EXHIBIT 1.2
BROOKLINE BANCORP, INC.
(a Delaware-chartered Stock Corporation)
Up to 29,325,000 Shares
(Subject to Increase Up to 33,723,750 Shares)
COMMON STOCK ($.01 Par Value)
Subscription Price $10.00 Per Share
AGENCY AGREEMENT
__________, 2002
Xxxx, Xxxx & Co., LLC
000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000-0000
Ladies and Gentlemen:
Brookline Bancorp, Inc., a federally chartered stock corporation (the
"Mid-Tier Holding Company"), Brookline Bancorp, Inc., a newly formed
Delaware-chartered stock form corporation organized to be the successor of the
Mid-Tier Holding Company (the "Holding Company"), Brookline Bancorp, MHC, a
federally chartered mutual holding company which owns 57.6% of the common stock
of the Mid-Tier Holding Company (the "MHC"), and Brookline Savings Bank, an
federally chartered savings bank (together with its subsidiaries, the "Bank")
whose common stock is owned in its entirety by the Mid-Tier Holding Company
(collectively, the "Brookline Parties") hereby confirm, jointly and severally,
their agreement with Xxxx, Xxxx & Co., LLC (the "Agent"), as follows:
SECTION 1. THE OFFERING. The MHC, in accordance with the Plan of Conversion
and Reorganization adopted April 4, 2002 (the "Plan"), intends to convert from
mutual to stock form (the "Conversion"). In connection with the Conversion, the
Holding Company will offer stock on a priority basis to (i) Eligible Account
Holders; (ii) Employee Plans of the Holding Company; (iii) Supplemental Eligible
Account Holders; and (iv) Other Members (all capitalized terms used in this
Agreement and not defined in this Agreement shall have the meanings set forth in
the Plan). Pursuant to the Plan, the Holding Company is offering a minimum of
21,675,000 and a maximum of 29,325,000 shares of common stock, par value $.01
per share (the "Common Stock") (subject to an increase up to 33,723,750 shares),
in the Subscription Offering, and, if necessary, (i) the Community Offering
and/or (ii) Syndicated Community Offering.
Pursuant to the Plan, the Holding Company will offer and sell shares of its
Common Stock (the "Shares") in the Subscription Offering, Community Offering,
and/or Syndicated Community Offering (the "Offerings") and issue shares of the
Holding Company to existing
public shareholders of the Mid-Tier Holding Company in exchange for their
existing shares of the Mid-Tier Holding Company (the "Exchange") so that, upon
completion of the Offerings, 100% of the outstanding Common Stock of the Holding
Company will be publicly held. The Holding Company will sell the Shares in the
Offerings at $10.00 per share (the "Purchase Price"). If the number of Shares is
increased or decreased in accordance with the Plan, the term "Shares" shall mean
such greater or lesser number, where applicable.
Pursuant to the Plan, in the Subscription Offering, the Holding Company
will offer the Shares, subject to the allocation procedures and purchase
limitations set forth in the Plan, in descending order of priority to: (1)
Eligible Account Holders; (2) Employee Plans of the Holding Company or the Bank;
(3) Supplemental Eligible Account Holders; and (4) Other Members. The Holding
Company may offer Shares, if any, remaining after the Subscription Offering, in
the Community Offering on a priority basis to the Mid-Tier Holding Company's
public stockholders at the Voting Record Date, and then to the natural persons
residing within the Massachusetts counties of Middlesex, Norfolk and Suffolk,
and then to the general public. In the event a Community Offering is held, it
may be held at any time during or immediately after the Subscription Offering.
Depending on market conditions, Shares available for sale but not subscribed for
in the Subscription Offering or purchased in the Community Offering may be
offered in the Syndicated Community Offering to the general public on a best
efforts basis, as described in subsection 4(b) below.
The Holding Company has filed with the U.S. Securities and Exchange
Commission (the "Commission") Registration Statement on Form S-1 (File No.
333-_____) in order to register the Shares under the Securities Act of 1933, as
amended (the "1933 Act"), and has filed such amendments thereto as have been
required to the date hereof (the "Registration Statement"). The prospectus, as
amended, included in the Registration Statement at the time it initially became
effective is hereinafter called the "Prospectus," except that if any prospectus
is filed by the Holding Company pursuant to Rule 424(b) or (c) of the
regulations of the Commission under the 1933 Act differing from the prospectus
included in the Registration Statement at the time it initially becomes
effective, the term "Prospectus" shall refer to the prospectus filed pursuant to
Rule 424(b) or (c) from and after the time said prospectus is filed with the
Commission and shall include any supplements and amendments thereto from and
after their dates of effectiveness or use, respectively.
In connection with the Conversion, the MHC and the Mid-Tier Holding Company
each filed with the Office of Thrift Supervision (the "OTS") an application for
conversion to a stock company (the "Conversion Application") and amendments
thereto as required by the OTS. The Holding Company has also filed with the OTS
its application on Form H-(e)1-S (the "Holding Company Application") to become a
unitary savings and loan holding company under the Home Owners' Loan Act of
1933, as amended, and the regulations promulgated thereunder (the "HOLA").
Collectively, the Conversion Application and the Holding Company Application may
also be termed the "Applications."
SECTION 2. APPOINTMENT OF AGENT. Subject to the terms and conditions of
this Agreement, the Brookline Parties hereby appoint the Agent to consult with,
advise and assist the Brookline Parties with the solicitation of subscriptions
and purchase orders for the Shares in connection with the sale of the Shares in
the Offerings.
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On the basis of the representations and warranties of the Brookline Parties
contained in, and subject to the terms and conditions of, this Agreement, the
Agent accepts such appointment and agrees to use its best efforts to assist the
Brookline Parties with the solicitation of subscriptions and purchase orders for
the shares and agrees to consult with and advise the Brookline Parties as to the
matters set forth in Section 3 of the letter agreement (the "Letter Agreement"),
dated March 29, 2002, between the MHC, the Mid-Tier Holding Company and Agent (a
copy of which is attached hereto as EXHIBIT A). It is acknowledged by the
Brookline Parties that the Agent shall not be obligated to purchase any Shares
and shall not be obligated to take any action which is inconsistent with any
applicable law, regulation, decision or order. Except as set forth in Section 13
hereof, the appointment of the Agent to provide services hereunder shall
terminate upon consummation of the Offerings.
If requested by the MHC or the Mid-Tier Holding Company, Agent may also
assemble and manage a selling group of broker-dealers that are members of the
National Association of Securities Dealers, Inc. ("NASD") to participate in the
solicitation on a "best efforts" basis of purchase orders for the Shares (the
"Assisting Brokers") under a selected dealer agreement ("Selected Dealer
Agreement"), the form of which is set forth as EXHIBIT B to this Agreement. The
Agent will distribute the Shares among dealers in the Syndicated Community
Offering in a fashion which best meets the distribution objectives of the Bank
and the Plan. The Agent will not commence the Syndicated Community Offering
without the prior approval of the Brookline Parties.
SECTION 3. REFUND OF PURCHASE PRICE. In the event that the Conversion is
not consummated for any reason, including but not limited to the inability to
sell a minimum of 21,675,000 Shares during the Offerings (including any
permitted extension thereof) or such other minimum number of Shares as shall be
established consistent with the Plan and the Conversion Regulations, this
Agreement shall terminate and any persons who have subscribed for any of the
Shares shall have refunds placed in the mail to them promptly of the full amount
which has been received from such person, together with interest as provided in
the Prospectus.
SECTION 4. FEES. In addition to the expenses specified in Section 9 hereof,
as compensation for the Agent's services under this Agreement, the Agent has
received or will receive the following fees from the Brookline Parties:
(a) An advisory and management fee and Voting Member proxy
solicitation fee of $50,000 shall be paid as follows: (i) $25,000 was paid upon
execution of the Letter Agreement, and (ii) $25,000 was paid upon the initial
filing of the Registration Statement. Fees for services shall be one percent
(1.0%) of the dollar amount of the Common Stock sold in the Offerings, other
than for shares sold pursuant to 4(b), and will be paid at Closing. No fee shall
be payable for stock sold in the Offerings to officers, directors, employees or
immediate family of such persons ("Insiders") and qualified and non-qualified
employee benefit plans of the Company or the Insiders. The term "immediate
family" includes spouse, siblings, parents and also children who reside within
the same household as an officer, director or employee.
(b) If any of the Shares remain unsubscribed after the Subscription
Offering and Community Offering, at the request of the Holding Company, the
Agent will form a group of approved broker-dealer firms in accordance with
Section 2 for purposes of the Syndicated
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Community Offering. The fees payable by the Brookline Parties pursuant to this
Section 4(b) will not exceed six percent (6.0%) of the aggregate dollar amount
of the Shares sold in the Syndicated Community Offering. Of such fee, the Agent
will receive (1.0%) of the aggregate dollar amount of the shares sold pursuant
to this Section 4(b) as a management fee, and the Brookline Parties will pay the
remainder to the Assisting Brokers, which may include the Agent, in amounts
relating to the number of Shares sold by such Assisting Brokers pursuant to this
Section 4(b). All such fees payable under this Section 4(b) shall be in addition
to all fees payable under Section 4(a) and shall be paid at Closing (as defined
below).
In the event that the Holding Company is required to resolicit subscribers
for Shares in the Subscription Offering and Community Offering and the Agent is
required to provide significant additional services in connection with such a
resolicitation, the Brookline Parties and the Agent shall mutually agree to the
dollar amount of additional compensation due to the Agent and the Brookline
Parties shall pay such amount, if any. Until any agreement called for by this
paragraph is reached, the Agent shall not incur expenses relating to any
resolicitation in an amount that would cause the total expenses incurred by the
Agent that are reimbursable by the Bank pursuant to Section 9 hereof to be
greater than those permitted without the prior written consent of the Holding
Company, which consent shall not be unreasonably withheld.
SECTION 5. CLOSING. If the minimum number of Shares permitted to be sold in
the Offerings on the basis of the most recently updated Appraisal (as defined in
Section 6(g)) are subscribed for at or before the termination date of the
Offerings (which may be extended), and the other conditions (including those in
Section 10) to the completion of the Conversion are satisfied, the Holding
Company agrees to issue the Shares on the Closing Date (as hereinafter defined)
against payment therefor by the means authorized by the Plan and to deliver
certificates evidencing ownership of the Shares in such authorized denominations
and registrations directly to the purchasers thereof or as instructed as
promptly as practicable after the Closing Date. The closing (the "Closing")
shall be held at the offices of Luse, Lehman, Xxxxxx, Xxxxxxxx & Xxxxxx, P.C.,
Washington, D.C., or at such other place as shall be agreed upon among the
Brookline Parties and the Agent, at 10:00 a.m., Eastern Time, on the business
day selected by the Holding Company, which business day shall be no less than
two business days following the giving of prior notice by the Holding Company to
the Agent or at such other time as shall be agreed upon by the Brookline Parties
and the Agent. At the Closing, the Brookline Parties shall deliver to the Agent
by wire transfer in same-day funds the commissions, fees and expenses owing to
the Agent as set forth in Section 4 and Section 9 hereof and the opinions
required hereby and other documents deemed reasonably necessary for the Agent
shall be executed and delivered to effect the sale of the Shares as contemplated
hereby and pursuant to the terms of the Prospectus; provided, however, that all
out-of-pocket expenses to which the Agent is entitled under Section 9 hereof
shall be due and payable upon receipt by the Holding Company or the Bank of a
written accounting therefor setting forth in reasonable detail the expenses
incurred by the Agent. The hour and date upon which the Holding Company shall
release the Shares for delivery in accordance with the terms hereof is referred
to herein as the "Closing Date."
SECTION 6. REPRESENTATIONS AND WARRANTIES OF THE BROOKLINE PARTIES. The
Brookline Parties jointly and severally represent and warrant to the Agent that:
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(a) Each of the Brookline Parties has all such power, authority,
authorizations, approvals and orders as may be required to enter into this
Agreement, and, as of the Closing Date, each of the Brookline Parties will have
all such power, authority, authorizations, approvals and orders as may be
required to carry out the provisions and conditions hereof and to issue and sell
the Shares as provided herein and as described in the Prospectus. The
consummation of the Conversion, the execution, delivery and performance of this
Agreement and the Letter Agreement and the consummation of the transactions
contemplated herein have been duly and validly authorized by all necessary
corporate action on the part of each of the Brookline Parties. This Agreement
has been validly executed and delivered by each of the Brookline Parties, and is
a valid, legal and binding obligation of each of the Brookline Parties, in each
case enforceable in accordance with its terms, except as the legality, validity,
binding nature and enforceability thereof may be limited by (i) bankruptcy,
insolvency, moratorium, reorganization, conservatorship, receivership or other
similar laws relating to or affecting the enforcement of creditors' rights
generally, (ii) general equity principles regardless of whether such
enforceability is considered in a proceeding in equity or at law, and (iii) the
extent, if any, that the provisions of Sections 11 or 12 hereof may be
unenforceable as against public policy.
(b) The Registration Statement was declared effective by the
Commission on __________, 2002. No stop order has been issued with respect to
the Prospectus. No proceedings related to the Prospectus have been initiated or,
to the knowledge of the Brookline Parties, threatened by the Commission. At the
time the Registration Statement, including the Prospectus contained therein
(including any amendment or supplement thereto), became effective, the
Registration Statement complied as to form in all material respects with the
1933 Act and the regulations promulgated thereunder. The Registration Statement
and the Prospectus did not contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances under which they were
made, not misleading. At the time any Rule 424(b) or (c) Prospectus was filed
with the Commission and at the Closing Date referred to in Section 5, the
Registration Statement, including the Prospectus (including any amendment or
supplement thereto) and, when taken together with the Prospectus, any Blue Sky
Application or Sales Information authorized for use by any of the Brookline
Parties in connection with the Offerings, 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, in light of the
circumstances under which they were made, not misleading; provided, however,
that the representations and warranties in this Section 6(b) shall not apply to
statements or omissions made in reliance upon and in conformity with written
information furnished to the Brookline Parties by the Agent expressly regarding
the Agent for use under the caption " The Conversion - Plan of Distribution,
Selling Agent Compensation."
(c) The Conversion Application has been approved by the OTS. The
Conversion Application did, and will, as of the Closing Date comply as to form
in all material respects with the Conversion Regulations and any other
applicable rules and regulations of the OTS.
(d) No order has been issued by the Commission preventing or
suspending the use of the Registration Statement or the Prospectus and no action
by or before any such
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government entity to revoke any approval, authorization or order of
effectiveness related to the Conversion is, to the best knowledge of the
Brookline Parties, pending or threatened.
(e) The Plan has been duly adopted by the Board of the MHC. To the
best knowledge of the Brookline Parties, no person has, or at the Closing Date
will have, sought to obtain review of the final action of the OTS in approving
the Plan or the Conversion Application or the Holding Company Application,
pursuant to the HOLA or any other statute or regulation.
(f) The Holding Company has filed the Holding Company Application
with the OTS. As of the Closing Date, the OTS will have approved of the Holding
Company's becoming a unitary savings and loan holding company with respect to
the Bank.
(g) RP Financial, LC, which prepared the appraisal of the aggregate
pro forma market value of the Common Stock on which the Offerings were based
(the "Appraisal"), has advised the Brookline Parties in writing that it is
independent with respect to each of the Brookline Parties and the Brookline
Parties believe RP Financial, LC to be expert in preparing appraisals of savings
institutions.
(h) Xxxxx Xxxxxxxx LLP, which certified the financial statements
filed as part of the Registration Statement and the Conversion Application, has
advised the Brookline Parties that it is an independent certified public
accountant within the meaning of the Code of Ethics of the AICPA, and Xxxxx
Xxxxxxxx LLP is, with respect to the Brookline Parties and each subsidiary
thereof, independent certified public accountants as required by the 1933 Act
and the 1933 Act Regulations.
(i) The financial statements and the notes thereto which are included
in the Registration Statement and which are a part of the Prospectus present
fairly in all material respects the financial condition and retained earnings of
the Mid-Tier Holding Company and the Bank as of the dates indicated and the
results of operations and cash flows for the periods specified. The financial
statements comply in all material respects with the applicable accounting
requirements of Title 12 of the Code of Federal Regulations, Regulation S-X of
the Commission and generally accepted accounting principles ("GAAP") applied on
a consistent basis during the periods presented, except as otherwise noted
therein, and present fairly in all material respects the information required to
be stated therein. The other financial, statistical and pro forma information
and related notes included in the Prospectus present fairly the information
shown therein on a basis consistent with the audited and any unaudited financial
statements included in the Prospectus, and as to the pro forma adjustments, the
adjustments made therein have been consistently applied on the basis described
therein.
(j) Since the respective dates as of which information is given in
the Registration Statement, including the Prospectus: (i) there has not been any
material adverse change in the financial condition, results of operation,
capital, properties, business affairs or prospects of the Brookline Parties
considered as one enterprise, whether or not arising in the ordinary course of
business; (ii) there have not been any material transactions entered into by any
of the Brookline Parties, other than those in the ordinary course of business;
and (iii) the capitalization, liabilities, assets, properties and business of
the Brookline Parties conform in all material respects to the descriptions
thereof contained in the Prospectus and, none of the
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Brookline Parties has any material liabilities of any kind, contingent or
otherwise, except as disclosed in the Registration Statement or the Prospectus.
(k) As of the Closing Date, the Holding Company will be a stock
corporation duly organized and in good standing under the laws of the State of
Delaware, with corporate power and authority to own its properties and to
conduct the business currently conducted by the Mid-Tier Holding Company, as
described in the Prospectus, and will be qualified to transact business and will
be in good standing in Delaware and in each jurisdiction in which the conduct of
business requires such qualification, unless the failure to qualify in one or
more of such jurisdictions would not have a material adverse effect on the
financial condition, results of operation, capital, properties, business affairs
or prospects of the Brookline Parties taken as a whole (a "Material Adverse
Effect"). As of the Closing Date, the Holding Company will have obtained all
licenses, permits and other governmental authorizations required for the conduct
of its business, except those that individually or in the aggregate would not
have a Material Adverse Effect; and as of the Closing Date, all such licenses,
permits and governmental authorizations will be in full force and effect, and
the Holding Company will be in compliance therewith in all material respects.
(l) The Holding Company does not, and as of the Closing Date, will
not own any equity securities or any equity interest in any business enterprise
except as described in the Prospectus.
(m) The Bank is a duly organized and validly existing federally
chartered savings bank, duly authorized to conduct its business as described in
the Prospectus; the activities of the Bank are permitted by the applicable
rules, regulations and practices of the OTS; the Bank has obtained all licenses,
permits and other governmental authorizations currently required for the conduct
of its business, except those that individually or in the aggregate would not
have a Material Adverse Effect; all such licenses, permits and other
governmental authorizations are in full force and effect and the Bank is in good
standing under the laws of the United States and the Bank is duly qualified as a
foreign corporation to transact business in each jurisdiction in which the
failure to so qualify would have a Material Adverse Effect; all of the issued
and outstanding capital stock of the Bank after the Conversion will be duly and
validly issued and fully paid and nonassessable; and the Holding Company will
directly own all of the capital stock of the Bank free and clear of any
mortgage, pledge, lien, encumbrance, claim or restriction of any kind. The Bank
does not own equity securities or any equity interest in any other business
enterprise except as otherwise described in the Prospectus or as are immaterial
in amount and are not required to be described in the Prospectus.
(n) The MHC is a federally chartered mutual holding company operating
under the laws and regulations of the United States and under the supervision of
the OTS and is in good standing under such laws.
(o) The Mid-Tier Holding Company is a duly organized and validly
existing federally chartered stock corporation, duly authorized to conduct its
business as described in the Prospectus; the activities of the Mid-Tier Holding
Company are permitted by the rules, regulations and practices of the OTS; the
Mid-Tier Holding Company has obtained all licenses, permits and other
governmental authorizations currently required for the conduct of its business,
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except those that, individually or in the aggregate, would not have a Material
Adverse Effect; all such licenses, permits and other governmental authorizations
are in full force and effect and the Mid-Tier Holding Company is in good
standing under the laws of United States and the Mid-Tier Holding Company is
duly qualified as a foreign corporation to transact business in each
jurisdiction in which the failure to so qualify would have a Material Adverse
Effect.
(p) The deposit accounts of the Bank are insured by the FDIC up to
applicable limits. Upon consummation of the Conversion, the Bank will establish
a liquidation account for the benefit of the Bank's depositors, in accordance
with the Plan and the requirements of applicable Conversion Regulations.
(q) As of the Closing Date, the Bank will be a wholly owned
subsidiary of the Holding Company.
(r) Upon consummation of the Conversion, the authorized, issued and
outstanding capital stock of the Holding Company will be within the range set
forth in the Prospectus under the caption "Capitalization" and no shares of
Common Stock have been or will be issued and outstanding prior to the Closing
Date; the shares of Common Stock to be subscribed for in the Offerings have been
duly and validly authorized for issuance and, when issued and delivered by the
Holding Company pursuant to the Plan against payment of the consideration
calculated as set forth in the Plan and the Prospectus, will be duly and validly
issued and fully paid and nonassessable; the issuance of the Shares is not
subject to preemptive rights, except for the subscription rights granted
pursuant to the Plan; and the terms and provisions of the shares of Common Stock
will conform in all material respects to the description thereof contained in
the Prospectus. Upon issuance of the Shares sold, good title to the Shares will
be transferred from the Holding Company to the purchasers of Shares against
payment therefor in the Offering as set forth in the Plan and the Prospectus.
(s) The Brookline Parties are not in violation of their respective
certificates of incorporation or charters or their respective bylaws, or in
material default in the performance or observance of any obligation, agreement,
covenant, or condition contained in any contract, lease, loan agreement,
indenture or other instrument to which they are a party or by which they, or any
of their respective properties, may be bound which would result in a Material
Adverse Effect. The consummation of the transactions contemplated herein and in
the Plan will not (i) conflict with or constitute a breach of, or default under,
the certificate of incorporation, charter or bylaws of any of the Brookline
Parties, or conflict with or constitute a breach of, or default under, any
material contract, lease or other instrument to which any of the Brookline
Parties has a beneficial interest, or any applicable law, rule, regulation or
order that is material to the financial condition of the Bank; (ii) violate any
authorization, approval, judgment, decree, order, statute, rule or regulation
applicable to the Brookline Parties except for such violations which would not
have a Material Adverse Effect; or (iii) result in the creation of any lien,
charge or encumbrance upon any property of the Brookline Parties, except for
such liens, changes or encumbrances that would not individually or in the
aggregate have a Material Adverse Effect.
(t) No default exists, and no event has occurred which with notice or
lapse of time, or both, would constitute a default on the part of any of the
Brookline Parties, in the due performance and observance of any term, covenant
or condition of any indenture, mortgage,
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deed of trust, note, bank loan or credit agreement or any other instrument or
agreement to which any of the Brookline Parties is a party or by which any of
their property is bound or affected in any respect which, in any such case,
would have a Material Adverse Effect on the Brookline Parties taken as a whole,
and such agreements are in full force and effect; and no other party to any such
agreements has instituted or, to the best knowledge of any of the Brookline
Parties, threatened any action or proceeding wherein any of the Brookline
Parties is alleged to be in default thereunder under circumstances where such
action or proceeding, if determined adversely to any of the Brookline Parties,
would have a Material Adverse Effect.
(u) The Brookline Parties have good and marketable title to all
assets which are material to the businesses of the Brookline Parties, free and
clear of all liens, charges, encumbrances, restrictions or other claims, except
such as are described in the Prospectus or which do not have a Material Adverse
Effect; and all of the leases and subleases which are material to the businesses
of the Brookline Parties, including those described in the Registration
Statement or Prospectus, are in full force and effect.
(v) The Brookline Parties are not in violation of any material
directive from the OTS, the FDIC, or any other agency to make any material
change in the method of conducting their respective businesses; the Brookline
Parties have conducted and are conducting their respective businesses so as to
comply in all respects with all applicable statutes and regulations (including,
without limitation, regulations, decisions, directives and orders of the OTS,
the Commission and the FDIC), except where the failure to so comply would not
reasonably be expected to result in a Material Adverse Effect, and there is no
charge, investigation, action, suit or proceeding before or by any court,
regulatory authority or governmental agency or body pending or, to the best
knowledge of any of the Brookline Parties, threatened, which would reasonably be
expected to materially and adversely affect the Conversion, the performance of
this Agreement, or the consummation of the transactions contemplated in the Plan
as described in the Registration Statement, or which would reasonably be
expected to result in a Material Adverse Effect.
(w) Prior to the Closing Date, the Brookline Parties will have
received an opinion of their special counsel, Xxxx Xxxxxx Xxxxxx Xxxxxxxx &
Xxxxxx, with respect to the federal income tax consequences of the Conversion,
as described in the Registration Statement and the Prospectus and an opinion of
[___________] with respect to the state tax consequences of the Conversion, as
described in the Registration Statement and the Prospectus; and the facts and
representations upon which such opinions will be based, will be truthful,
accurate and complete, and none of the Brookline Parties will take any action
inconsistent therewith.
(x) The Mid-Tier Holding Company and the Bank have filed all required
federal and state tax returns, paid all taxes that have become due and payable,
except where permitted to be extended or where the failure to pay such taxes
would not have a Material Adverse Effect, and no deficiency has been asserted
with respect thereto by any taxing authority.
(y) No approval, authorization, consent or other order of any
regulatory or supervisory or other public authority is required for the
execution and delivery by the Brookline Parties of this Agreement, or the
issuance of the Shares, except for the approval of the OTS and
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the Commission and any necessary qualification, notification, or registration or
exemption under the securities or blue sky laws of the various states in which
the Shares are to be offered.
(z) None of the Brookline Parties has: (i) issued any securities
within the last 18 months (except for (a) notes to evidence bank loans or other
liabilities in the ordinary course of business or as described in the
Prospectus, and (b) shares of Common Stock issued with respect to the initial
capitalization of the Holding Company); (ii) had any dealings with respect to
sales of securities within the 12 months prior to the date hereof with any
member of the NASD, or any person related to or associated with such member,
other than discussions and meetings relating to the Offerings and purchases and
sales of U.S. government and agency and other securities in the ordinary course
of business; or (iii) engaged any intermediary between the Agent and the
Brookline Parties in connection with the Offerings or the offering of shares of
the common stock of the Mid-Tier Holding Company, and no person is being
compensated in any manner for such services.
(aa) The Brookline Parties have not made any payment of funds of the
Brookline Parties as a loan to any person for the purchase of Shares, except for
the Holding Company's loan to the employee stock ownership plan the proceeds of
which will be used to purchase Shares, or has made any other payment or loan of
funds prohibited by law, and no funds have been set aside to be used for any
payment prohibited by law.
(bb) The Bank complies in all material respects with the applicable
financial record keeping and reporting requirements of the Currency and Foreign
Transactions Reporting Act of 1970, as amended, and the regulations and rules
thereunder.
(cc) The Brookline Parties have not relied upon Agent or its counsel
for any legal, tax or accounting advice in connection with the Conversion.
(dd) The records of Eligible Account Holders and Supplemental Eligible
Account Holders and Other Members are accurate and complete in all material
respects.
(ee) The Brookline Parties comply with all laws, rules and regulations
relating to environmental protection, and none of them has been notified or is
otherwise aware that any of them is potentially liable, or is considered
potentially liable, under the Comprehensive Environmental Response, Compensation
and Liability Act of 1980, as amended, or any other Federal, state or local
environmental laws and regulations except to the extent that any non-compliance
would not have a Material Adverse Effect; no action, suit, regulatory
investigation or other proceeding is pending, or to the knowledge of the
Brookline Parties, threatened against the Brookline Parties relating to
environmental protection, nor do the Brookline Parties have any reason to
believe any such proceedings may be brought against any of them; and, to the
knowledge of the Brookline Parties, no disposal, release or discharge of
hazardous or toxic substances, pollutants or contaminants, including petroleum
and gas products, as any of such terms may be defined under federal, state or
local law, has occurred on, in, at or about any facilities or properties owned
or leased by any of the Brookline Parties or in which the Bank has a security
interest, except to the extent such disposal, release or discharge would not
have a Material Adverse Effect.
10
(ff) All of the loans represented as assets on the recent developments
or financial information of the Brookline Parties included in the Prospectus
meet or are exempt from all requirements of federal, state and local law
pertaining to lending, including, without limitation, truth in lending
(including the requirements of Regulations Z and 12 C.F.R. Part 226), real
estate settlement procedures, consumer credit protection, equal credit
opportunity and all disclosure laws applicable to such loans, except for
violations which, if asserted, would not result in a Material Adverse Effect.
(gg) None of the Brookline Parties is required to be registered as an
investment company under the Investment Company Act of 1940.
(hh) Any certificates signed by an officer of any of the Brookline
Parties and delivered to the Agent or its counsel that refer to this Agreement
shall be deemed to be a representation and warranty by the Brookline Parties to
the Agent as to the matters covered thereby with the same effect as if such
representation and warranty were set forth herein.
(ii) The Brookline Parties have taken all actions necessary to obtain
at Closing a Blue Sky Memorandum from Xxxx Xxxxxx Xxxxxx Xxxxxxxx & Xxxxxx.
SECTION 7. REPRESENTATIONS AND WARRANTIES OF THE AGENT. Agent represents
and warrants to the Brookline Parties that:
(a) Agent is a corporation and is validly existing and in good
standing under the laws of the State of New Jersey with full power and authority
to provide the services to be furnished to the Brookline Parties hereunder.
(b) The execution, delivery and performance of this Agreement and the
Letter Agreement and the consummation of the transactions contemplated herein
and therein have been duly and validly authorized by all necessary corporate
action on the part of Agent, and each of this Agreement and the Letter Agreement
is the legal, valid and binding agreement of Agent, enforceable in accordance
with its terms, except as the legality, validity, binding nature and
enforceability thereof may be limited by (i) bankruptcy, insolvency, moratorium,
reorganization, conservatorship, receivership or other similar laws relating to
or affecting the enforcement of creditors' rights generally, and (ii) general
equity principles regardless of whether such enforceability is considered in a
proceeding in equity or at law.
(c) Each of Agent and its employees, agents and representatives who
shall perform any of the services hereunder shall have, and until the Offerings
are consummated or terminated shall maintain, all licenses, approvals and
permits necessary to perform such services and shall comply in all material
respects with all applicable laws and regulations in connection with the
performance of such services.
(d) No action, suit, charge or proceeding before the Commission, the
NASD, any state securities commission or any court is pending, or to the
knowledge of Agent threatened, against Agent which, if determined adversely to
Agent, would have a material adverse effect upon the ability of Agent to perform
its obligations under this Agreement.
11
(e) Agent is registered as a broker/dealer pursuant to Section 15(b)
of the Securities Exchange Act of 1934, as amended (the "1934 Act") and is a
member of the National Association of Securities Dealers, Inc.
(f) Any funds received in the Offerings by the Agent will be handled
by the Agent in accordance with Rule 15c2-4 under the 1934 Act to the extent
applicable.
SECTION 8. COVENANTS OF THE BROOKLINE PARTIES. The Brookline Parties hereby
jointly and severally covenant with the Agent as follows:
(a) The Holding Company will not, at any time after the date the
Registration Statement is declared effective, file any amendment or supplement
to the Registration Statement without providing the Agent and its counsel an
opportunity to review and comment on such amendment or supplement. The Holding
Company will furnish promptly to the Agent and its counsel copies of all
correspondence from the Commission with respect to the Registration Statement
and the Holding Company's responses thereto.
(b) The Brookline Parties will not, at any time after the date any
Application is approved, file any amendment or supplement to such Application
without providing the Agent and its counsel an opportunity to review and comment
on such amendment or supplement. The Brookline Parties will furnish promptly to
the Agent and its counsel copies of all correspondence from the OTS with respect
to the Applications and the Brookline Parties' responses thereto.
(c) The Brookline Parties will use their best efforts to cause the
OTS to approve the Holding Company's acquisition of the Bank, and will use their
best efforts to cause any post-effective amendment to the Registration Statement
to be declared effective by the Commission and any post-effective amendment to
the Conversion Application to be approved by the OTS, as applicable, and will
promptly upon receipt of any information concerning the events listed below
notify the Agent (i) when the Registration Statement, as amended, has become
effective; (ii) when the Conversion Application as amended, has received the
approval of the OTS; (iii) when the Holding Company Application, as amended, has
been approved by the OTS; (iv) of the receipt of any comments from the OTS or
any other governmental entity with respect to the Conversion or the transactions
contemplated by this Agreement; (v) of any request by the Commission, the OTS,
or any other governmental entity for any amendment or supplement to the
Registration Statement or the Applications or for additional information; (vi)
of the issuance by the Commission or the OTS, or any other governmental agency
of any order or other action suspending the Offerings or the use of the
Registration Statement or the Prospectus or any other filing of the Brookline
Parties under the Conversion Regulations or other applicable law, or the threat
of any such action; (vii) of the issuance by the Commission or the OTS, or any
other state authority of any stop order suspending the effectiveness of the
Registration Statement or of the initiation or threat of initiation or threat of
any proceedings for that purpose; or (viii) of the occurrence of any event
mentioned in subsection (f) below. The Brookline Parties will make every
reasonable effort to prevent the issuance by the Commission, the OTS, or any
other state authority of any order referred to in (vi) and (vii) above and, if
any such order shall at any time be issued, to obtain the lifting thereof at the
earliest possible time.
12
(d) The Brookline Parties will deliver to the Agent and to its
counsel conformed copies of each of the following documents, with all exhibits:
the Applications as originally filed and of each amendment or supplement
thereto, and the Registration Statement, as originally filed and each amendment
thereto. Further, the Brookline Parties will deliver such additional copies of
the foregoing documents to counsel to the Agent as may be required for any NASD
filings. In addition, the Brookline Parties will also deliver to the Agent such
number of copies of the Prospectus, as amended or supplemented, as the Agent may
reasonably request.
(e) The Brookline Parties will comply in all material respects with
any and all terms, conditions, requirements and provisions with respect to the
Conversion and the transactions contemplated thereby imposed by the Commission,
by applicable state law and regulations, and by the 1933 Act, the 1934 Act, and
the rules and regulations of the Commission promulgated under such Acts, to be
complied with prior to the Closing Date; and when the Prospectus is required to
be delivered, the Brookline Parties will comply in all material respects, at
their own expense, with all requirements imposed upon them by the OTS, the
Conversion Regulations (except as modified or waived in writing by the OTS), the
Commission, by applicable state law and regulations and by the 1933 Act, the
1934 Act and the rules and regulations of the Commission promulgated under such
statutes, in each case as from time to time in force, so far as is 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.
(f) During any period when the Prospectus is required to be
delivered, each of the Brookline Parties will inform the Agent of any event or
circumstance of which it is or becomes aware as a result of which the
Registration Statement and/or Prospectus, as then supplemented or amended, would
include an untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein not misleading. If it is
necessary, in the reasonable opinion of counsel for the Brookline Parties, to
amend or supplement the Registration Statement or the Prospectus in order to
correct such untrue statement of a material fact or to make the statements
therein not misleading in light of the circumstances existing at the time of
their use, the Brookline Parties will, at their expense, prepare, file with the
Commission and the OTS, and furnish to the Agent, a reasonable number of copies
of an amendment or amendments of, or a supplement or supplements to, the
Registration Statement and the Prospectus (after a reasonable time for review by
counsel for the Agent) which will amend or supplement the Registration Statement
and/or the Prospectus so that as amended or supplemented it will not contain an
untrue statement of a material fact or omit to state a material fact necessary
in order to make the statements therein, in light of the circumstances existing
at the time, not misleading. For the purpose of this subsection, each of the
Brookline Parties will furnish such information with respect to itself as the
Agent may from time to time reasonably request.
(g) Pursuant to the terms of the Plan, the Holding Company will
endeavor in good faith, in cooperation with the Agent, to register or to qualify
the Shares for offering and sale or to exempt such Shares from registration and
to exempt the Holding Company and its officers, directors and employees from
registration as broker-dealers, under the applicable securities laws of the
jurisdictions in which the Offerings will be conducted; provided, however, that
the Holding Company shall not be obligated to file any general consent to
service of process or to qualify as a foreign corporation to do business in any
jurisdiction in which it is not so
13
qualified. In each jurisdiction where any of the Shares shall have been
registered or qualified as above provided, the Holding Company will make and
file such statements and reports as are required by the applicable regulatory
authority in connection with such registration or qualification for a period of
not less than one year from the effective date of the Registration Statement.
(h) The Holding Company will not sell or issue, contract to sell or
otherwise dispose of, for a period of 90 days after the date hereof, any shares
of Common Stock or securities into or exercisable for shares of Common Stock,
without the Agent's prior written consent other than in connection with any plan
or arrangement described in the Prospectus.
(i) For a period of three years from the date of this Agreement, the
Holding Company will furnish to the Agent, as soon as practical after such
information is available (i) a copy of each report of the Holding Company
furnished to or filed with the Commission under the 1934 Act or any national
securities exchange or system on which any class of securities of the Holding
Company is listed or quoted, (ii) a copy of each report of the Holding Company
mailed to holders of Common Stock, (iii) each press release and material news
item and article released by the Holding Company and/or Bank, and (iv) from
time-to-time, such other publicly available information concerning the Brookline
Parties as the Agent may reasonably request.
(j) The Brookline Parties will use the net proceeds from the sale of
the Common Stock in the manner set forth in the Prospectus under the caption
"Use of Proceeds."
(k) The Holding Company and the Bank will distribute the Prospectus
or other offering materials in connection with the offering and sale of the
Common Stock only in accordance with the Conversion Regulations of the OTS, the
1933 Act and the 1934 Act and the rules and regulations promulgated under such
statutes, and the laws of any state in which the shares are qualified for sale.
(l) Prior to the Closing Date, the Holding Company shall register its
Common Stock under Section 12(b) or 12(g) of the 1934 Act, and will request that
such registration statement shall be effective no later than the completion of
the Conversion.
(m) For so long as the Shares are registered under the 1934 Act, the
Holding Company will furnish to its stockholders as soon as practicable after
the end of each fiscal year such reports and other information as are required
to be furnished to its stockholders under the 1934 Act.
(n) The Holding Company will report the use of proceeds of the
Offering in accordance with Rule 463 under the 1933 Act.
(o) The Brookline Parties will maintain appropriate arrangements for
depositing all funds received from persons mailing subscriptions for or orders
to purchase Shares on an interest bearing basis as described in the Prospectus
until the Closing Date and satisfaction of all conditions precedent to the
release of the Holding Company's obligation to refund payments received from
persons subscribing for or ordering Shares in the Offerings, in accordance with
the Plan as described in the Prospectus, or until refunds of such funds have
been made to the persons entitled thereto or withdrawal authorizations canceled
in accordance with
14
the Plan and as described in the Prospectus. The Brookline Parties will maintain
such records of all funds received to permit the funds of each subscriber to be
separately insured by the FDIC (to the maximum extent allowable) and to enable
the Brookline Parties to make the appropriate refunds of such funds in the event
that such refunds are required to be made in accordance with the Plan and as
described in the Prospectus.
(p) The Holding Company will register as a unitary savings and loan
holding company under HOLA.
(q) The Brookline Parties 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 "Interpretation of the Board of Governors of the NASD
on Free Riding and Withholding."
(r) The Brookline Parties will conduct their businesses in compliance
in all material respects with all applicable federal and state laws, rules,
regulations, decisions, directives and orders, including all decisions,
directives and orders of the Commission, the FDIC and the OTS.
(s) The Brookline Parties shall comply with any and all terms,
conditions, requirements and provisions with respect to the Conversion and the
transactions contemplated thereby imposed by the OTS, the HOLA, the Commission,
the 1933 Act, the Regulations, the 1934 Act and the regulations promulgated by
the Commission pursuant to the 1934 Act to be complied with subsequent to the
Closing Date. The Holding Company will comply with all provisions of all
undertakings contained in the Registration Statement.
(t) The Brookline Parties will not amend the Plan without notifying
the Agent prior thereto.
(u) The Holding Company shall provide the Agent with any information
necessary to allow the Agent to manage the allocation process in order to permit
the Holding Company to carry out the allocation of the Shares in the event of an
oversubscription, and such information shall be accurate and reliable in all
material respects.
(v) The Holding Company will not deliver the Shares until the
Brookline Parties have satisfied or caused to be satisfied each condition set
forth in Section 10 hereof, unless such condition is waived in writing by the
Agent.
(w) Immediately upon completion of the sale by the Holding Company of
the Shares contemplated by the Plan and the Prospectus and the completion of
certain transactions necessary to implement the Plan, (i) all of the issued and
outstanding shares of capital stock of the Bank shall be owned by the Holding
Company, (ii) the Holding Company shall have no direct subsidiaries other than
the Bank, and (iii) the Conversion shall have been effected in accordance with
all applicable statutes, regulations, decisions and orders; and all terms,
conditions, requirements and provisions with respect to the Conversion (except
those that are conditions subsequent) imposed by the Commission, the OTS or any
other governmental agency, if any, shall have been complied with by the
Brookline Parties in all material respects or appropriate waivers shall have
been obtained and all notice and waiting periods shall have been satisfied,
waived or elapsed.
15
(x) Prior to the Closing Date, the Plan shall have been approved by
the voting members of the MHC and the stockholders of the Mid-Tier Holding
Company in accordance with the Plan and the Conversion Regulations and the
applicable provisions, if any, of the MHC's charter and bylaws.
(y) On or before the Closing Date, the Brookline Parties will have
used their best efforts to obtain approval for quotation of shares of the Common
Stock on the Nasdaq National Market System by the Closing Date and will use its
best efforts to maintain such quotation and will have completed all conditions
precedent to the Conversion specified in the Plan and the offer and sale of the
Shares will have been conducted in all material respects in accordance with the
Plan, the Conversion Regulations (except as modified or waived in writing by the
OTS) and with all other applicable laws, regulations, decisions and orders,
including all terms, conditions, requirements and provisions precedent to the
Conversion imposed upon any of the Brookline Parties by the OTS, the Commission
or any other regulatory authority and in the manner described in the Prospectus.
(z) The Holding Company shall notify the Agent when funds shall have
been received for the minimum number of Shares set forth in the Prospectus.
(aa) The officers and directors of the Brookline Parties shall not
exercise any stock options providing for the issuance of shares of common stock
in the Mid-Tier Holding Company during the Offering or otherwise sell or
transfer any shares of Common Stock commencing on the date hereof and continuing
for a period of 90 days following the Closing Date (the "Restricted Period").
The Brookline Parties shall not honor the exercise of any stock options
providing for the issuance of shares of common stock in the Mid-Tier Holding
Company by any such officer or director during the Offering, nor shall the
Company otherwise assist such officers or directors in connection with the sale
or transfer of shares of Common Stock during the Restricted Period.
SECTION 9. PAYMENT OF EXPENSES. Whether or not the Conversion is completed
or the sale and exchange of the Shares by the Holding Company is consummated,
the Brookline Parties will pay for all their expenses incident to the
performance of this Agreement, including without limitation: (a) the preparation
and filing of the Application and Registration Statement; (b) the preparation,
printing, filing, delivery and mailing of the Registration Statement, including
the Prospectus, and all documents related to the Offerings and proxy
solicitation; (c) all filing fees and expenses in connection with the
qualification or registration of the Shares for offer and sale by the Holding
Company or the Bank under the securities or "blue sky" laws, including without
limitation filing fees, reasonable legal fees and disbursements of counsel in
connection therewith, and in connection with the preparation of a blue sky law
survey; (d) the filing fees of the NASD related to the Agent's fairness filing
under NASD Rule 2710 and the application of the Holding Company to list its
shares; (e) fees and expenses related to the preparation of the independent
appraisal; (f) fees and expenses related to auditing and accounting services;
(g) expenses relating to advertising, temporary personnel, investor meetings and
stock information center; (h) transfer agent fees and costs of preparation and
distribution of stock certificates; and (i) Nasdaq listing fees. The Brookline
Parties also agree to reimburse Agent for reasonable out-of-pocket expenses,
including legal fees and expenses, incurred by Agent in connection with the
services hereunder. Agent will not incur legal fees in excess of $75,000 (plus
counsel's out-of-
16
pocket expenses not to exceed $3,000) without the approval of the Mid-Tier
Holding Company. The Agent will not incur other out-of-pocket expenses in excess
of $25,000 without prior approval of the Mid-Tier Holding Company. In the event
that the Agent incurs any expenses on behalf of the Brookline Parties, the
Brookline Parties will pay or reimburse the Agent for such expenses regardless
of whether the Conversion is successfully completed, and such reimbursements
will not be included in the expense limitations set forth in the following
paragraph. The Agent will not incur any single expense of more than $2,000
pursuant to this paragraph without the prior approval of the Mid-Tier Holding
Company, MHC or the Bank. The Brookline Parties acknowledge, however, that such
limitations may be increased by the mutual consent of the Mid-Tier Holding
Company and Agent in the event of delay in the Offering requiring the Agent to
utilize a Syndicated Community Offering, a delay as a result of circumstances
requiring material additional work by Agent or its counsel or an update of the
financial information in tabular form contained in the Prospectus for a period
later than March 31, 2002. Not later than two days prior to the Closing Date,
the Agent will provide the Bank with a detailed accounting of all reimbursable
expenses to be paid at the Closing.
SECTION 10. CONDITIONS TO THE AGENT'S OBLIGATIONS. The obligations of the
Agent hereunder and the occurrence of the Closing and the Conversion are subject
to the condition that all representations and warranties of the Brookline
Parties herein contained are, at and as of the commencement of the Offerings and
at and as of the Closing Date, true and correct, the condition that the
Brookline Parties shall have performed, in all material respects, all of their
obligations hereunder to be performed on or before such dates and to the
following further conditions:
(a) The Registration Statement shall have been declared effective by
the Commission, the Conversion Application and Holding Company Application shall
have been approved by the OTS and no stop order or other action suspending the
effectiveness of the Registration Statement shall have been issued under the
1933 Act or proceedings therefor initiated or, to the knowledge of the Brookline
Parties, threatened by the Commission or any state authority and no order or
other action suspending the authorization for use of the Prospectus or the
consummation of the Conversion shall have been issued, or proceedings therefor
initiated or, to the knowledge of the Brookline Parties, threatened by the OTS,
the Commission, or any other governmental body.
(b) At the Closing Date, the Agent shall have received:
(1) The opinion, dated as of the Closing Date, of Xxxx Xxxxxx
Xxxxxx Xxxxxxxx & Xxxxxx, and/or local counsel acceptable to the
Agent, in form and substance satisfactory to the Agent and counsel for
the Agent to the effect that:
(i) The Holding Company is a corporation duly organized
and validly existing and in good standing under the laws of the
State of Delaware, with corporate power and authority to own its
properties and to conduct its business as described in the
Prospectus, and is duly qualified to transact business and is in
good standing in Delaware and in each other jurisdiction in which
the conduct of its business requires such qualification, except
where the failure to qualify would have a Material
17
Adverse Effect.
(ii) On the date hereof, the Bank is a validly existing
federally chartered stock savings bank, and upon consummation of
the Conversion, the Bank will continue to be a validly existing
federally chartered stock savings bank, with full power and
authority to own its properties and to conduct its business as
described in the Prospectus and to enter into this Agreement and
perform its obligations hereunder; the activities of the Bank as
described in the Prospectus are permitted by federal law and the
rules, regulations and practices of the FDIC and the OTS; the
issuance and sale of the capital stock of the Bank to the Holding
Company in the Conversion has been duly and validly authorized by
all necessary corporate action on the part of the Holding Company
and the Bank and, upon payment therefor in accordance with the
terms of the Plan, will be validly issued, fully paid and
nonassessable and will be owned of record and beneficially by the
Holding Company, free and clear of any mortgage, pledge, lien,
encumbrance, claim or restriction. Similarly, any subsidiaries of
the Bank are validly existing corporations in good standing in
the jurisdiction of incorporation and authorized under state and
applicable federal law to conduct the businesses in which they
now engage.
(iii) The activities of the Mid-Tier Holding Company, the
MHC and the Bank, as described in the Prospectus, are permitted
under applicable federal law. To the best of such counsel's
knowledge, each of the MHC, the Mid-Tier Holding Company and the
Bank has obtained all licenses, permits, and other governmental
authorizations that are material for the conduct of its business,
and all such licenses, permits and other governmental
authorizations are in full force and effect, and to the best of
such counsel's knowledge the Mid-Tier Holding Company and the
Bank comply therewith in all material respects.
(iv) The Bank is an insured depository institution under
the provisions of the Federal Deposit Insurance Act, as amended,
and to such counsel's knowledge, no proceedings for the
termination or revocation of the federal deposit insurance of the
Bank are pending or threatened.
(v) Upon consummation of the Conversion, (a) the
authorized, issued and outstanding capital stock of the Holding
Company will be within the range set forth in the Prospectus
under the caption "Capitalization," and no shares of Common Stock
have been or will be issued and outstanding prior to the Closing
Date (except for the shares issued upon incorporation of the
Holding Company to facilitate the Conversion); (b) the shares to
be subscribed for in the Offerings will have been duly and
validly authorized for issuance, and when issued and delivered by
the Holding Company pursuant to the Plan against payment of the
consideration calculated as set forth in the Plan, will be fully
paid and nonassessable; and (c) the issuance of the Shares is not
subject to
18
preemptive rights under the charter, certificate of incorporation
or bylaws of the Holding Company, or arising or outstanding by
operation of law or under any contract, indenture, agreement,
instrument or other document known to such counsel, except for
the subscription rights under the Plan.
(vi) The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby have been
duly authorized by all necessary corporate action on the part of
the Brookline Parties; and this Agreement constitutes a valid,
legal and binding obligation of each of the Brookline Parties,
enforceable in accordance with its terms, except as rights to
indemnity and contribution thereunder may be limited under
applicable law, subject to the qualification that (i) enforcement
thereof may be limited by bankruptcy, insolvency, moratorium,
reorganization or other laws (including the laws of fraudulent
conveyance) or judicial decisions affecting the enforceability of
creditors' rights generally, the rights of creditors of savings
banks or financial institutions, the accounts of which are
insured by the FDIC, and (ii) enforcement thereof is subject to
general equity principles (regardless of whether such
enforceability is considered in a proceeding in equity or at law)
and to the effect of certain laws and judicial decisions upon the
availability of injunctive relief and enforceability of equitable
remedies, including the remedies of specific performance and
self-help.
(vii) The Plan has been duly adopted by the Board of
Directors of the MHC in the manner required by the Conversion
Regulations and the MHC's charter and bylaws.
(viii) The Conversion Application and the Holding Company
Application have been approved by the OTS, and subject to the
satisfaction of any conditions set forth in such approvals, no
further approval, registration, authorization, consent or other
order of any federal or state regulatory agency, public board or
body is required in connection with the execution and delivery of
this Agreement, the offer, sale and issuance of the Shares and
the consummation of the Conversion, except as may be required
under the securities or "blue sky" laws of various jurisdictions
as to which no opinion need be rendered.
(ix) The Registration Statement has become effective under
the 1933 Act and to such counsel's knowledge, no stop order
suspending the effectiveness of the Registration Statement has
been issued, or proceedings for that purpose have been instituted
or threatened by the Commission.
(x) The terms and provisions of the shares of Common
Stock conform to the description thereof contained in the
Registration Statement and the Prospectus, and the forms of
certificates proposed to be used to evidence the shares of Common
Stock are in due and proper form.
19
(xi) At the time the Conversion Application was approved,
the Conversion Application (as amended or supplemented), complied
as to form in all material respects with the requirements of the
Conversion Regulations and all applicable laws, rules and
regulations and decisions and orders of the OTS, except as
modified or waived in writing by the OTS (other than the
financial statements, notes to financial statements, financial
tables and other financial and statistical data included therein
and the appraisal valuation and the business plan as to which
counsel need express no opinion). To such counsel's knowledge, no
person has sought to obtain regulatory or judicial review of the
final action of the OTS in approving the Applications.
(xii) At the time that the Registration Statement became
effective and as of the Closing Date, the Registration Statement,
including the Prospectus (as amended or supplemented) (other than
the financial statements, notes to financial statements,
financial tables or other financial and statistical data included
therein and the appraisal valuation and the business plan as to
which counsel need express no opinion), complied as to form in
all material respects with the requirements of the 1933 Act and
the rules and regulations promulgated thereunder.
(xiii) To such counsel's knowledge, there are no legal or
governmental proceedings pending, or threatened (i) asserting the
invalidity of this Agreement or (ii) seeking to prevent the
Conversion or the offer, sale or issuance of the Shares.
(xiv) The information in the Prospectus under the captions
"Regulation," "Taxation," "Restrictions on Acquisition of
Brookline Bancorp, Inc.," "Description of Capital Stock of
Brookline Bancorp, Inc.," and "The Conversion," to the extent
that such information constitutes matters of law, summaries of
legal matters, documents or proceedings, or legal conclusions,
has been reviewed by such counsel and is accurate in all material
respects.
(xv) None of the Brookline Parties are required to be
registered as an investment company under the Investment Company
Act of 1940.
(xvi) None of the Brookline Parties is in violation of its
Certificate of Incorporation or its charter, as the case may be,
or its bylaws or, to the best of such counsel's knowledge, any
obligation, agreement, covenant or condition contained in any
contract, indenture, mortgage, loan agreement, note, lease or
other instrument filed as an exhibit to, or incorporated by
reference in, the Registration Statement, which violation would
have a Material Adverse Effect. In addition, the execution and
delivery of and performance under this Agreement by the Brookline
Parties, the incurrence of the obligations set forth herein and
the consummation of the transactions contemplated herein will not
result in (i)
20
any violation of the provisions of the articles of incorporation
or charter, as the case may be, or the bylaws of any of the
Brookline Parties, (ii) any violation of any applicable law, act,
regulation, or to such counsel's knowledge, order or court order,
writ, injunction or decree, and (iii) any violation of any
obligation, agreement, covenant or condition contained in any
contract, indenture, mortgage, loan agreement, note, lease or
other instrument filed as an exhibit to, or incorporated by
reference in, the Registration Statement or otherwise known by
such counsel which should have otherwise been filed as an exhibit
to the Registration Statement, which violation would have a
Material Adverse Effect.
The Agent's counsel may rely for purposes of its own opinion on the
opinion(s) of Xxxx Xxxxxx Xxxxxx Xxxxxxxx & Xxxxxx [and/or local counsel], whose
opinion(s) shall expressly authorize such reliance. The opinion may be limited
to matters governed by the laws of the United States and the corporate laws of
the State of Delaware. In rendering such opinion, such counsel may rely (A) as
to matters involving the application of laws of any jurisdiction other than the
United States, to the extent such counsel deems proper and specified in such
opinion, upon the opinion of counsel reasonably acceptable to the Agent, as long
as such other opinion indicates that the Agent may rely on the opinion, and (B)
as to matters of fact, to the extent such counsel deems proper, on certificates
of responsible officers of the Brookline Parties and public officials; provided
copies of any such opinion(s) or certificates of public officials are delivered
to Agent together with the opinion to be rendered hereunder by special counsel
to the Brookline Parties. In rendering such opinion, all statements contained
therein "to our knowledge" or "to our attention" or "known to us" means the
actual knowledge, following reasonable investigation, of the attorneys who have
worked on the transactions contemplated herein and, in the case of the opinion
rendered in Section 10(b)(1)(xiii), including a docket search in the counties in
which the Brookline Parties are located. The opinion of such counsel for the
Brookline Parties shall state that it has no reason to believe that the Agent is
not reasonably justified in relying thereon.
(2) The letter of Xxxx Xxxxxx Xxxxxx Xxxxxxxx & Xxxxxx shall
also state that during the preparation of the Registration Statement
and the Prospectus, Xxxx Xxxxxx Xxxxxx Xxxxxxxx & Xxxxxx participated
in conferences with certain officers of and other representatives of
the Brookline Parties, counsel to the Agent, representatives of the
independent public accountants for the Brookline Parties and
representatives of the Agent at which the contents of the Registration
Statement and the Prospectus and related matters were discussed and
has considered the matters required to be stated therein and the
statements contained therein and, although (without limiting the
opinions provided pursuant to Section 10(b)(1)), Xxxx Xxxxxx Xxxxxx
Xxxxxxxx & Xxxxxx has not independently verified the accuracy,
completeness or fairness of the statements contained in the
Registration Statement and Prospectus, on the basis of the foregoing,
nothing has come to the attention of Xxxx Xxxxxx Xxxxxx Xxxxxxxx &
Xxxxxx that caused Xxxx Xxxxxx Xxxxxx Xxxxxxxx & Xxxxxx to believe
that the Registration Statement at the time it was declared effective
by the Commission and as of the date of such letter, contained or
contains any untrue statement of a material fact or omitted to state
any material fact required to be stated therein or necessary to make
the statements therein in light of the circumstances under which they
were
21
made not misleading (it being understood that counsel need express no
comment or opinion with respect to statements, notes to financial
statements, schedules and other financial and statistical data
included, or statistical or appraisal methodology employed, in the
Registration Statement or Prospectus, the appraisal valuation or the
business plan).
(3) The favorable opinion, dated as of the Closing Date, of
Xxxxx, Xxxx & Xxxxx LLP, counsel for the Agent, with respect to such
matters as the Agent may reasonably require; such opinion may rely, as
to matters of fact, upon certificates of officers and directors of the
Brookline Parties delivered pursuant hereto or as such counsel may
reasonably request.
(4) A Blue Sky Memorandum from Xxxx Xxxxxx Xxxxxx Xxxxxxxx &
Xxxxxx relating to the offering, including Agent's participation
therein, and should be furnished to Agent with a copy thereof
addressed to Agent or upon which Xxxx Xxxxxx Xxxxxx Xxxxxxxx & Xxxxxx
shall state Agent may rely. The Blue Sky Memorandum will relate to the
necessity of obtaining or confirming exemptions, qualifications or the
registration of the common stock under applicable state securities
law.
(c) Concurrently with the execution of this Agreement, the Agent
shall receive a letter from Xxxxx Xxxxxxxx LLP, dated the date hereof and
addressed to the Agent, such letter (i) confirming that Xxxxx Xxxxxxxx LLP is a
firm of independent public accountants within the meaning of the 1933 Act and
the regulations promulgated thereunder, and stating in effect that in Xxxxx
Xxxxxxxx LLP's opinion the consolidated financial statements of the Mid-Tier
Holding Company included in the Prospectus comply as to form in all material
respects with the applicable accounting requirements of the 1933 Act and the
1934 Act and the related rules and regulations of the Commission thereunder;
(ii) stating in effect that, on the basis of certain agreed upon procedures (but
not an audit examination in accordance with generally accepted auditing
standards) consisting of a review (in accordance with Statement of Auditing
Standards No. 71) of the latest available unaudited consolidated interim
financial statements of the Mid-Tier Holding Company prepared by the Brookline
Parties, a reading of the minutes of the meetings of the Board of Directors,
Executive Committee and stockholders and Audit Committee of the Mid-Tier Holding
Company and the Bank and consultations with officers of the Mid-Tier Holding
Company and the Bank responsible for financial and accounting matters, nothing
came to their attention which caused them to believe that: (A) such unaudited
consolidated financial statements including any "Recent Developments" section in
the Prospectus are not in conformity with generally accepted accounting
principles applied on a basis substantially consistent with that of the audited
financial statements included in the Prospectus; or (B) during the period from
the date of the latest unaudited consolidated financial statements included in
the Prospectus to a specified date not more than five business days prior to the
date of the Prospectus, there was any material increase in borrowings (defined
as securities sold under agreements to repurchase and any other form of debt
other than deposits), or non-performing loans, special mention loans or decrease
in the deposits or loan allowance, total assets, stockholders' equity or there
was any change in common stock outstanding (other than for stock option plans)
at the date of such letter as compared with amounts shown in the latest
unaudited statement of condition included in the Prospectus or there was any
decrease in net income, non-interest income, provision for loan
22
losses or net income after provision or increase in non-interest expense of the
Bank for the period commencing immediately after the period covered by the
latest unaudited income statement included in the Prospectus and ended not more
than five business days prior to the date of the Prospectus as compared to the
corresponding period in the preceding year; and (iii) stating that, in addition
to the audit examination referred to in its opinion included in the Prospectus
and the performance of the procedures referred to in clause (ii) of this
subsection (c), they have compared with the general accounting records of the
Mid-Tier Holding Company, which are subject to the internal controls of the
accounting system of the Bank and other data prepared by the Brookline Parties
from accounting records, to the extent specified in such letter, such amounts
and/or percentages set forth in the Prospectus as the Agent may reasonably
request, and they have found such amounts and percentages to be in agreement
therewith (subject to rounding).
(d) At the Closing Date, the Agent shall receive a letter from Xxxxx
Xxxxxxxx LLP dated the Closing Date, addressed to the Agent, confirming the
statements made by its letter delivered by it pursuant to subsection (c) of this
Section 10, the "specified date" referred to in clause (ii)(B) thereof to be a
date specified in such letter, which shall not be more than three business days
prior to the Closing Date.
(e) At the Closing Date, counsel to the Agent shall have been
furnished with such documents and opinions as counsel for the Agent may require
for the purpose of enabling them to advise the Agent with respect to the
issuance and sale of the Common Stock as herein contemplated and related
proceedings, or in order to evidence the accuracy of any of the representations
and warranties, or the fulfillment of any of the conditions herein contained.
(f) At the Closing Date, the Agent shall receive a certificate of the
Chief Executive Officer and Chief Financial Officer of each of the Brookline
Parties, dated the Closing Date, to the effect that: (i) they have examined the
Registration Statement and at the time the Registration Statement became
authorized for final use, the Prospectus did not contain an untrue statement of
a material fact or omit to state a material fact necessary in order to make the
statements therein not misleading; (ii) there has not been, since the respective
dates as of which information is given in the Registration Statement, any
Material Adverse Effect otherwise than as set forth or contemplated in the
Registration Statement; (iii) the representations and warranties contained in
Section 6 of this Agreement are true and correct with the same force and effect
as though made at and as of the Closing Date; (iv) the Brookline Parties have
complied in all material respects with all material agreements and satisfied all
conditions on its part to be performed or satisfied at or prior to the Closing
Date including the conditions contained in this Section 10; (v) no stop order
has been issued or, to the best of their knowledge, is threatened, by the
Commission or any other governmental body; (vi) no order suspending the
Offering, the Conversion, the acquisition of all of the shares of the Bank by
the Holding Company, the transactions required under the Plan to consummate the
conversion or the effectiveness of the Prospectus has been issued and to the
best of their knowledge, no proceedings for any such purpose have been initiated
or threatened by the OTS, the Commission, or any other federal or state
authority; (vii) to the best of their knowledge, no person has sought to obtain
regulatory or judicial review of the action of the OTS in approving the Plan or
to enjoin the Conversion, and (viii) that the officers and directors of the
Brookline Parties have agreed to abide by the restrictions on the exercise of
options and sale of Common Stock set forth in Section 8(aa).
23
(g) At the Closing Date, the Agent shall receive a letter from RP
Financial, LC, dated as of the Closing Date, (i) confirming that said firm is
independent of the Brookline Parties and is experienced and expert in the area
of corporate appraisals, (ii) stating in effect that the Appraisal complies in
all material respects with the applicable requirements of the Conversion
Regulations, and (iii) further stating that its opinion of the aggregate pro
forma market value of the Brookline Parties, as converted, expressed in the
appraisal as most recently updated, remains in effect.
(h) None of the Brookline Parties shall have sustained, since the
date of the latest financial statements included in the Registration Statement
and Prospectus, any material loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by insurance, or from
any labor dispute or court or governmental action, order or decree, otherwise
than as set forth in the Registration Statement and the Prospectus, and since
the respective dates as of which information is given in the Registration
Statement and the Prospectus, there shall not have been any Material Adverse
Effect, is in the Agent's reasonable judgment sufficiently material and adverse
as to make it impracticable or inadvisable to proceed with the Offering or the
delivery of the Shares on the terms and in the manner contemplated in the
Prospectus.
(i) Prior to and at the Closing Date, in the reasonable opinion of
the Agent there shall have been no material adverse change in the financial
condition or in the earnings, business affairs or prospects of any of the
Brookline Parties independently, or the Brookline Parties taken as a whole, from
and as of the latest dates as of which such condition is set forth in the
Prospectus, except as referred to therein.
(j) At or prior to the Closing Date, the Agent shall receive (i) a
copy of the Conversion Application and a copy of the letter from the OTS
approving the Conversion Application, (ii) a copy of the order from the
Commission declaring the Registration Statement effective, (iii) a certified
copy of the certificate of incorporation of the Holding Company, (iv) a copy of
the letter from the OTS approving the Holding Company Application, (v) a
certificate from the FDIC evidencing the Bank's insurance of accounts, and (vi)
any other documents that Agent shall reasonably request.
(k) Subsequent to the date hereof, there shall not have occurred any
of the following: (i) a suspension or limitation in trading in securities
generally on the New York Stock Exchange or American Stock Exchange or in the
over-the-counter market, or quotations halted generally on the Nasdaq Stock
Market, or minimum or maximum prices for trading have been fixed, or maximum
ranges for prices for securities have been required by either of such exchanges
or the NASD or by order of the Commission or any other governmental authority
other than temporary trading halts or limitation (A) imposed as a result of
intraday changes in the Dow Xxxxx Industrial Average, (B) lasting no longer than
until the regularly scheduled commencement of trading on the next succeeding
business-day and (C) which when combined with all other such halts occurring
during the previous five (5) business days, total less than two (2); (ii) a
general moratorium on the operations of federally-insured financial institutions
or a general moratorium on the withdrawal of deposits from commercial banks or
other federally-insured financial institutions declared by either federal or
state authorities; or (iii) there shall not have occurred any material adverse
change in the financial markets in the United States or
24
elsewhere or any outbreak of hostilities or escalation thereof or other calamity
or crisis, including, without limitation, terrorist activities after the date
hereof, the effect of which, in the judgment of the Agent, is so material and
adverse as to make it impracticable to market the Shares or to enforce
contracts, including subscriptions or purchase orders, for the sale of the
Shares.
(l) All such opinions, certificates, letters and documents will be in
compliance with the provisions hereof only if they are reasonably satisfactory
in form and substance to the Agent and to counsel for the Agent. Any certificate
signed by an officer of the Mid-Tier Holding Company, the Holding Company or the
Bank and delivered to the Agent or to counsel for the Agent shall be deemed a
representation and warranty by the Mid-Tier Holding Company, the Holding Company
or the Bank, as the case may be, to the Agent as to the statements made therein.
SECTION 11. INDEMNIFICATION.
(a) The Brookline Parties jointly and severally agree to indemnify
and hold harmless the Agent, its officers, directors, agents, attorneys,
servants and employees and each person, if any, who controls the Agent within
the meaning of Section 15 of the 1933 Act or Section 20(a) of the 1934 Act,
against any and all loss, liability, claim, damage or expense whatsoever
(including but not limited to settlement expenses, subject to the limitation set
forth in the last sentence of subsection (c) below), joint or several, that the
Agent or any of such officers, directors, agents, attorneys, servants, employees
and controlling Persons (collectively, the "Related Persons") may suffer or to
which the Agent or the Related Persons may become subject under all applicable
federal and state laws or otherwise, and to promptly reimburse the Agent and any
Related Persons upon written demand for any reasonable expenses (including
reasonable fees and disbursements of counsel and Agent's time spent according to
normal hourly rates) incurred by the Agent or any Related Persons in connection
with investigating, preparing or defending any actions, proceedings or claims
(whether commenced or threatened) to the extent such losses, claims, damages,
liabilities or actions: (i) arise out of or are based upon any untrue statement
or alleged untrue statement of a material fact contained in the Registration
Statement (or any amendment or supplement thereto), the Prospectus (or any
amendment or supplement thereto), the Applications, or other instrument or
document of the Brookline Parties or based upon written information supplied by
any of the Brookline Parties filed in any state or jurisdiction to register or
qualify any or all of the Shares under the securities laws thereof
(collectively, the "Blue Sky Applications"), or any application or other
document, advertisement, or communication ("Sales Information") prepared, made
or executed by or on behalf of any of the Brookline Parties with its consent or
based upon information furnished by or on behalf of any of the Brookline
Parties, in order to qualify or register the Shares under the securities laws
thereof, (ii) arise out of or are based upon the omission or alleged omission to
state in any of the foregoing documents or information, a material fact required
to be stated therein or necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading; (iii) arise from
any theory of liability whatsoever relating to or arising from or based upon the
Registration Statement (or any amendment or supplement thereto), the Prospectus
(or any amendment or supplement thereto), the Applications, any Blue Sky
Applications or Sales Information or other documentation distributed in
connection with the Offerings; or (iv) result from any claims made with respect
to the accuracy, reliability and completeness of the records of
25
Eligible Account Holders and Supplemental Eligible Account Holders or Other
Members or for any denial or reduction of a subscription or order to purchase
Common Stock, whether as a result of a properly calculated allocation pursuant
to the Plan or otherwise, based upon such records; provided, however, that no
indemnification is required under this subsection (a) to the extent such losses,
claims, damages, liabilities or actions arise out of or are based upon any
untrue material statements or alleged untrue material statements in, or material
omission or alleged material omission from, the Registration Statement (or any
amendment or supplement thereto) or the Prospectus (or any amendment or
supplement thereto), the Applications, the Blue Sky Applications or Sales
Information or other documentation distributed in connection with the Conversion
made in reliance upon and in conformity with information furnished to the
Brookline Parties by the Agent or its representatives (including counsel) with
respect to the Agent expressly for use in the Registration Statement (or any
amendment or supplement thereto) or Prospectus (or any amendment or supplement
thereto) under the caption "The Conversion -- Plan of Distribution; Selling
Agent Compensation" except for information derived from the Prospectus. Provided
further, that the Brookline Parties will not be responsible for any loss,
liability, claim, damage or expense to the extent a court of competent
jurisdiction finds they result primarily from material oral misstatements by the
Agent to a purchaser of Shares which are not based upon information in the
Registration Statement or Prospectus, or from actions taken or omitted to be
taken by the Agent in bad faith or from the Agent's gross negligence or willful
misconduct and the Agent agrees to repay to the Brookline Parties any amounts
advanced to it by the Brookline Parties in connection with matters as to which
it is found by a court of competent jurisdiction not to be entitled to
indemnification hereunder.
(b) The Agent agrees to indemnify and hold harmless the Brookline
Parties, their directors and officers, agents, servants and employees and each
person, if any, who controls any of the Brookline Parties within the meaning of
Section 15 of the 1933 Act or Section 20(a) of the 1934 Act against any and all
loss, liability, claim, damage or expense whatsoever (including but not limited
to settlement expenses, subject to the limitation set forth in the last sentence
of subsection (c) below), joint or several, which they, or any of them, may
suffer or to which they, or any of them, may become subject under all applicable
federal and state laws or otherwise, and to promptly reimburse the Brookline
Parties and any such persons upon written demand for any reasonable expenses
(including out-of-pocket expenses, fees and disbursements of counsel) incurred
by them in connection with investigating, preparing or defending any actions,
proceedings or claims (whether commenced or threatened) to the extent such
losses, claims, damages, liabilities or actions arise out of or are based upon
any untrue statement or alleged untrue statement of a material fact contained in
the Registration Statement (or any amendment or supplement thereto), the
Applications or any Blue Sky Applications or Sales Information or are based upon
the omission or alleged omission to state in any of the foregoing documents a
material fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; provided, however, that the Agent's obligations under this Section
11(b) shall exist only if and only to the extent that such untrue statement or
alleged untrue statement was made in, or such material fact or alleged material
fact was omitted from, the Applications, Registration Statement (or any
amendment or supplement thereto) or the Prospectus (or any amendment or
supplement thereto) in reliance upon and in conformity with information
furnished to the Brookline Parties by the Agent or its representatives
(including counsel) expressly for use under the caption "The Conversion - Plan
of Distribution; Selling Agent Compensation."
26
(c) Each indemnified party shall give prompt written notice to each
indemnifying party of any action, proceeding, claim (whether commenced or
threatened), or suit instituted against it in respect of which indemnity may be
sought hereunder, but failure to so notify an indemnifying party shall not
relieve it from any liability which it may have on account of this Section 11,
Section 12 or otherwise, unless the failure to give such notice promptly results
in material prejudice to the indemnifying party. An indemnifying party may
participate at its own expense in the defense of such action. In addition, if it
so elects within a reasonable time after receipt of such notice, an indemnifying
party, jointly with any other indemnifying parties receiving such notice, may
assume the defense of such action with counsel chosen by it reasonably
acceptable to the indemnified parties that are defendants in such action, unless
such indemnified parties reasonably object to such assumption on the ground that
there may be legal defenses available to them that are different from or in
addition to those available to such indemnifying party. If an indemnifying party
assumes the defense of such action, the indemnifying parties shall not be liable
for any fees and expenses of counsel for the indemnified parties incurred
thereafter in connection with such action, proceeding or claim, other than
reasonable costs of investigation. In no event shall the indemnifying parties be
liable for the fees and expenses of more than one separate firm of attorneys
(unless an indemnified party or parties shall have reasonably concluded that
there may be defenses available to it or them which are different from or in
addition to those of other indemnified parties) for all indemnified parties in
connection with any one action, proceeding or claim or separate but similar or
related actions, proceedings or claims in the same jurisdiction arising out of
the same general allegations or circumstances. No indemnifying party, shall be
liable for any settlement of any action, proceeding or suit, which settlement is
effected without its prior written consent. The Brookline Parties shall not,
without the written consent of the Agent, settle or compromise any claim against
them based upon circumstances giving rise to an indemnification claim against
the Brookline Parties hereunder unless such settlement or compromise provides
that the Agent and the other indemnified parties shall be unconditionally and
irrevocably released from all liability in respect to such claim.
(d) The agreements contained in this Section 11 and in Section 12
hereof and the representations and warranties of the Brookline Parties set forth
in this Agreement shall remain operative and in full force and effect regardless
of (i) any investigation made by or on behalf of the Agent or its officers,
directors, controlling persons, agents, attorneys, servants or employees or by
or on behalf of any of the Brookline Parties or any officers, directors,
controlling persons, agents, attorneys , servants or employees of any of the
Brookline Parties; (ii) delivery of and payment hereunder for the Shares; or
(iii) any termination of this Agreement. Notwithstanding the prior sentence,
Sections 11 and 12 hereof are subject to and limited by Section 23A of the
Federal Reserve Act, as applicable.
SECTION 12. CONTRIBUTION.
(a) In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in Section 11 is due in
accordance with its terms but is for any found in a final judgment by a court to
be unavailable from the Brookline Parties or the Agent, the Brookline Parties
and the Agent shall contribute to the aggregate losses, claims, damages and
liabilities of the nature contemplated by such indemnification (including any
investigation, legal and other expenses incurred in connection therewith and any
amount paid in
27
settlement of any action, suit, or proceeding of any claims asserted, but after
deducting any contribution received by the Brookline Parties or the Agent from
persons other than the other party thereto, who may also be liable for
contribution) in such proportion so that (i) the Agent is responsible for that
portion represented by the percentage that the fees paid to the Agent pursuant
to Section 4 of this Agreement (not including expenses) ("Agent's Fees"), less
any portion of Agent's Fees paid by Agent to Assisting Brokers, bear to the
total proceeds received by the Brookline Parties from the sale of the Shares in
the Offering, net of all expenses of the Offering, except Agent's fees and (ii)
the Brookline Parties shall be responsible for the balance. If, however, the
allocation provided above is not permitted by applicable law or if the
indemnified party failed to give the notice required under Section 11 above,
then each indemnifying party shall contribute to such amount paid or payable to
such indemnified party in such proportion as is appropriate to reflect not only
such relative fault of the Brookline Parties on the one hand and the Agent on
the other in connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities (or actions, proceedings or claims in
respect thereof), but also the relative benefits received by the Brookline
Parties on the one hand and the Agent on the other from the Offering, as well as
any other relevant equitable considerations. The relative benefits received by
the Brookline Parties on the one hand and the Agent on the other hand shall be
deemed to be in the same proportion as the total proceeds from the Offering,
except Agent's fees, net of all expenses of the Offering, received by the
Brookline Parties bear, with respect to the Agent, to the total fees (not
including expenses) received by the Agent less the portion of such fees paid by
the Agent to Assisting Brokers. The relative fault shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Brookline Parties on the one hand or the
Agent on the other and the parties relative intent, good faith, knowledge,
access to information and opportunity to correct or prevent such statement or
omission. The Brookline Parties and the Agent agree that it would not be just
and equitable if contribution pursuant to this Section 12 were determined by
pro-rata allocation or by any other method of allocation which does not take
account of the equitable considerations referred to above in this Section 12.
The amount paid or payable by an indemnified party as a result of the losses,
claims, damages or liabilities (or action, proceedings or claims in respect
thereof) referred to above in this Section 12 shall be deemed to include any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action, proceeding or claim.
It is expressly agreed that the Agent shall not be liable for any loss,
liability, claim, damage or expense or be required to contribute any amount
which in the aggregate exceeds the amount paid (excluding reimbursable expenses)
to the Agent under this Agreement less the portion of such fees paid by the
Agent to Assisting Brokers. It is understood and agreed that the above-stated
limitation on the Agent's liability is essential to the Agent and that the Agent
would not have entered into this Agreement if such limitation had not been
agreed to by the parties to this Agreement. No person found guilty of any
fraudulent misrepresentation (within the meaning of Section 11(f) of the 0000
Xxx) shall be entitled to contribution with respect to any loss or liability
arising from such misrepresentation from any person who was not found guilty of
such fraudulent misrepresentation. The duties, obligations and liabilities of
the Brookline Parties and the Agent under this Section 12 and under Section 11
shall be in addition to any duties, obligations and liabilities which the
Brookline Parties and the Agent may otherwise have. For purposes of this Section
12, each of the Agent's and the Brookline Parties' officers, directors and,
controlling persons within the meaning of the 1933 Act
28
and the 1934 Act shall have the same rights to contribution as the Brookline
Parties and the Agent. Any party entitled to contribution, promptly after
receipt of notice of commencement of any action, suit, claim or proceeding
against such party in respect of which a claim for contribution may be made
against another party under this Section 12, will notify such party from whom
contribution may be sought, but the omission to so notify such party shall not
relieve the party from whom contribution may be sought from any other obligation
it may have hereunder or otherwise than under this Section 12.
SECTION 13. SURVIVAL.
(a) All representations, warranties and indemnities and other
statements contained in this Agreement (and in Paragraph 11 of the Letter
Agreement), or contained in certificates of officers of the Brookline Parties or
the Agent submitted pursuant hereto, shall remain operative and in full force
and effect, regardless of any termination or cancellation of this Agreement or
any investigation made by or on behalf of the Agent or its controlling persons,
or by or on behalf of the Brookline Parties and shall survive the issuance of
the Shares, and any legal representative, successor or assign of the Agent, any
of the Brookline Parties, and any indemnified person shall be entitled to the
benefit of the respective agreements, indemnities, warranties and
representations.
(b) The provisions of Paragraph 10 of the Letter Agreement,
"Availability of `Stars' Program," shall survive the issuance of the Shares (but
not any termination or cancellation of this Agreement) for a period of one (1)
year, and any legal representative, successor or assign of the Agent, and any of
the Brookline Parties shall be entitled during such period to the benefit of the
agreements contained therein.
SECTION 14. TERMINATION. Agent may terminate this Agreement by giving the
notice indicated below in this Section at any time after this Agreement becomes
effective as follows:
(a) In the event (i) the Plan is abandoned or terminated by the
Holding Company; (ii) the Holding Company fails to consummate the sale of the
minimum number of Shares prior to March 31, 2003 in accordance with the
provisions of the Plan or as required by the Conversion Regulations and
applicable law; or (iii) immediately prior to commencement of the Offering, the
Agent terminates this relationship because in its opinion, which shall have been
formed in good faith after reasonable determination and consideration of all
relevant factors, there has been a failure to satisfactorily disclose all
relevant information in the Prospectus or the existence of market conditions
which might render the sale of the Shares inadvisable, this Agreement shall
terminate and the Brookline Parties shall refund to each person who has
subscribed for or ordered any of the Shares the full amount which it may have
received from such person, together with interest in accordance with Section 3
hereof and any such termination shall be without liability of any party to any
other party except as otherwise provided in Sections 3, 4, 9, 11 and 12 hereof
and Paragraph 11 of the Letter Agreement, "Indemnification."
(b) If any of the conditions specified in Section 10 hereof shall not
have been fulfilled when and as required by this Agreement, or by March 31,
2003, or waived in writing by the Agent, this Agreement and all of the Agent's
obligations hereunder may be canceled by the Agent by notifying the Bank of such
cancellation in writing at any time at or prior to the Closing
29
Date, and any such cancellation shall be without liability of any party to any
other party except as otherwise provided in Sections 3, 4, 9, 11 and 12 hereof
and Paragraph 11 of the Letter Agreement, "Indemnification."
(c) If Agent elects to terminate this Agreement as provided in this
Section, the Mid-Tier Holding Company and the MHC shall be notified by the Agent
as provided in Section 15 hereof.
(d) If this Agreement is terminated in accordance with the provisions
of this Agreement, the Agent shall retain the advisory and management fee paid
to it pursuant to Section 4 and the Brookline Parties shall reimburse the Agent
for any of its other actual, accountable, reasonable out-of-pocket expenses
pursuant to Section 9, including without limitation, communication, legal and
travel expenses.
SECTION 15. NOTICES. All notices and other communications hereunder shall
be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to Agent shall be
directed to Xxxx, Xxxx & Co. LLC, 000 Xxxx Xxxxxx, Xxxxx 000, Xxxx Xxxxxx, XX
00000, Attention: Xx. Xxxxxxxx Xxxxxx, Director (with a copy to Xxxxx, Xxxx &
Xxxxx LLP, Xxx Xxxx Xxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000 (before May 28,
2002), and 000 Xxxxxxx Xxxxxxxxx, Xxxxxx, XX 00000 (after May 28, 2002),
Attention: Xxxxx Xxxxxxxxx Xxxxx, Esq.); notices to the Brookline Parties shall
be directed to Brookline Bancorp, Inc., 000 Xxxxxxxxxx Xxxxxx, Xxxxxxxxx, XX
00000-0000, Attention: Xxxxxxx X. Xxxxxxx, Xx., President and Chief Executive
Officer (with a copy to Xxxx Xxxxxx Xxxxxx Xxxxxxxx & Xxxxxx, 0000 Xxxxxxxxx
Xxxxxx, X.X., Xxxxxxxxxx, X.X. 00000, Attention: Xxxxxx X. Xxxxxxxx, Esq.)
SECTION 16. PARTIES. This Agreement shall inure to the benefit of and be
binding upon the Agent and the Brookline Parties, and their respective
successors. Nothing expressed or mentioned in this Agreement is intended or
shall be construed to give any person, firm or corporation, other than the
parties hereto and their respective successors and the controlling persons and
officers and directors referred to in Sections 11 and 12 and their heirs and
legal representatives, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provisions herein contained. It is understood
and agreed that this Agreement is the exclusive agreement among the parties,
supersedes any prior Agreement among the parties and may not be varied except by
a writing signed by all parties, except for Paragraphs 4, 10, 11 and 17 of the
Letter Agreement, which are not hereby superseded.
SECTION 17. PARTIAL INVALIDITY. In the event that any term, provision or
covenant herein or the application thereof to any circumstances or situation
shall be invalid or unenforceable, in whole or in part, the remainder hereof and
the application of said term, provision or covenant to any other circumstance or
situation shall not be affected thereby, and each term, provision or covenant
herein shall be valid and enforceable to the full extent permitted by law.
SECTION 18. CONSTRUCTION AND WAIVER OF JURY TRIAL. This Agreement shall be
construed in accordance with the laws of the State of New York. EACH OF THE
BROOKLINE PARTIES AND THE AGENT WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION,
PROCEEDING, CLAIM OR
30
COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) RELATED TO OR
ARISING OUT OF THIS AGREEMENT.
[REST OF PAGE INTENTIONALLY LEFT BLANK]
31
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to us a counterpart hereof, whereupon this instrument
along with all counterparts will become a binding agreement between you and us
in accordance with its terms.
Very truly yours,
BROOKLINE BANCORP, MHC
By:
------------------------------------------
Xxxxxxx X. Xxxxxxx, Xx.
President and Chief Executive Officer
BROOKLINE BANCORP, INC.
By:
------------------------------------------
Xxxxxxx X. Xxxxxxx, Xx.
President and Chief Executive Officer
BROOKLINE BANCORP, INC. (New)
By:
------------------------------------------
Xxxxxxx X. Xxxxxxx, Xx.
President and Chief Executive Officer
BROOKLINE SAVINGS BANK
By:
------------------------------------------
Xxxxxxx X. Xxxxxxx, Xx.
President and Chief Executive Officer
The foregoing Agency Agreement is
hereby confirmed and accepted as
of the date first set forth above.
XXXX, XXXX & CO., LLC
By:
-----------------------------
Xxxxxxxx X. Xxxxxx
First Vice President, Corporate Finance
32
EXHIBIT B
BROOKLINE BANCORP, INC.
SELECTED DEALER AGREEMENT
[____________, 2002
Xxxx, Xxxx & Co., LLC
000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
Gentlemen:
1. GENERAL. We understand that Xxxx, Xxxx & Co., LLC ("Xxxx Xxxx") is
entering into this Agreement with us and other firms who may be offered the
right to sell, on a best efforts basis, a portion of the securities of Brookline
Bancorp, Inc. ("the Company") being distributed to the public. The terms and
conditions of this Agreement shall be applicable to the public offering of the
Company's common stock ("Securities") wherein Xxxx Xxxx is responsible for
managing or otherwise implementing the sale of the Securities by selected
dealers ("Selected Dealers"). The offering of Securities by us as a Selected
Dealer is hereinafter called the "Offering." The term "Prospectus" means the
prospectus, together with the prospectus supplement, if any, relating to the
Offering of Securities.
2. CONDITIONS OF OFFERING, ACCEPTANCE AND PURCHASE. The Offering shall be
subject to delivery of the Securities and their acceptance by you, may be
subject to the approval of all legal matters by counsel and the satisfaction of
other conditions, and may be made on the basis of reservation of Securities or
an allotment against subscription. You shall advise us by telegram, telex,
facsimile, e-mail, or other form of written communication ("Written
Communication") of the particular method and supplementary terms and conditions
(including, without limitation, the information as to the offering date referred
to in Section 3(b)) of the Offering. To the extent such supplementary terms and
conditions are inconsistent with any provision herein, such terms and conditions
shall supersede any such provision. We agree you shall have full authority to
take such actions as you may deem advisable in respect of all matters pertaining
to the Offering. You shall be under no liability to us except for lack of good
faith and for obligations expressly assumed by you in this Agreement. Unless
otherwise indicated in any such Written Communication, acceptances and other
communications by us with respect to the Offering should be sent to Xxxx Xxxx.
You reserve the right to reject any acceptance in whole or in part. We agree
that at any time or times prior to the termination of this Agreement we will,
upon your request, report to you each indication of interest: investor, state of
residence, face amount of Securities and whether the investor is retail or
institutional.
Payment for Securities sold by us is to be made at such office as you may
designate, at the public offering price, or, if you shall so advise us, at such
price less the concession to dealers
33
as set forth or indicated in a Written Communication, on such date as you shall
determine, on three (3) days prior notice to us, by wire transfer to a Xxxx Xxxx
account, against delivery of certificates or other forms evidencing such
Securities. If payment is made for Securities sold by us at the public offering
price, the concession to which we shall be entitled shall be paid to us upon
termination of the provisions of Section 3(b) with respect to such Securities.
Unless we promptly give you written instructions otherwise, if transactions in
the Securities may be settled through the facilities of The Depository Trust
Company, delivery of Securities sold by us shall be made through such facilities
if we are a member, or if we are not a member, settlement may be made through
our ordinary correspondent who is a member.
3. REPRESENTATIONS, WARRANTIES AND AGREEMENTS.
(a) PROSPECTUS. You shall provide us with such number of copies of
each prospectus and any supplement thereto relating to each Offering as we may
reasonably request for the purposes contemplated by the Securities Act of 1933,
as amended (the "Securities Act") and the Securities Exchange Act of 1934 (the
"Exchange Act") and the applicable Rules and Regulations of the Securities and
Exchange Commission thereunder. We represent that we are familiar with Rule
15c2-8 under the Exchange Act relating to the distribution of prospectuses and
agree that we shall comply therewith. We agree to keep an accurate record of our
distribution (including persons and related states of residence to whom sent) of
copies of the prospectus (or any amendment or supplement to thereof), and
promptly upon request by you, to bring all subsequent changes to the attention
of anyone to whom such material shall have been furnished. We agree to furnish
to persons who receive a confirmation of sale a copy of the final version of the
prospectus (including any supplement) filed pursuant to Rule 424(b) or Rule
424(c) under the Securities Act. We agree that we shall rely upon no statements
whatsoever, written or oral, other than the statements in the Prospectus
delivered to us by you. We understand that no Selected Dealer is authorized to
act as an agent for you or each other. We shall not be authorized by the issuer
or other seller of Securities offered pursuant to a Prospectus or by you to give
any information or to make any representation not contained in the Prospectus in
connection with the sale of such Securities.
(b) OFFER AND SALE TO THE PUBLIC. With respect to the Offering of
Securities, you shall inform us by a Written Communication of the public
offering price, the selling concession, the reallowance (if any) to dealers, and
the time when we may commence selling Securities to the public. After such time,
you may change the selling concession, and the reallowance to dealers. With
respect to the Offering of Securities, until the provisions of this Section 3(b)
shall be terminated pursuant to Section 4, we agree to offer Securities to the
public only at the public offering price, except that if a reallowance is in
effect, a reallowance from the public offering price not in excess of such
reallowance may be allowed as consideration for services rendered in
distribution to dealers who are actually engaged in the investment banking or
securities business, who execute the written agreement prescribed by Rule 2740
of the Rules of Conduct of the National Association of Securities Dealers, Inc.
(the "NASD") and who are members in good standing of the NASD.
(c) OPEN MARKET TRANSACTIONS. We agree to abide by Regulation M under
the Exchange Act and we agree not to bid for, purchase, attempt to purchase, or
sell, directly or indirectly, any Securities, any other Reference Securities (as
defined in Regulation M) of the
34
issuer, or any other securities of such issuer as you may designate, except as
brokers pursuant to unsolicited orders and as otherwise provided in this
Agreement. We agree not to effect, or attempt to induce others to effect,
directly or indirectly, any transactions in or relating to any stock of the
issuer, except to the extent permitted by Rule 101 of Regulation M under the
Exchange Act.
(d) NASD. We represent that we are actually engaged in the investment
banking or securities business and we are a member in good standing of the NASD.
We agree that in making sales of the Securities, we shall comply with all
applicable Rules of the NASD, including, without limitation, the NASD's
Interpretation with Respect to Free-Riding and Withholding and Rule 2740 of the
Conduct Rules.
(e) BLUE SKY LAWS. Upon application to you, you shall inform us as to
the jurisdictions in which you believe the Securities have been qualified for
sale or are exempt under the respective securities or "blue sky" laws of such
jurisdictions. We understand and agree that compliance with the securities or
"blue sky" laws in each jurisdiction in which we shall offer or sell any of the
Securities shall be our sole responsibility and that you assume no
responsibility or obligations as to the eligibility of the Securities for sale
or our right to sell the Securities in any jurisdiction.
(f) COMPLIANCE WITH LAW. We agree that, in selling Securities
pursuant to the Offering (which agreement shall also be for the benefit of the
issuer or other seller of such Securities), we shall comply with the applicable
provisions of the Securities Act and the Exchange Act, the applicable Rules and
Regulations of the Securities and Exchange Commission thereunder, the applicable
Rules and Regulations of the NASD, and the applicable Rules and Regulations of
any securities exchange having jurisdiction over the Offering. You shall have
full authority to take such action as you may deem advisable in respect of all
matters pertaining to the Offering. You shall not be under any liability to us,
except for lack of good faith and for obligations expressly assumed by you in
this Agreement; provided, however, that nothing in this sentence shall be deemed
to relieve you from any liability imposed by the Securities Act. In connection
with the Offering, we agree to pay our proportionate share of any claim, demand,
or liability asserted against us, and the other Selected Dealers or any of them,
or against you or the Selected Dealers, if any, based on any claim that such
Selected Dealers or any of them constitute an association, unincorporated
business, or other separate entity, including in each case our proportionate
share of any expense incurred in defending against any such claim, demand, or
liability.
4. TERMINATION; SUPPLEMENTS AND AMENDMENTS. We may supplement this
Agreement or amend it by written notice thereof to you, and any such supplement
or amendment to this Agreement shall be effective with respect to the Offering
after the date of such supplement or amendment. Each reference to "this
Agreement" or "the Agreement" herein shall, as appropriate, be to this Agreement
as so amended and supplemented. This Agreement shall be binding on, and inure to
the benefit of, the parties hereto, and the respective successors and assigns of
each. Any notice from us to you shall be deemed to have been duly given if
mailed, telephoned, or sent by facsimile to you at the address to which this
Agreement is delivered. Unless earlier terminated by us, this Agreement shall
terminate upon the closing of the Offering. We may terminate this Agreement or
any provision hereof at any time by written notice to you.
35
Our obligations hereunder are subject to the successful completion of the
Offering.
5. SUCCESSORS AND ASSIGNS. This Agreement shall be binding on, and inure
to the benefit of, the parties hereto and other persons specified or indicated
in Section 1, and the respective successors and assigns of each of them.
6. GOVERNING LAW. This Agreement and the terms and conditions set forth
herein with respect to the Offering, together with such supplementary terms and
conditions with respect to such Offering as may be contained in any Written
Communication from you to us in connection therewith, shall be governed by, and
construed in accordance with, the laws of the State of New York.
By signing this Agreement we confirm that our subscription to, or our
acceptance of any reservation of, any Securities pursuant to the Offering shall
constitute (i) acceptance of and agreement to the terms and conditions of this
Agreement (as supplemented and amended pursuant to Section 4) together with and
subject to any supplementary terms and conditions contained in any Written
Communication from you in connection with such Offering, all of which shall
constitute a binding agreement between us and you, (ii) confirmation that our
representations and warranties set forth in Section 3 are true and correct at
that time, and (iii) confirmation that our agreements set forth in Sections 2
and 3 have been and shall be fully performed by us to the extent and at the
times required thereby.
Enclosed is a duplicate copy of this Agreement, one copy to be retained by
each of our firms.
Very truly yours,
----------------------------------
(Name of Firm)
By:
-------------------------------
Its:
-----------------------------
Confirmed, as of _______ ____, 2002
XXXX, XXXX & CO., LLC
By:
---------------------------------
Execution Date:
------------------------
36
BROOKLINE BANCORP, INC.
SELECTED DEALER AGREEMENT
[____________, 2002
Xxxx, Xxxx & Co., LLC
000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
Gentlemen:
1. GENERAL. We understand that Xxxx, Xxxx & Co., LLC ("Xxxx Xxxx") is
entering into this Agreement with us and other firms who may be offered the
right to sell, on a best efforts basis, a portion of the securities of Brookline
Bancorp, Inc. ("the Company") being distributed to the public. The terms and
conditions of this Agreement shall be applicable to the public offering of the
Company's common stock ("Securities") wherein Xxxx Xxxx is responsible for
managing or otherwise implementing the sale of the Securities by selected
dealers ("Selected Dealers"). The offering of Securities by us as a Selected
Dealer is hereinafter called the "Offering." The term "Prospectus" means the
prospectus, together with the prospectus supplement, if any, relating to the
Offering of Securities.
2. CONDITIONS OF OFFERING, ACCEPTANCE AND PURCHASE. The Offering shall be
subject to delivery of the Securities and their acceptance by you, may be
subject to the approval of all legal matters by counsel and the satisfaction of
other conditions, and may be made on the basis of reservation of Securities or
an allotment against subscription. You shall advise us by telegram, telex,
facsimile, e-mail, or other form of written communication ("Written
Communication") of the particular method and supplementary terms and conditions
(including, without limitation, the information as to the offering date referred
to in Section 3(b)) of the Offering. To the extent such supplementary terms and
conditions are inconsistent with any provision herein, such terms and conditions
shall supersede any such provision. We agree you shall have full authority to
take such actions as you may deem advisable in respect of all matters pertaining
to the Offering. You shall be under no liability to us except for lack of good
faith and for obligations expressly assumed by you in this Agreement. Unless
otherwise indicated in any such Written Communication, acceptances and other
communications by us with respect to the Offering should be sent to Xxxx Xxxx.
You reserve the right to reject any acceptance in whole or in part. We agree
that at any time or times prior to the termination of this Agreement we will,
upon your request, report to you each indication of interest: investor, state of
residence, face amount of Securities and whether the investor is retail or
institutional.
Payment for Securities sold by us is to be made at such office as you may
designate, at the public offering price, or, if you shall so advise us, at such
price less the concession to dealers as set forth or indicated in a Written
Communication, on such date as you shall determine, on three (3) days prior
notice to us, by wire transfer to a Xxxx Xxxx account, against delivery of
certificates or other forms evidencing such Securities. If payment is made for
Securities sold by us at the public offering price, the concession to which we
shall be entitled shall be paid to us upon termination of the provisions of
Section 3(b) with respect to such Securities. Unless we promptly give you
written instructions otherwise, if transactions in the Securities may be settled
through the facilities of The Depository Trust Company, delivery of Securities
sold by us shall be made through such facilities if we are a member, or if we
are not a member, settlement may be made through our ordinary correspondent who
is a member.
3. REPRESENTATIONS, WARRANTIES AND AGREEMENTS.
(a) PROSPECTUS. You shall provide us with such number of copies of
each prospectus and any supplement thereto relating to each Offering as we may
reasonably request for the purposes contemplated by the Securities Act of 1933,
as amended (the "Securities Act") and the Securities Exchange Act of 1934 (the
"Exchange Act") and the applicable Rules and Regulations of the Securities and
Exchange Commission thereunder. We represent that we are familiar with Rule
15c2-8 under the Exchange Act relating to the distribution of prospectuses and
agree that we shall comply therewith. We agree to keep an accurate record of our
distribution (including persons and related states of residence to whom sent) of
copies of the prospectus (or any amendment or supplement to thereof), and
promptly upon request by you, to bring all subsequent changes to the attention
of anyone to whom such material shall have been furnished. We agree to furnish
to persons who receive a confirmation of sale a copy of the final version of the
prospectus (including any supplement) filed pursuant to Rule 424(b) or Rule
424(c) under the Securities Act. We agree that we shall rely upon no statements
whatsoever, written or oral, other than the statements in the Prospectus
delivered to us by you. We understand that no Selected Dealer is authorized to
act as an agent for you or each other. We shall not be authorized by the issuer
or other seller of Securities offered pursuant to a Prospectus or by you to give
any information or to make any representation not contained in the Prospectus in
connection with the sale of such Securities.
(b) OFFER AND SALE TO THE PUBLIC. With respect to the Offering of
Securities, you shall inform us by a Written Communication of the public
offering price, the selling concession, the reallowance (if any) to dealers, and
the time when we may commence selling Securities to the public. After such time,
you may change the selling concession, and the reallowance to dealers. With
respect to the Offering of Securities, until the provisions of this Section 3(b)
shall be terminated pursuant to Section 4, we agree to offer Securities to the
public only at the public offering price, except that if a reallowance is in
effect, a reallowance from the public offering price not in excess of such
reallowance may be allowed as consideration for services rendered in
distribution to dealers who are actually engaged in the investment banking or
securities business, who execute the written agreement prescribed by Rule 2740
of the Rules of Conduct of the National Association of Securities Dealers, Inc.
(the "NASD") and who are members in good standing of the NASD.
(c) OPEN MARKET TRANSACTIONS. We agree to abide by Regulation M under
the Exchange Act and we agree not to bid for, purchase, attempt to purchase, or
sell, directly or indirectly, any Securities, any other Reference Securities (as
defined in Regulation M) of the issuer, or any other securities of such issuer
as you may designate, except as brokers pursuant to unsolicited orders and as
otherwise provided in this Agreement. We agree not to effect, or
-2-
attempt to induce others to effect, directly or indirectly, any transactions in
or relating to any stock of the issuer, except to the extent permitted by Rule
101 of Regulation M under the Exchange Act.
(d) NASD. We represent that we are actually engaged in the investment
banking or securities business and we are a member in good standing of the NASD.
We agree that in making sales of the Securities, we shall comply with all
applicable Rules of the NASD, including, without limitation, the NASD's
Interpretation with Respect to Free-Riding and Withholding and Rule 2740 of the
Conduct Rules.
(e) BLUE SKY LAWS. Upon application to you, you shall inform us as to
the jurisdictions in which you believe the Securities have been qualified for
sale or are exempt under the respective securities or "blue sky" laws of such
jurisdictions. We understand and agree that compliance with the securities or
"blue sky" laws in each jurisdiction in which we shall offer or sell any of the
Securities shall be our sole responsibility and that you assume no
responsibility or obligations as to the eligibility of the Securities for sale
or our right to sell the Securities in any jurisdiction.
(f) COMPLIANCE WITH LAW. We agree that, in selling Securities
pursuant to the Offering (which agreement shall also be for the benefit of the
issuer or other seller of such Securities), we shall comply with the applicable
provisions of the Securities Act and the Exchange Act, the applicable Rules and
Regulations of the Securities and Exchange Commission thereunder, the applicable
Rules and Regulations of the NASD, and the applicable Rules and Regulations of
any securities exchange having jurisdiction over the Offering. You shall have
full authority to take such action as you may deem advisable in respect of all
matters pertaining to the Offering. You shall not be under any liability to us,
except for lack of good faith and for obligations expressly assumed by you in
this Agreement; provided, however, that nothing in this sentence shall be deemed
to relieve you from any liability imposed by the Securities Act. In connection
with the Offering, we agree to pay our proportionate share of any claim, demand,
or liability asserted against us, and the other Selected Dealers or any of them,
or against you or the Selected Dealers, if any, based on any claim that such
Selected Dealers or any of them constitute an association, unincorporated
business, or other separate entity, including in each case our proportionate
share of any expense incurred in defending against any such claim, demand, or
liability.
4. TERMINATION; SUPPLEMENTS AND AMENDMENTS. We may supplement this
Agreement or amend it by written notice thereof to you, and any such supplement
or amendment to this Agreement shall be effective with respect to the Offering
after the date of such supplement or amendment. Each reference to "this
Agreement" or "the Agreement" herein shall, as appropriate, be to this Agreement
as so amended and supplemented. This Agreement shall be binding on, and inure to
the benefit of, the parties hereto, and the respective successors and assigns of
each. Any notice from us to you shall be deemed to have been duly given if
mailed, telephoned, or sent by facsimile to you at the address to which this
Agreement is delivered. Unless earlier terminated by us, this Agreement shall
terminate upon the closing of the Offering. We may terminate this Agreement or
any provision hereof at any time by written notice to you. Our obligations
hereunder are subject to the successful completion of the Offering.
-3-
5. SUCCESSORS AND ASSIGNS. This Agreement shall be binding on, and inure
to the benefit of, the parties hereto and other persons specified or indicated
in Section 1, and the respective successors and assigns of each of them.
6. GOVERNING LAW. This Agreement and the terms and conditions set forth
herein with respect to the Offering, together with such supplementary terms and
conditions with respect to such Offering as may be contained in any Written
Communication from you to us in connection therewith, shall be governed by, and
construed in accordance with, the laws of the State of New York.
By signing this Agreement we confirm that our subscription to, or our
acceptance of any reservation of, any Securities pursuant to the Offering shall
constitute (i) acceptance of and agreement to the terms and conditions of this
Agreement (as supplemented and amended pursuant to Section 4) together with and
subject to any supplementary terms and conditions contained in any Written
Communication from you in connection with such Offering, all of which shall
constitute a binding agreement between us and you, (ii) confirmation that our
representations and warranties set forth in Section 3 are true and correct at
that time, and (iii) confirmation that our agreements set forth in Sections 2
and 3 have been and shall be fully performed by us to the extent and at the
times required thereby.
Enclosed is a duplicate copy of this Agreement, one copy to be retained by
each of our firms.
Very truly yours,
------------------------------------
(Name of Firm)
By:
--------------------------------
Its:
--------------------------------
Confirmed, as of _______ ____, 2002
XXXX, XXXX & CO., LLC
By:
-----------------------------------
Execution Date:
-----------------------
-4-
