices;
- prepare and deliver an opinion, in form and substance acceptable to legal
and tax counsel of the Bank, to the effect that the subscription rights
granted to eligible account holders, the applicable stock benefit plans
and others in connection with the mutual holding company reorganization
and minority stock offering, have no value.
The valuation report will:
- include an in-depth analysis of the operating results and financial
condition of the Bank;
- assess the interest rate risk, credit risk and liquidity risk;
- describe the business strategies of the Bank and the Company, the market
area, competition and potential for the future;
- include a detailed peer analysis of publicly traded savings institutions
for use in determining appropriate valuation adjustments based upon
multiple factors;
- include a midpoint pro forma valuation along with a range of value around
the midpoint value;
- comply, in form and substance to all applicable requirements of
regulatory authorities for purposes of its use to establish the estimated
pro forma market value of the common stock of the Company following the
Conversion and Stock Offering.
The valuation report may be periodically updated throughout the Conversion
process and will be updated at the time of the closing of the Stock Offering.
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FinPro will perform such other services as are necessary or required in
connection with the regulatory review of the appraisal and will respond to the
regulatory comments, if any, regarding the valuation appraisal and any
subsequent updates.
BUSINESS PLAN
In connection with the preparation of the business plan and any other strategy
planning services, the following major tasks will be included:
- compile a historical trend analysis utilizing the past five year ends of
Regulatory Reports;
- perform detailed peer analysis;
- assess competitive situation;
- analyze the Bank markets and customers from a demographic standpoint;
- conduct branch market tour and identify competitive positioning,
branching opportunities and market threats;
- assess the regulatory, social, political and economic environment;
- document the internal situation assessment;
- analyze the current ALM position;
- analyze the CRA position;
- identify and document strengths and weaknesses;
- document the Bank's mission statement;
- document the objectives and goals;
- document strategies;
- meet with the Regional Office of the FDIC to review the business plan
prior to filing holding company applications;
- compile five year projections of performance;
- prepare assessment of strategic alternatives;
- conduct one or two planning retreats with the Board and Management to
review strategies;
- map the Bank's general ledger to FinPro's planning model and to the
Regulatory Reports;
- assess the Bank from a capital markets perspective including comparison
to national, regional, state and similar size organizations;
- prepare a written business plan in form and substance satisfactory to all
applicable regulatory authorities for purposes of submission and
dissemination in connection with the application to form a holding
company, offering prospectus and other documents concerning the holding
company formation and stock offering.
NO OTHER APPRAISAL/PLANNING FIRM PROVIDES THE QUANTITY AND QUALITY OF THE
PLANNING SERVICES FINPRO PROVIDES AS PART OF IT STANDARD PROPOSALS. WE URGE YOU
TO TALK TO OUR CLIENTS ABOUT THE EXTRA ADVANTAGE THAT FINPRO HAS AFFORDED THEM.
CONFIDENTIAL
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SECTION 2: INFORMATION REQUIREMENTS OF THE BANK
To accomplish the tasks set forth in Section 1 of this proposal, the following
information and work effort is expected of the Bank:
- provide FinPro with all financial and other information, whether or not
publicly available, necessary to familiarize FinPro with the business and
operations of the Bank;
- allow FinPro the opportunity, from time to time, to discuss the
operations of the Bank with Bank personnel;
- promptly advise FinPro of any material or contemplated material
transactions that may have an effect on the day-to-day operations of the
Bank;
- provide FinPro with all support schedules required to compile Regulatory,
Board and Management reports;
- provide FinPro with offering circular, prospectus and all other materials
relevant to the appraisal function for the Conversion;
- have system download capability;
- promptly review all work products of FinPro and provide necessary
sign-offs on each work product so that FinPro can move on to the next
phase;
- provide FinPro with office space to perform its daily tasks. The office
space requirements consists of a table with at least two chairs along
with access to electrical outlets for FinPro's computers.
SECTION 3: PROJECT DELIVERABLES
The following is a list of deliverables that will result from FinPro's effort:
1. Pro Forma Market Valuation of the Company and the Bank
2. Mapping of the Bank's general ledger to FinPro's five year cash flow
projection model
3. Business Plan
SECTION 4: TERM OF THE AGREEMENT AND STAFFING
It is anticipated that it will take approximately six months of elapsed time to
complete the tasks outlined in this proposal. During this time, FinPro will be
on-site at the Bank's facilities on a regular basis, during normal business
hours.
FinPro will assign Xxxxxx X. Xxxxx and Xxxxxxx X. Xxxxxxx to this engagement.
Although other FinPro staff may perform some back office analytics, Don and Xxx
will be the firm's point men on this engagement and will be active in all
aspects of this engagement.
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SECTION 5: FEES AND EXPENSES
FinPro's fees for providing the services outlined in this Agreement will be:
- $18,000 for the appraisal.
- $15,500 for the business plan.
This fee is payable according to the following schedule:
- prior to starting, a retainer of $4,000; plus
- upon the submission of the business plan to the regulators, a
non-refundable fee of $11,500; plus
- upon submission of the appraisal to the regulators, a
non-refundable fee of $9,000; plus
- upon completion of the Stock Offering, a non-refundable fee equal
to the remainder, unless only the plan is selected in which case
the remainder would be due upon regulatory approval of the
business plan.
In addition to any fees that may be payable to FinPro hereunder, the Bank hereby
agrees to reimburse FinPro for all of FinPro's travel and other out-of-pocket
expenses incurred in connection with FinPro's engagement. Such out-of-pocket
expenses will consist of travel to and from the Bank's facilities from FinPro's
offices, food and lodging when traveling, normal delivery charges such as
Federal Express, and costs associated with the actual Plan and Valuation
documents such as copying. It is FinPro policy to provide you with an itemized
accounting of the out-of-pocket expenditures so that you can control them.
In the event that the Bank shall, for any reason, discontinue the proposed
Conversion prior to delivery of the completed documents set forth above, the
Bank agrees to compensate FinPro according to FinPro's standard billing rates
for consulting services based on accumulated time and expenses, not to exceed
the respective fee caps noted above. FinPro's standard hourly rates are as
follows:
- Director Level and Above $250
- Staff Consultant Level $150
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If during the course of the proposed transaction, unforeseen events occur so as
to materially change the nature or the work content of the services described in
this contract, the terms of said contract shall be subject to renegotiation by
the Bank and FinPro. Such unforeseen events shall include, but not be limited
to, major changes in the conversion regulations, appraisal guidelines or
processing procedures as they relate to conversion appraisals, major changes in
management or procedures, operating policies or philosophies, excessive delays
or suspension of processing of conversion applications by the regulators, and
stale financial numbers such that completion of the conversion transaction
requires the preparation by FinPro of a new or updated appraisal.
FinPro agrees to execute a suitable confidentiality agreement with the Bank. The
Bank acknowledges that all opinions, valuations and advice (written or oral)
given by FinPro to the Bank in connection with FinPro's engagement are intended
solely for the benefit and use of the Bank (and it's directors, management, and
attorneys) in connection with the matters contemplated hereby, and the Bank
agrees that no such opinion, valuation, or advice shall be used for any other
purpose, except with respect to the opinion and valuation which may be used for
the proper corporate purposes of the client, or reproduced, or disseminated,
quoted or referred to at any time, in any manner or for any purpose, nor shall
any public references to FinPro be made by the Bank (or such persons), without
the prior written consent of FinPro, which consent shall not be unreasonably
withheld.
SECTION 6: REPRESENTATIONS AND WARRANTIES
FinPro, the Bank and the Company agree to the following:
1.) The Bank agrees to make available or to supply to FinPro the information set
forth in Section 2 of this Agreement.
2.) The Bank hereby represents and warrants to FinPro that any information
provided to FinPro does not and will not, to the best of the Bank's knowledge,
at the times it is provided to FinPro, contain any untrue statement of a
material fact or fail to state a material fact necessary to make the statements
therein not false or misleading in light of the circumstances under which they
were made.
3.) (a) The Bank agrees that it will indemnify and hold harmless FinPro, its
directors, officers, agents and employees of FinPro (collectively referred to in
this Section 6 as "FinPro") or its successors who act for or on behalf of FinPro
in connection with the services called for under this agreement (hereinafter
referred to as the "Agreement"), from and against any and all losses, claims,
damages and liabilities (including, but not limited to, all losses and expenses
in connection with claims under the federal securities law) arising out of or in
any way related to the services provided by FinPro under this Agreement, except
to the extent arising out of or attributable to the negligence or willful
misconduct of FinPro, its directors, officers, agents or employees.
(b) FinPro shall give written notice to the Bank of such claim for
indemnification or facts within thirty days of the assertion of any claim or
discovery of material facts upon which FinPro intends to base a claim for
indemnification hereunder. In the event the Bank elects,
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within seven days of the receipt of the original notice thereof, to contest such
claim by written notice to FinPro, FinPro will be entitled to be paid any
amounts payable by the Bank hereunder, together with interest on such costs from
the date incurred at the rate of eight percent per annum within five days after
a final determination is made either in writing by the Bank or by a final
judgment of a court of competent jurisdiction that indemnification hereunder
should be made. If the Bank does not elect to challenge the claim for
indemnification, FinPro shall be paid promptly and in any event within thirty
days after receipt by the Bank of the notice of the claim.
(c) The Bank shall pay for or reimburse the reasonable expenses, including
attorneys' fees, incurred by FinPro in connection with the contest of any claim
subject to indemnification hereunder in advance of the final determination of
any proceeding within thirty days of the receipt of such request if FinPro
furnishes the Bank:
1. a written statement of FinPro's good faith belief that it is
entitled to indemnification hereunder; and
2. a written undertaking by FinPro to repay the advance if it is
ultimately determined in a final adjudication of such proceeding
that FinPro is not entitled to such indemnification.
(d) In the event that the Bank elects to contest the claim, (i) FinPro will
cooperate in Good Faith with the contest, (ii) FinPro will provide the Bank with
an irrevocable power-of-attorney permitting the Bank to pursue the claim in the
name of FinPro, and (iii) FinPro will be prohibited from settling or
compromising the claim without written consent of the Bank.
(e) In the event the Bank does not pay any indemnified loss or make advance
reimbursements of expenses in accordance with the terms of this Agreement,
FinPro shall have all remedies available at law or in equity to enforce such
obligation.
This Agreement constitutes the entire understanding of the Bank and FinPro
concerning the subject matter addressed herein, and shall be governed and
construed in accordance with the laws of the State of New York. This Agreement
may not be modified, supplemented or amended except by written agreement
executed by both parties.
The Bank and FinPro are not affiliated, and neither the Bank nor FinPro has an
economic interest in, or is held in common with, the other and has not derived a
significant portion of its gross revenues, receipts or net income for any period
from transactions with the other.
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Please confirm that the foregoing is in accordance with your understanding and
agreement with FinPro by signing and returning to FinPro the duplicate of the
letter enclosed herewith.
Sincerely:
FinPro, Inc.
By:
/s/ Xxxxxx X. Xxxxx /s/ Xxxxxx X. Xxxxxxx, Xx.
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Xxxxxx X. Xxxxx Xxxxxx X. Xxxxxxx, Xx.
President President and CEO
9/9/98 9/16/98
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Date Date
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