EXHIBIT 1.1
NORTHFIELD BANCORP, INC.
382,500 TO 595,125 SHARES
COMMON STOCK
(PAR VALUE $.01 PER SHARE)
$10.00 PER SHARE
SALES AGENCY AGREEMENT
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Trident Securities, Inc.
4601 Six Forks Road, Suite 400
Raleigh, North Carolina 27609
Ladies and Gentlemen:
Northfield Bancorp, Inc., a Maryland corporation (the "Company"), and
Northfield Federal Savings, a federally chartered and insured mutual savings
bank (the "Bank"), hereby confirm, as of [ ], 1998, their respective agreements
with Trident Securities, Inc. ("Trident"), a broker-dealer registered with the
Securities and Exchange Commission ("Commission") and a member of the National
Association of Securities Dealers, Inc. ("NASD"), as follows:
1. Introductory. The Bank intends to convert from a federally chartered
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mutual savings bank to a federally chartered stock savings bank as a wholly
owned subsidiary of the Company (together with the Offerings, as defined below,
and the issuance of shares of common stock of the Bank to the Company, the
"Conversion") pursuant to a plan of conversion adopted on December 17, 1997 (the
"Plan"). In accordance with the Plan, the Company is offering shares of its
common stock, par value $0.01 per share (the "Shares" and the "Common Stock"),
pursuant to nontransferable subscription rights in a subscription offering (the
"Subscription Offering") to certain depositors and borrowers of the Bank and to
the Bank's tax-qualified employee benefit plans (i.e., the Bank's Employee Stock
Ownership Plan (the "ESOP")). Concurrently with the Subscription Offering,
shares of the Common Stock not sold in the Subscription Offering are being
offered to the general public in a community offering, with preference being
given to natural persons residing in Baltimore County, Maryland (the "Bank's
Local Community") (the "Community Offering", together with the Subscription
Offering, the "Offerings"), subject to the right of the Company and the Bank, in
their sole discretion, to reject orders in the Community Offering in whole or in
part. In the Offerings, the Company is offering between 382,500 and 517,500
Shares, with the possibility of offering up to 595,125 Shares without a
resolicitation of subscribers, as contemplated by Title 12 of the Code of
Federal Regulations, Part 563b. No Eligible Account Holder, Supplemental
Eligible Account Holder or Other Member may purchase in their capacity as such
more than an amount equal to $125,000 of Common Stock in the Subscription
Offering. No person, individually or together with associates of and persons
acting in concert with such person, may purchase more than $125,000 of Common
Stock in the Community Offering. No person or entity, together with associates
or persons acting in concert, may purchase more than the lesser of $225,000 or
5% of the Shares issued.
Trident Securities, Inc.
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The Company and the Bank have been advised by Trident that Trident will
utilize its best efforts in assisting the Company and the Bank with the sale of
the Shares in the Offerings and, if deemed necessary by the Company, in a
syndicated community offering. Prior to the execution of this Agreement, the
Company has delivered to Trident the Prospectus, dated May [ ], 1998 (as
hereinafter defined), and all supplements thereto to be used in the Offerings.
Such Prospectus contains information with respect to the Company, the Bank and
the Shares.
2. Representations and Warranties.
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(a) The Company and the Bank jointly and severally represent and
warrant to Trident that:
(i) The Company has filed with the Commission a registration
statement, including exhibits and an amendment or amendments thereto,
on Form S-1 (No. [ ]), including a Prospectus relating to the
Offerings, for the registration of the Shares under the Securities Act
of 1933, as amended (the "Act"); and such registration statement has
become effective under the Act and no stop order has been issued with
respect thereto and no proceedings therefor have been initiated or, to
the Company's best knowledge, threatened by the Commission. Except as
the context may otherwise require, such registration statement, as
amended or supplemented, on file with the Commission at the time the
registration statement became effective, including the Prospectus,
financial statements, schedules, exhibits and all other documents
filed as part thereof, as amended and supplemented, is herein called
the "Registration Statement," and the prospectus, as amended or
supplemented, on file with the Commission at the time the Registration
Statement became effective is herein called the "Prospectus," except
that if the prospectus filed by the Company with the Commission
pursuant to Rule 424(b) of the general rules and regulations of the
Commission under the Act (together with the enforceable published
policies and actions of the Commission thereunder, the "SEC
Regulations") differs from the form of prospectus on file at the time
the Registration Statement became effective, the term "Prospectus"
shall refer to the Rule 424(b) prospectus from and after the time it
is filed with or mailed for filing to the Commission and shall include
any amendments or supplements thereto from and after their dates of
effectiveness or use, respectively. If any Shares remain unsubscribed
following completion of the Subscription Offering and the Community
Offering, the Company (a) will, if required by the SEC Regulations,
promptly file with the Commission a post-effective amendment to such
Registration Statement relating to the results of the Subscription and
the Community Offerings, any additional information with respect to
the proposed plan of distribution and any revised pricing information
or (b) if no such post-effective amendment is required, will file
with, or mail for filing to, the Commission a prospectus or prospectus
supplement containing information relating to the results of the
Subscription and Community Offerings and pricing information pursuant
to Rule 424(c) of the Regulations, in either case in a form reasonably
acceptable to the Company and Trident.
Trident Securities, Inc.
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(ii) The Bank has filed an Application for Approval of
Conversion on Form AC, including exhibits (as amended or supplemented,
the "Form AC" and together with the Form H-(e)1-S referred to below,
the "Conversion Application") with the Office of Thrift Supervision
(the "Office") under the Home Owners' Loan Act, as amended (the
"HOLA") and the enforceable rules and regulations, including published
policies and actions, of the Office thereunder (the "OTS
Regulations"), which has been approved by the Office; and the
Prospectus and the proxy statement for the solicitation of proxies
from members for the special meeting to approve the Plan (the "Proxy
Statement") included as part of the Form AC have been approved for use
by the Office. No order has been issued by the Office preventing or
suspending the use of the Prospectus or the Proxy Statement; and no
action by or before the Office revoking such approvals is pending or,
to the Bank's best knowledge, threatened. The Company has filed with
the Office the Company's application on Form H-e(1)-S promulgated
under the savings and loan holding company provisions of the HOLA and
the regulations promulgated thereunder and has received approval of
its acquisition of the Bank from the Office.
(iii) At the date of the Prospectus and at all times subsequent
thereto through and including the Closing Date (i) the Registration
Statement and the Prospectus (as amended or supplemented, if amended
or supplemented) complied with the Act and the Regulations, (ii) the
Registration Statement (as amended or supplemented, if amended or
supplemented) 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 not misleading, and (iii) the
Prospectus (as amended or supplemented, if amended or supplemented)
did not contain any untrue statement of a material fact or omit 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 made, not misleading. Representations or warranties in this
subsection shall not apply to statements or omissions made in reliance
upon and in conformity with written information furnished to the
Company or the Bank relating to Trident by or on behalf of Trident
expressly for use in the Registration Statement or Prospectus.
(iv) The Company has been duly incorporated as a Maryland
corporation, and the Bank has been duly organized as a mutual savings
bank under the laws of the United States, and each of them is validly
existing and in good standing under the laws of the jurisdiction of
its organization with full power and authority to own its property and
conduct its business as described in the Registration Statement and
Prospectus; the Bank is a member in good standing of the Federal Home
Loan Bank of Atlanta; and the deposit accounts of the Bank are insured
by the Savings Association Insurance Fund ("SAIF") administered by the
Federal Deposit Insurance Corporation ("FDIC") up to the applicable
legal limits. Neither the Company nor the
Trident Secuities, Inc.
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Bank is required to be qualified to do business as a foreign
corporation in any jurisdiction where non-qualification would have a
material adverse effect on the Company and the Bank, taken as a whole.
The Bank does not own equity securities of or an equity interest in
any business enterprise. Upon amendment of the Bank's charter and
bylaws as provided in the rules and regulations of the Office and
completion of the sale by the Company of the Shares as contemplated by
the Prospectus, (a) the Bank will be converted pursuant to the Plan to
a federally chartered capital stock savings bank with full power and
authority to own its property and conduct its business as described in
the Prospectus, (b) all of the authorized and outstanding capital
stock of the Bank will be owned of record and beneficially by the
Company, and (c) the Company will have no direct subsidiaries other
than the Bank.
(v) Each of the Bank and the Subsidiary has good, marketable
and insurable title to all assets material to its business and to
those assets described in the Prospectus as owned by it, free and
clear of all material liens, charges, encumbrances or restrictions,
except (a) for liens for taxes not yet due, (b) as described in the
Prospectus, (c) and as could not in the aggregate have a material
adverse effect upon the operations or financial condition of the
Company and the Bank, taken as a whole; and all of the leases and
subleases material to the operations or financial condition of the
Bank, under which it holds properties, including those described in
the Prospectus, are in full force and effect as described therein.
(vi) The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby have been duly
and validly authorized by all necessary actions on the part of each of
the Company and the Bank, and this Agreement is a valid and binding
obligation with valid execution and delivery of each of the Company
and the Bank, enforceable in accordance with its terms (except as the
enforceability thereof may be limited by bankruptcy, insolvency,
moratorium, reorganization or similar laws relating to or affecting
the enforcement of creditors' rights generally or the rights of
creditors of savings and loan holding companies the accounts of whose
subsidiaries are insured by the FDIC or by general equity principles,
regardless of whether such enforceability is considered in a
proceeding in equity or at law, and except to the extent that the
provisions of Sections 8 and 9 hereof may be unenforceable as against
public policy or pursuant to Section 23A of the Federal Reserve Act,
12 U.S.C. Section 371c ("Section 23A")).
(vii) There is no litigation or governmental proceeding pending
or, to the best knowledge of the Company or the Bank, threatened
against or involving the Company, the Bank or any of their respective
assets which individually or in the aggregate could reasonably be
expected to have a material adverse effect on the
Trident Secuities, Inc.
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condition (financial or otherwise), results of operations and
business, including the assets and properties, of the Company and the
Bank, taken as a whole.
(viii) The Company and the Bank have received the opinion of
Housley Kantarian & Bronstein, P.C. to the effect that the Conversion
will constitute a tax-free reorganization under the Internal Revenue
Code of 1986, as amended, and the opinion of Anderson Associates, LLP
to the effect that the Conversion will not be a taxable transaction
for the Bank or the Company under the income tax laws of Maryland. The
Company and the Bank also have received the opinion of Ferguson &
Company which, based upon the assumptions set forth in the Prospectus,
concludes that the subscription rights to be received by Eligible
Account Holders (as defined in the Prospectus) and other eligible
subscribers do not have any economic value at the time of distribution
or at the time the subscription rights are exercised, whether or not a
public offering takes place. The facts relied upon in each of the
above-referenced opinions are accurate and complete.
(ix) Each of the Company and the Bank has all such corporate
power, authority, authorizations, approvals and orders as may be
required to enter into this Agreement and to carry out the provisions
and conditions hereof, subject to the limitations set forth herein and
subject to the satisfaction of certain conditions imposed by the
Office in connection with its approvals of the Form AC and the
Application H-(e)1-S, and except as may be required under the
securities, or "blue sky," laws of various jurisdictions, and, in the
case of the Company, as of the Closing Date, will, to the actual
knowledge of the Company, have such approvals and orders to issue and
sell the Shares to be sold by the Company as provided herein, and, in
the case of the Bank, as of the Closing Date, will, to the actual
knowledge of the Bank, have such approvals and orders to issue and
sell the Shares of its common stock to be sold to the Company as
provided in the Plan, subject to the issuance of an amended charter in
the form required for federally chartered stock savings banks (the
"Stock Charter"), the form of which Stock Charter has been approved by
the Office.
(x) Neither the Company nor the Bank is in violation of any
rule or regulation of the Office or the FDIC that could reasonably be
expected to result in any enforcement action against the Company, the
Bank or their officers or directors that could reasonably be expected
to have a material adverse effect on the condition (financial or
otherwise), operations, businesses, assets or properties of the
Company and the Bank, taken as a whole.
(xi) The consolidated financial statements and any related
notes or schedules which are included in the Registration Statement
and the Prospectus fairly present the consolidated financial
condition, income, retained earnings and cash flows
Trident Securities, Inc.
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of the Bank at the respective dates thereof and for the respective
periods covered thereby and comply as to form with the applicable
accounting requirements of the SEC Regulations and the applicable
accounting regulations of the Office. Such financial statements have
been prepared in accordance with generally accepted accounting
principles consistently applied throughout the periods involved,
except as set forth therein, and such financial statements are
consistent with financial statements and other reports filed by the
Bank with supervisory and regulatory authorities except as such
generally accepted accounting principles may otherwise require. The
tables in the Prospectus accurately present the information purported
to be shown thereby at the respective dates thereof and for the
respective periods therein.
(xii) There has been no material change in the condition
(financial or otherwise), results of operations or business, including
assets and properties, of the Company and the Bank, taken as a whole,
since the latest date as of which such condition is set forth in the
Prospectus, except as set forth therein; and the capitalization,
assets, properties and business of each of the Company and the Bank
conform in all material respects to the descriptions thereof contained
in the Prospectus. Neither the Company nor the Bank has any material
liabilities of any kind, contingent or otherwise, except as set forth
in the Prospectus.
(xiii) There has been no breach or default (or the occurrence of
any event which, with notice or lapse of time or both, would
constitute a default) under, or creation or imposition of any lien,
charge or other encumbrance upon any of the properties or assets of
the Company or the Bank pursuant to any of the terms, provisions or
conditions of, any agreement, contract, indenture, bond, debenture,
note, instrument or obligation to which the Company or the Bank is a
party or by which either of them or any of their respective assets or
properties may be bound or is subject, or violation of any
governmental license or permit or any enforceable published law,
administrative regulation or order or court order, writ, injunction or
decree, which breach, default, encumbrance or violation would have a
material adverse effect on the condition (financial or otherwise),
operations, business, assets or properties of the Company and the
Bank, taken as a whole; all agreements which are material to the
condition (financial or otherwise), results of operations or business
of the Company and the Bank, taken as a whole, are in full force and
effect, and no party to any such agreement has instituted or, to the
best knowledge of the Company and the Bank, threatened any action or
proceeding wherein the Company or the Bank would be alleged to be in
default thereunder.
(xiv) Neither the Company nor the Bank is in violation of its
respective articles of incorporation, charter or bylaws. The execution
and delivery hereof and the consummation of the transactions
contemplated hereby by the Company and the
Trident Securities, Inc.
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Bank do not conflict with or result in a breach of the articles of
incorporation, charter or bylaws of the Company, the Bank (in either
mutual or stock form) or constitute a material breach of or default
(or an event which, with notice or lapse of time or both, would
constitute a default) under, give rise to any right of termination,
cancellation or acceleration contained in, or result in the creation
or imposition of any lien, charge or other encumbrance upon any of the
properties or assets of the Company or the Bank pursuant to any of the
terms, provisions or conditions of, any material agreement, contract,
indenture, bond, debenture, note, instrument or obligation to which
the Company or the Bank is a party or violate any governmental license
or permit or any enforceable published law, administrative regulation
or order or court order, writ, injunction or decree (subject to the
satisfaction of certain conditions imposed by the Office in connection
with its approval of the Conversion Application), which breach,
default, encumbrance or violation would have a material adverse effect
on the condition (financial or otherwise), operations or business of
the Company and the Bank, taken as a whole.
(xv) Subsequent to the respective dates as of which information
is given in the Registration Statement and Prospectus and prior to the
Closing Date (as hereinafter defined), except as otherwise may be
indicated or contemplated therein, neither the Company nor the Bank
has issued any securities which will remain issued at the Closing Date
or incurred any liability or obligation, direct or contingent, or
borrowed money, except liabilities, obligations or borrowings in the
ordinary course of business, or entered into any other transaction not
in the ordinary course of business and consistent with prior
practices, which is material in light of the business of the Company
and the Bank, taken as a whole.
(xvi) Upon consummation of the Conversion, the authorized, issued
and outstanding equity capital of the Company shall be within the
range as set forth in the Prospectus under the caption
"Capitalization," and no Common Stock of the Company shall be
outstanding immediately prior to the Closing Date; the issuance and
the sale of the Shares of the Company have been duly authorized by all
necessary action of the Company and approved by the Office and, when
issued in accordance with the terms of the Plan and paid for, shall be
validly issued, fully paid and nonassessable and shall conform to the
description thereof contained in the Prospectus; the issuance of the
Shares is not subject to preemptive rights, except as set forth in the
Prospectus; and good title to the Shares will be transferred by the
Company upon issuance thereof against payment therefor, free and clear
of all claims, encumbrances, security interests and liens against the
Company whatsoever. The certificates representing the Shares will
conform in all material respects with the requirements of applicable
laws and regulations. The issuance and sale of the capital stock of
the Bank to the Company has been duly authorized by all necessary
action of
Trident Securities, Inc.
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the Bank and the Company and appropriate regulatory authorities
(subject to the satisfaction of various conditions imposed by the
Office in connection with its approval of the Conversion Application),
and such capital stock, when issued in accordance with the terms of
the Plan, will be fully paid and nonassessable and will conform in all
material respects to the description thereof contained in the
Prospectus.
(xvii) No approval of any regulatory or supervisory or other
public authority is required in connection with the execution and
delivery of this Agreement or the issuance of the Shares, except for
the declaration of effectiveness of any required post-effective
amendment by the Commission and approval thereof by the Office and
approval of the Company's application on Form H-(e)1-S by the Office,
the issuance of the Stock Charter by the Office and as may be required
under the securities laws of various jurisdictions.
(xviii) All contracts and other documents required to be filed as
exhibits to the Registration Statement or the Conversion Application
have been filed with the Commission and/or the Office, as the case may
be.
(xix) Anderson Associates, LLP, which has audited the financial
statements of the Bank at December 31, 1997 and for the years ended
December 31, 1996 and 1997, included in the Prospectus, is an
independent public accountant within the meaning of the Code of
Professional Ethics of the American Institute of Certified Public
Accountants and Title 12 of the Code of Federal Regulations, Section
571.2(c)(3).
(xx) The Company and the Bank have timely filed all required
federal, state and local franchise tax returns, and no deficiency has
been asserted with respect to such returns by any taxing authorities,
and the Company and the Bank have paid all taxes that have become due
and, to the best of their knowledge, have made adequate reserves for
similar future tax liabilities, except where any failure to make such
filings, payments and reserves, or the assertion of such a deficiency,
would not have a material adverse effect on the condition of the
Company and the Bank, taken as a whole.
(xxi) All of the loans represented as assets of the Bank on the
most recent financial statements of the Bank included in the
Prospectus meet or are exempt from all requirements of federal, state
or local law pertaining to lending, including without limitation truth
in lending (including the requirements of Regulation Z and 12 C.F.R.
Part 226 and Section 563.99), real estate settlement procedures,
consumer credit protection, equal credit opportunity and all
disclosure laws applicable to such loans,
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except for violations which, if asserted, would not have a material
adverse effect on the Company, the Bank and the Subsidiary taken as a
whole.
(xxii) The records of account holders, depositors, borrowers and
other members of the Bank delivered to Trident by the Bank or its
agent for use during the Conversion have been prepared or reviewed by
the Bank and, to the best knowledge of the Company and the Bank, are
reliable and accurate.
(xxiii) None of the Company, the Bank nor the employees of the
Company or the Bank has made any payment of funds to the Company or
the Bank prohibited by law, and no funds of the Company or the Bank
have been set aside to be used for any payment prohibited by law.
(xxiv) To the best knowledge of the Company and the Bank, the
Company and the Bank are in compliance with all laws, rules and
regulations relating to environmental protection and neither the
Company nor the Bank believes that the Company or the Bank is subject
to liability under the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended, or any similar
law, except for violations which, if asserted, would not have a
material adverse effect on the Company and the Bank, taken as a whole.
There are no actions, suits, regulatory investigations or other
proceedings pending or, to the best knowledge of the Company or the
Bank, threatened against the Company or the Bank relating to
environmental protection. To the best knowledge of the Company and the
Bank, 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 been caused by the Company or the Bank or, to the best
knowledge of the Company or the Bank, has occurred on, in or at any of
the facilities or properties of the Company or the Bank, except such
disposal, release or discharge which could not have a material adverse
effect on the Company and the Bank, taken as a whole.
(xxv) At the Closing Date, the Company and the Bank will have
completed the conditions precedent to, and shall have conducted the
Conversion in all material respects in accordance with, the Plan, the
OTS Regulations and all other applicable laws, regulations, published
decisions and orders, including all terms, conditions, requirements
and provisions precedent to the Conversion imposed by the Office.
Trident Securities, Inc.
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(b) Trident represents and warrants to the Company and the Bank that:
(i) Trident is registered as a broker-dealer with the
Commission, and is in good standing with the Commission and the NASD.
(ii) Trident is validly existing as a corporation in good
standing under the laws of its jurisdiction of incorporation, with
full corporate power and authority to provide the services to be
furnished to the Company and the Bank hereunder.
(iii) The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby have been duly
and validly authorized by all necessary action on the part of Trident,
and this Agreement is a legal, valid and binding obligation of
Trident, enforceable in accordance with its terms (except as the
enforceability thereof may be limited by bankruptcy, insolvency,
moratorium, reorganization or similar laws relating to or affecting
the enforcement of creditors' rights generally or the rights of
creditors of registered broker-dealers accounts of whose may be
protected by the Securities Investor Protection Corporation or by
general equity principles, regardless of whether such enforceability
is considered in a proceeding in equity or at law, and except to the
extent that the provisions of Sections 8 and 9 hereof may be
unenforceable as against public policy or pursuant to Section 23A).
(iv) Each of Trident and, to Trident's knowledge, its employees,
agents and representatives who shall perform any of the services
required hereunder to be performed by Trident shall be duly authorized
and shall have all licenses, approvals and permits necessary to
perform such services, and Trident is a registered selling agent in
the jurisdictions listed in Exhibit A hereto and will remain
registered in such jurisdictions in which the Company is relying on
such registration for the sale of the Shares, until the Conversion is
consummated or terminated.
(v) The execution and delivery of this Agreement by Trident,
the fulfillment of the terms set forth herein and the consummation of
the transactions contemplated hereby shall not violate or conflict
with the corporate charter or bylaws of Trident or violate, conflict
with or constitute a breach of, or default (or an event which, with
notice or lapse of time, or both, would constitute a default) under,
any material agreement, indenture or other instrument by which Trident
is bound or under any governmental license or permit or any law,
administrative regulation, authorization, approval or order or court
decree, injunction or order.
Trident Securities, Inc.
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(vi) Any funds received by Trident to purchase Common Stock will
be handled in accordance with Rule 15c2-4 under the Securities
Exchange Act of 1934, as amended (the "Exchange Act").
(vii) There is not now pending or, to Trident's knowledge,
threatened against Trident any action or proceeding before the
Commission, the NASD, any state securities commission or any state or
federal court concerning Trident's activities as a broker-dealer.
3. Employment of Trident; Sale and Delivery of the Shares. On the basis
------------------------------------------------------
of the representations and warranties herein contained, but subject to the terms
and conditions herein set forth, the Company and the Bank hereby employ Trident
as their agent to utilize its best efforts in assisting the Company with the
Company's sale of the Shares in the Subscription Offering and Community
Offering. The employment of Trident hereunder shall terminate (a) forty-five
(45) days after the Subscription and Community Offering closes, unless the
Company and the Bank, with the approval of the Office, are permitted to extend
such period of time, or (b) upon consummation of the Conversion, whichever date
shall first occur.
In the event the Company is unable to sell a minimum of 382,500 Shares (or
such lesser amount as the Office may permit) within the period herein provided,
this Agreement shall terminate, and the Company and the Bank shall refund
promptly to any persons who have subscribed for any of the Shares, the full
amount which it may have received from them, together with interest as provided
in the Prospectus, and no party to this Agreement shall have any obligation to
the other party hereunder, except as set forth in Sections 6, 8(a) and 9 hereof.
Appropriate arrangements for placing the funds received from subscriptions for
Shares in special interest-bearing accounts with the Bank until all Shares are
sold and paid for were made prior to the commencement of the Subscription and
Community Offering, with provision for prompt refund to the purchasers as set
forth above, or for delivery to the Company if all Shares are sold.
If all conditions precedent to the consummation of the Conversion are
satisfied, including the sale of all Shares required by the Plan to be sold, the
Company agrees to issue or have issued such Shares and to release for delivery
certificates to subscribers thereof for such Shares on the Closing Date against
payment to the Company by any means authorized pursuant to the Prospectus, at
the principal office of the Company at 8005 Harford Road, Baltimore, Maryland
21234 or at such other place as shall be agreed upon between the parties hereto.
The date upon which Trident is paid the compensation due hereunder is herein
called the "Closing Date."
Trident agrees either (a) upon receipt of executed order forms of
subscribers to forward, for deposit in a segregated account, the offering price
of the Common Stock ordered on or before twelve noon on the next business day
following receipt or execution of an order form by Trident to the Bank or (b) to
solicit indications of interest in which event (i) Trident will subsequently
contact any
Trident Securities, Inc.
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potential subscriber indicating interest to confirm the interest and give
instructions to execute and return an order form or to receive authorization to
execute the order form on the subscriber's behalf, (ii) Trident will mail
acknowledgments of receipt of orders to each subscriber confirming interest on
the business day following such confirmation, (iii) Trident will debit accounts
of such subscribers on the fifth business day ("debit date") following receipt
of the confirmation referred to in (i), and (iv) Trident will forward completed
order forms together with such funds to the Bank on or before twelve noon on the
next business day following the debit date for deposit in a segregated account.
Trident acknowledges that if the procedure in (b) is adopted, subscribers' funds
are not required to be in their accounts until the debit date.
In addition to the expenses specified in Section 6 hereof, Trident shall
receive the following compensation for its services hereunder:
(a) A commission equal to two percent (2.00%) of the aggregate dollar
amount of any Shares sold in the Subscription Offering and the Community
Offering, excluding (i) any Shares sold to the ESOP, the Bank's executive
officers, directors and their "Associates" (as such term is defined in the
Plan) and (ii) Shares sold by other NASD member firms under selected
dealer's arrangements. For stock sold under selected dealer's arrangements,
the commission payable shall be as agreed upon by the Company and Trident
to reflect market requirements at the time of the stock allocation in the
Syndicated Community Offering. All such fees and commissions payable to
Trident are to be payable in next-day funds to Trident in Raleigh, North
Carolina on the Closing Date.
(b) Trident shall be reimbursed for allocable expenses, including but
not limited to travel, communications, legal fees and postage, incurred by
it whether or not the Offerings are successfully completed; provided,
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however, that reimbursable legal fees will not exceed $28,000 (excluding
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reasonable out of pocket expenses), that other reimbursable expenses will
not exceed $10,000 and that neither the Company nor the Bank shall pay or
reimburse Trident for any of the foregoing expenses accrued after Trident
shall have notified the Company or the Bank of its election to terminate
this Agreement pursuant to Section 11 hereof or after such time as the
Company or the Bank shall have given notice in accordance with Section 12
hereof that Trident is in breach of this Agreement. Full payment to defray
Trident's reimbursable expenses shall be made in next-day funds on the
Closing Date or, if the Conversion is not completed and is terminated for
any reason, within ten (10) business days of receipt by the Company of a
written request from Trident for reimbursement of its expenses. Trident
acknowledges receipt of $10,000 advance payment from the Bank which shall
be credited against the total reimbursement due Trident hereunder.
(c) Notwithstanding the limitations on reimbursement of Trident for
allocable expenses provided in the immediately preceding paragraph (b), in
the event that a resolicitation or other event causes the Offerings to be
extended beyond their original
Trident Securities, Inc.
Page 13
expiration date, Trident shall be reimbursed for its allocable expenses
incurred during such extended period, provided that the allowance for
allocable expenses provided for in the immediately preceding paragraph (b)
above have been exhausted and subject to the following. Such reimbursement
shall be in amount equal to the product obtained by dividing $10,000
(original out-of-pocket expenses) by the total number of days of the
unextended Subscription Offering (calculated from the date of the
Prospectus to the intended close of the Subscription Offering as stated in
the Prospectus) and multiplying such product by the number of days of the
extension (that number of days from the date of the supplemental prospectus
used in the extended Subscription Offering to the closing of the extension
of the Subscription Offering described in such supplemental prospectus).
The Company shall pay any stock issue and transfer taxes which may be
payable with respect to the sale of the Shares. The Company and the Bank also
shall pay all expenses of the Conversion incurred by them or on their prior
approval including but not limited to their attorneys' fees, NASD filing fees,
and attorneys' fees relating to any required state securities laws research and
filings, telephone charges, air freight, rental equipment, supplies, transfer
agent charges, fees relating to auditing and accounting and costs of printing
all documents necessary in connection with the Conversion.
4. Offering. Subject to the provisions of Section 7 hereof, Trident is
--------
assisting the Company on a best efforts basis in offering a minimum of 382,500
and a maximum of 517,500 Shares, with the possibility of offering up to 595,125
Shares (except as the Office may permit to be decreased or increased) in the
Subscription and Community Offerings. The Shares are to be offered to the
public at the price set forth on the cover page of the Prospectus and the first
page of this Agreement.
5. Further Agreements. The Company and the Bank jointly and severally
------------------
covenant and agree that:
(a) The Company shall deliver to Trident, from time to time, such
number of copies of the Prospectus as Trident reasonably may request. The
Company authorizes Trident to use the Prospectus in any lawful manner in
connection with the offer and sale of the Shares.
(b) The Company will notify Trident immediately upon discovery, and
confirm the notice in writing, (i) when any post-effective amendment to the
Registration Statement becomes effective or any supplement to the
Prospectus has been filed, (ii) of the issuance by the Commission of any
stop order relating to the Registration Statement or of the initiation or
the threat of any proceedings for that purpose, (iii) of the receipt of any
notice with respect to the suspension of the qualification of the Shares
for offering or sale in any jurisdiction, and (iv) of the receipt of any
comments (other than those of a non-substantive nature) from the
Trident Securities, Inc.
Page 14
staff of the Commission relating to the Registration Statement. If the
Commission enters a stop order relating to the Registration Statement at
any time, the Company will make every reasonable effort to obtain the
lifting of such order at the earliest possible moment.
(c) During the time when a prospectus is required to be delivered
under the Act, the Company will comply so far as it is able with all
requirements imposed upon it by the Act, as now in effect and hereafter
amended, and by the SEC Regulations, as from time to time in force, so far
as necessary to permit the continuance of offers and sales of or dealings
in the Shares in accordance with the provisions hereof and the Prospectus.
If during the period when the Prospectus is required to be delivered in
connection with the offer and sale of the Shares any event relating to or
affecting the Company and the Bank, taken as a whole, shall occur as a
result of which it is necessary, in the opinion of counsel for Trident,
with the concurrence of counsel to the Company, to amend or supplement the
Prospectus in order to make the Prospectus not false or misleading in light
of the circumstances existing at the time it is delivered to a purchaser of
the Shares, the Company forthwith shall prepare and furnish to Trident a
reasonable number of copies of an amendment or amendments or of a
supplement or supplements to the Prospectus (in form and substance
satisfactory to counsel for Trident) which shall amend or supplement the
Prospectus so that, as amended or supplemented, the Prospectus shall not
contain an untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in light of the
circumstances existing at the time the Prospectus is delivered to a
purchaser of the Shares, not misleading. The Company will not file or use
any amendment or supplement to the Registration Statement or the Prospectus
of which Trident has not first been furnished a copy or to which Trident
shall reasonably object after having been furnished such copy. For the
purposes of this subsection the Company and the Bank shall furnish such
information with respect to themselves as Trident from time to time may
reasonably request.
(d) The Company and the Bank have taken, or will take, all reasonably
necessary action as may be required to qualify or register the Shares for
offer and sale by the Company under the securities or blue sky laws of such
jurisdictions as Trident and either the Company or its counsel may agree
upon; provided, however, that the Company shall not be obligated to qualify
--------- -------
as a foreign corporation to do business under the laws of any such
jurisdiction. In each jurisdiction where such qualification or registration
shall be effected, the Company, unless Trident agrees that such action is
not necessary or advisable in connection with the distribution of the
Shares, shall file and make such statements or reports as are, or
reasonably may be, required by the laws of such jurisdiction.
(e) Appropriate entries will be made in the financial records of the
Bank sufficient to establish a liquidation account for the benefit of
eligible account holders as of December 31, 1995 in accordance with the
requirements of the Office.
Trident Securities, Inc.
Page 15
(f) The Company will file a registration statement for the Common
Stock under Section 12(b) or Section 12(g) of the Exchange Act, prior to
completion of the stock offering pursuant to the Plan and shall request
that such registration statement be effective upon completion of the
Conversion. The Company shall maintain the effectiveness of such
registration for a minimum period of three (3) years or for such shorter
period as may be required by applicable law.
(g) The Company will make generally available to its security holders
as soon as practicable, but not later than ninety (90) days after the close
of the period covered thereby, an earnings statement (in form complying
with the provisions of Rule 158 of the regulations promulgated under the
Act) covering a twelve-month period beginning not later than the first day
of the Company's fiscal quarter next following the effective date (as
defined in said Rule 158) of the Registration Statement.
(h) For a period of three (3) years from the date of this Agreement
(unless the Common Stock shall have been deregistered under the Exchange
Act), the Company will furnish to Trident, as soon as publicly available
after the end of each fiscal year, a copy of its annual report to
shareholders for such year; and the Company will furnish to Trident (i) as
soon as publicly available, a copy of each report or definitive proxy
statement of the Company filed with the Commission under the Exchange Act
or mailed to shareholders, and (ii) from time to time, such other public
information concerning the Company as Trident may reasonably request.
(i) The Company shall use the net proceeds from the sale of the
Shares consistently with the manner set forth in the Prospectus.
(j) The Company shall not deliver the Shares until each and every
condition set forth in Section 7 hereof has been satisfied, unless such
condition is waived by Trident.
(k) The Company shall advise Trident, if necessary, as to the
allocation of deposits, in the case of Eligible Account Holders and
Supplemental Eligible Account Holders, and votes, in the case of other
members, and of the Shares in the event of an oversubscription and shall
provide Trident final instructions as to the allocation of the Shares
("Allocation Instructions") in such event and such information shall be
accurate and reliable. Trident shall be entitled to rely on such
instructions and shall have no liability in respect of its reliance
thereon, including without limitation, no liability for or related to any
denial or grant of a subscription in whole or in part.
(l) The Company and the Bank will take such actions and furnish such
information as are reasonably requested by Trident in order for Trident to
ensure compliance with the NASD's "Interpretation Relating to Free-Riding
and Withholding."
Trident Securities, Inc.
Page 16
6. Payment of Expenses. Whether or not the Conversion is consummated,
-------------------
the Company and the Bank shall pay or reimburse Trident for (a) all filing fees
paid or incurred by Trident in connection with all filings with the NASD with
respect to the Subscription and Community Offerings and, (b) if the Company is
unable to sell a minimum of 382,500 Shares or such lesser amount as the Office
may permit or the Conversion is otherwise terminated, the Company and the Bank
shall reimburse Trident for allocable expenses incurred by Trident relating to
the offering of the Shares as provided in Section 3 hereof; provided, however,
that neither the Company nor the Bank shall pay or reimburse Trident for any of
the foregoing expenses accrued after Trident shall have notified the Company or
the Bank of its election to terminate this Agreement pursuant to Section 11
hereof or after such time as the Company or the Bank shall have given notice in
accordance with Section 12 hereof that Trident is in breach of this Agreement.
7. Conditions of Trident's Obligations. Except as may be waived by
-----------------------------------
Trident, the obligations of Trident as provided herein shall be subject to the
accuracy of the representations and warranties contained in Section 2 hereof as
of the date hereof and as of the Closing Date, to the performance by the Company
and the Bank of their obligations hereunder and to the following conditions:
(a) At the Closing Date, Trident shall receive the favorable opinion
of Housley Kantarian & Bronstein, P.C., special counsel for the Company and
the Bank, dated the Closing Date, addressed to Trident, in form and
substance reasonably satisfactory to counsel for Trident and to the effect
that:
(i) The Company has been duly incorporated, and the Company is
validly existing as a corporation in good standing under the laws of
its jurisdiction of incorporation, and the Bank is validly existing as
a savings bank in mutual form in good standing under the laws of the
United States, each with full power and authority to own its
properties and conduct its business as described in the Prospectus;
(ii) each of the Company and the Bank has been qualified to do
business and, to such counsel's actual knowledge, is in good standing
as a foreign corporation in each jurisdiction where the ownership or
leasing of its properties or the conduct of its business requires such
qualification or, if not so qualified and in good standing, failure to
so qualify would not have any material adverse effect on the Company
and the Bank, taken as a whole;
(iii) the Bank is a member of the Federal Home Loan Bank of
Atlanta, and the deposit accounts of the Bank are insured by the SAIF
up to the applicable legal limits;
Trident Securities, Inc.
Page 17
(iv) to the actual knowledge of such counsel, the activities of
the Bank, as such activities are described in the Prospectus, are
permitted under federal law, and the Bank does not have any
subsidiaries;
(v) the Plan complies with the HOLA and the OTS Regulations;
to such counsel's knowledge, all of the terms, conditions,
requirements and provisions with respect to the Plan and the
Conversion imposed by the Office, except with respect to the filing or
submission of certain required post-Conversion reports or other
materials by the Company or the Bank, have been complied with by the
Company and the Bank; and, to the actual knowledge of such counsel, no
person has sought to obtain regulatory or judicial review of the final
action of the Office in approving the Plan;
(vi) the Company and the Bank have authorized the common stock
as set forth in the Registration Statement and the Prospectus, and the
description of such common stock in the Registration Statement and the
Prospectus is accurate in all material respects;
(vii) the issuance and sale of the Shares have been duly and
validly authorized by all necessary corporate action on the part of
the Company; the Shares, upon receipt of payment and issuance in
accordance with the terms of the Plan and this Agreement, will be
validly issued, fully paid, nonassessable and, except as disclosed in
the Prospectus, free of preemptive rights, and good title thereto
shall be transferred by the Company free and clear of all claims,
encumbrances, security interests and liens created by the Company;
(viii) the certificates for the Shares are in proper form and
comply in all material respects with applicable Maryland law;
(ix) the issuance and sale of the capital stock of the Bank to
the Company has been duly authorized by all necessary corporate action
of the Bank and the Company and have received the approval of the
Office, and such capital stock, upon receipt of payment and issuance
in accordance with the terms of the Plan, will be validly issued,
fully paid and nonassessable and owned of record and, to the knowledge
of such counsel, beneficially by the Company;
Trident Securities, Inc.
Page 18
(x) subject to the satisfaction of the conditions to the
Office's approval of the Conversion Application, no further approval,
authorization, consent or other order of any public board or body is
required in connection with the execution and delivery of this
Agreement or the consummation of the Conversion, except with respect
to the issuance to the Bank of the Stock Charter by the Office;
(xi) the execution and delivery of this Agreement and the
consummation of the Conversion have been duly and validly authorized
by all necessary corporate action on the part of each of the Company
and the Bank;
(xii) the statements in the Prospectus and incorporated by
reference in the Proxy Statement under the captions "Regulation,"
"Taxation," "Dividends," "Certain Restrictions on Acquisition of the
Company" and "Description of Capital Stock," insofar as they are, or
refer to, statements of law or legal conclusions (excluding financial
data included therein, as to which an opinion need not be expressed),
have been or reviewed by such counsel and are correct in all material
respects;
(xiii) the Form AC has been approved by the Office, and the
Prospectus and the Proxy Statement have been authorized for use by the
Office; the Registration Statement and any post-effective amendment
thereto has been declared effective by the Commission; except as to
any necessary qualifications or registration under the securities laws
of the jurisdictions in which the Shares were offered, no further
approval of any governmental authority is required for the issuance
and sale of the Shares (subject to the satisfaction of various
conditions subsequent imposed by the Office in connection with its
approval of the Conversion Application), and to the actual knowledge
of such counsel, no proceedings are pending by or before the
Commission or the Office seeking to revoke or rescind the orders
declaring the Registration Statement effective or approving the
Conversion Application or, to the actual knowledge of such counsel,
are contemplated or threatened (provided that for this purpose such
counsel need not regard any litigation or governmental procedure to be
"threatened" unless the potential litigant or government authority has
manifested to the management of the Company or the Bank, or to such
counsel, a present intention to initiate such litigation or
proceeding);
(xiv) the execution and delivery of this Agreement and the
consummation of the Conversion by the Company and the Bank do not
conflict with or result in a breach of the articles of incorporation,
charter or bylaws of the Company or the Bank (in either mutual or
stock form); and
Trident Securities, Inc.
Page 19
(xv) the Conversion Application, the Registration Statement,
the Prospectus and the Proxy Statement, in each case as amended,
comply as to form in all material respects with the requirements of
the Act, the HOLA, the SEC Regulations and the OTS Regulations, as the
case may be (except as to information with respect to Trident included
therein and financial statements, notes to financial statements,
financial tables and other financial and statistical data, including
the appraisal, included therein, as to which an opinion need not be
expressed); to such counsel's actual knowledge, all documents and
exhibits required to be filed with the Conversion Application and the
Registration Statement have been so filed and the descriptions in the
Conversion Application and the Registration Statement of such
documents and exhibits are accurate in all material respects.
(xvi) to the knowledge of such counsel, the Bank has obtained
all licenses, permits and other governmental authorizations currently
required for the conduct of its business as such business is described
in the Prospectus, all such licenses, permits and other governmental
authorizations are in full force and effect and the Bank is in all
material respects complying therewith, except where the failure to
hold such licenses, permits or governmental authorizations or the
failure to so comply would not have a material adverse effect on the
Company and the Bank, taken as a whole;
(xvii) there are no material legal or governmental proceedings
pending or, to the knowledge of such counsel, threatened against or
involving the assets of the Company or the Bank.
(xviii) this Agreement is a legal, valid and binding obligation
of each of the Company and the Bank, enforceable in accordance with
its terms (except as the enforceability thereof may be limited by
bankruptcy, insolvency, moratorium, reorganization, receivership,
conservatorship or similar laws relating to or affecting the
enforcement of creditors' rights generally or the rights of creditors
of depository institutions whose accounts are insured by the FDIC or
savings and loan holding companies the accounts of whose subsidiaries
are insured by the FDIC or by general equity principles, regardless of
whether such enforceability is considered in a proceeding in equity or
at law, and except to the extent that the provisions of Sections 8 and
9 hereof may be unenforceable as against public policy or pursuant to
Section 23A, as to which no opinion need be rendered);
(xiv) to the best knowledge of such counsel, the execution and
delivery of this Agreement and the consummation of the Conversion by
the Company and the Bank do not constitute a material breach of or
default (or an event which, with notice or lapse of time or both,
would constitute a default) under, give rise to any right of
termination, cancellation or acceleration contained in, or result in
the creation or
Trident Securities, Inc.
Page 20
imposition of any lien, charge or other encumbrance upon any of the
properties or assets of the Company or the Bank pursuant to any of the
terms, provisions or conditions of, any material agreement, contract,
indenture, bond, debenture, note, instrument or obligation to which
the Company or the Bank is a party or violate any governmental license
or permit or any enforceable published law, administrative regulation
or order or court order, writ, injunction or decree (subject to the
satisfaction of certain conditions imposed by the Office in connection
with its approval of the Conversion Application), which breach,
default, encumbrance or violation would have a material adverse effect
on the condition (financial or otherwise), operations, business,
assets or properties of the Company and the Bank, taken as a whole;
and
(xx) to the knowledge of such counsel, there has been no
material breach of any provision of the Company's or the Bank's
articles of incorporation, charter or bylaws or breach or default (or
the occurrence of any event which, with notice or lapse of time or
both, would constitute a default) under any agreement, contract,
indenture, bond, debenture, note, instrument or obligation to which
the Company, the Bank or the Subsidiary is a party or by which any of
them or any of their respective assets or properties may be bound, or
any governmental license or permit, or a violation of any enforceable
published law, administrative regulation or order, or court order,
writ, injunction or decree which breach, default, encumbrance or
violation would have a material adverse effect on the condition
(financial or otherwise), operations, business, assets or properties
of the Company, the Bank and the Subsidiary taken as a whole;
In rendering such opinion, such counsel may rely as to matters of fact
on certificates of officers and directors of the Company and the Bank and
certificates of public officials delivered pursuant hereto. Such counsel
may assume that any agreement is the valid and binding obligation of any
parties to such agreement other than the Company and the Bank. Such opinion
may be governed by, and interpreted in accordance with, the Legal Opinion
Accord (the "Accord") of the ABA Section of Business Law (1991), and, as a
consequence, such opinion is subject to the qualifications, exceptions,
definitions, limitations on coverage and other limitations, all as more
particularly described in the Accord, and it should be read in conjunction
therewith. In addition, the "General Qualifications" set forth in the
Accord apply to the opinions set forth in such opinion. Such opinion may be
limited to present statutes, regulations and judicial interpretations and
to facts as they presently exist; in rendering such opinion, such counsel
need assume no obligation to revise or supplement it should the present
laws be changed by legislative or regulatory action, judicial decision or
otherwise; and such counsel need express no view, opinion or belief with
respect to whether any proposed or pending legislation, if enacted, or any
regulations or any policy statements issued by any regulatory agency,
whether or not promulgated pursuant to any such
Trident Securities, Inc.
Page 21
legislation, would affect the validity of the execution and delivery by the
Company and the Bank of this Agreement or the issuance of the Shares.
(c) At the Closing Date, Trident shall receive the letter of Housley
Kantarian & Bronstein, P.C., special counsel for the Company and the Bank,
dated the Closing Date, addressed to Trident, in form and substance
reasonably satisfactory to counsel for Trident and to the effect that: (i)
based on such counsel's participation in conferences with representatives
of the Company, the Bank, the independent appraiser, the independent
certified public accountants, Trident and its counsel, review of documents
and understanding of applicable law (including the requirements of Form S-1
and the character of the Registration Statement contemplated thereby) and
the experience such counsel has gained in its practice under the Act,
nothing has come to such counsel's attention that would lead it to believe
that the Registration Statement, as amended (except as to information in
respect of Trident contained therein and except as to the financial
statements, notes to financial statements, financial tables and other
financial and statistical data contained therein, as to which such counsel
need express no comment), at the time it became effective contained any
untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements made
therein, in light of the circumstances under which they were made, not
misleading, or that the Prospectus, as amended (except as to information in
respect of Trident contained therein and except as to financial statements,
notes to financial statements, financial tables and other financial and
statistical data contained therein as to which such counsel need express no
comment), at the time the Prospectus was filed with the Commission under
Rule 424(b) and at the Closing Date, contained any untrue statement of a
material fact or omitted to state a material fact necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading (in making this statement such counsel may state that
it has not undertaken to verify independently the information in the
Registration Statement or Prospectus and, therefore, does not assume any
responsibility for the accuracy or completeness thereof).
(d) Counsel for Trident shall have been furnished such documents as
they reasonably may require for the purpose of enabling them to review or
pass upon the matters required by Trident, and for the purpose of
evidencing the accuracy, completeness or satisfaction of any of the
representations, warranties or conditions herein contained, including but
not limited to, resolutions of the Board of Directors of the Company and
the Bank regarding the authorization of this Agreement and the transactions
contemplated hereby.
(e) Prior to and at the Closing Date, in the reasonable opinion of
Trident, (i) there shall have been no material change in the condition,
financial or otherwise, business or results of operations of the Company
and the Bank, taken as a whole, since the latest date as of which such
condition is set forth in the Prospectus, except as referred to therein;
(ii) there shall have been no transaction entered into by the Company or
the Bank after the latest date
Trident Securities, Inc.
Page 22
as of which the financial condition of the Company or the Bank is set forth
in the Prospectus other than transactions referred to or contemplated
therein, transactions in the ordinary course of business, and transactions
which are not materially adverse to the Company or the Bank, taken as a
whole; (iii) neither the Company nor the Bank shall have received from the
Office or Commission any direction (oral or written) to make any change in
the method of conducting their respective business which is material to the
business of the Company and the Bank, taken as a whole, with which they
have not complied; (iv) no action, suit or proceeding, at law or in equity
or before or by any federal or state commission, board or other
administrative agency, shall be pending or threatened against the Company
or the Bank or affecting any of their respective assets, wherein an
unfavorable decision, ruling or finding would have a material adverse
effect on the business, operations, financial condition or income of the
Company and the Bank, taken as a whole; and (v) the Shares shall have been
qualified or registered for offering and sale by the Company under the
securities or blue sky laws of such jurisdictions as Trident and the
Company shall have agreed upon.
(f) At the Closing Date, Trident shall receive a certificate of the
principal executive officer and the principal financial officer of each of
the Company and the Bank, dated the Closing Date, to the effect that: (i)
they have examined the Prospectus and, at the time the Prospectus became
authorized by the Company for 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, in light of the circumstances under
which they were made, not misleading with respect to the Company or the
Bank; (ii) since the date the Prospectus became authorized by the Company
for use, no event has occurred which should have been set forth in an
amendment or supplement to the Prospectus which has not been so set forth,
including specifically, but without limitation, any material change in the
business, condition (financial or otherwise) or results of operations of
the Company or the Bank, and the conditions set forth in clauses (ii)
through (iv) inclusive of subsection (d) of this Section 7 have been
satisfied; (iii) to the best knowledge of such officers, no order has been
issued by the Commission or the Office to suspend the Subscription Offering
or the Community Offering or the effectiveness of the Prospectus, and no
action for such purposes has been instituted or threatened by the
Commission or the Office; (iv) to the best knowledge of such officers, no
person has sought to obtain review of the final actions of the Office and
division approving the Plan; and (v) all of the representations and
warranties contained in Section 2 of this Agreement are true and correct,
with the same force and effect as though expressly made on the Closing
Date.
(g) At the Closing Date, Trident shall receive, among other
documents, (i) copies of the letters from the Office authorizing the use of
the Prospectus and the Proxy Statement; (ii) a copy of the order of the
Commission declaring the Registration Statement effective; (iii) copies of
the letters from the Office evidencing the corporate existence of the Bank;
(iv) a copy of the letter from the appropriate Delaware authority
evidencing the incorporation (and,
Trident Securities, Inc.
Page 23
if generally available from such authority, good standing) of the Company;
(v) a copy of the Company's articles of incorporation certified by the
appropriate Maryland governmental authority; and (vi), if available, a copy
of the letter from the Office approving the Bank's Stock Charter.
(h) As soon as available after the Closing Date, Trident shall
receive a certified copy of the Bank's Stock Charter executed by the
appropriate federal governmental authority.
(i) Concurrently with the execution of this Agreement, Trident
acknowledges receipt of a letter from Anderson Associates, LLP, independent
certified public accountants, addressed to Trident and the Company, in
substance and form satisfactory to counsel for Trident, with respect to the
financial statements and certain financial information contained in the
Prospectus.
(j) At the Closing Date, Trident shall receive a letter in form and
substance satisfactory to counsel for Trident from Anderson Associates,
LLP, independent certified public accountants, dated the Closing Date and
addressed to Trident and the Company, confirming the statements made by
them in the letter delivered by them pursuant to the preceding subsection
as of a specified date not more than five (5) days prior to the Closing
Date.
All such opinions, certificates, letters and documents shall be in
compliance with the provisions hereof only if they are, in the reasonable
opinion of Trident and its counsel, satisfactory to Trident and its counsel.
Any certificates signed by an officer or director of the Company or the Bank
prepared for Trident's reliance and delivered to Trident or to counsel for
Trident shall be deemed a representation and warranty by the Company and the
Bank to Trident as to the statements made therein. If any condition to
Trident's obligations hereunder to be fulfilled prior to or at the Closing Date
is not so fulfilled, Trident may terminate this Agreement or, if Trident so
elects, may waive any such conditions which have not been fulfilled, or may
extend the time for their fulfillment. If Trident terminates this Agreement as
aforesaid, the Company and the Bank shall reimburse Trident for its expenses as
provided in Section 3(b) hereof.
8. Indemnification.
---------------
(a) The Company and the Bank jointly and severally agree to indemnify
and hold harmless Trident, its officers, directors and employees and each
person, if any, who controls Trident within the meaning of Section 15 of
the Act or Section 20(a) of the Exchange Act, against any and all loss,
liability, claim, damage and expense whatsoever and shall further promptly
reimburse such persons for any legal or other expenses reasonably incurred
by each or any of them in investigating, preparing to defend or defending
against any such action, proceeding or claim (whether commenced or
threatened) arising out of or based upon (i) any
Trident Securities, Inc.
Page 24
misrepresentation by the Company or the Bank in this Agreement or any
breach of warranty by the Company or the Bank with respect to this
Agreement or arising out of or based upon any untrue or alleged untrue
statement of a material fact or the omission or alleged omission of a
material fact required to be stated or necessary to make not misleading any
statements contained in (A) the Registration Statement or the Prospectus or
(B) any application (including the Form AC and the Form H-(e)1-S) or other
document or communication (in this Section 8 collectively called
"Application") prepared or executed by or on behalf of the Company or the
Bank or based upon written information furnished by or on behalf of the
Company or the Bank, whether or not filed in any jurisdiction, to effect
the Conversion or qualify the Shares under the securities laws thereof or
filed with the Office or Commission, unless such statement or omission was
made in reliance upon and in conformity with written information furnished
to the Company or the Bank with respect to Trident by or on behalf of
Trident expressly for use in the Prospectus or any amendment or supplement
thereof or in any Application, as the case may be, or (ii) the
participation by Trident in the Conversion. Notwithstanding the foregoing,
no indemnification shall be required for material oral misstatements made
by Trident, its officers, agents, servants or employees which are not based
upon information provided by or on behalf of the Company or the Bank orally
or in writing or based upon information contained in the Registration
Statement, the Prospectus or in any Application. This indemnity shall be in
addition to any liability the Company and the Bank may have to Trident
otherwise.
(b) The Company shall indemnify and hold Trident harmless for any
liability whatsoever arising out of (i) the Allocation Instructions or (ii)
any records of account holders, depositors, borrowers and other members of
the Bank delivered to Trident by the Bank or its agents for use during the
Conversion.
(c) Trident agrees to indemnify and hold harmless the Company and
the Bank, their officers, directors and employees and each person, if any,
who controls the Company and the Bank within the meaning of Section 15 of
the Act or Section 20(a) of the Exchange Act, to the same extent as the
foregoing indemnity from the Company and the Bank to Trident, but only with
respect to (i) statements or omissions, if any, made in the Prospectus or
any amendment or supplement thereof in any Application or to a purchaser of
the Shares in reliance upon, and in conformity with, written information
furnished to the Company or the Bank with respect to Trident by or on
behalf of Trident expressly for use in the Prospectus or in any
Application; (ii) any misrepresentation by Trident in Section 2(b) of this
Agreement; or (iii) any liability of the Company or the Bank which is found
in a final judgment by a court of competent jurisdiction (not subject to
further appeal) to have principally and directly resulted from gross
negligence or willful misconduct of Trident.
(d) Promptly after receipt by an indemnified party under this
Section 8 of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof
Trident Securities, Inc.
Page 25
is to be made against the indemnifying party under this Section 8, notify
the indemnifying party of the commencement thereof; but the omission so to
notify the indemnifying party will not relieve it from any liability which
it may have to any indemnified party otherwise than under this Section 8.
In case any such action is brought against any indemnified party, and it
notifies the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein and, to the
extent that it may wish, jointly with the other indemnifying party
similarly notified, to assume the defense thereof, with counsel
satisfactory to such indemnified party, and after notice from the
indemnifying party to such indemnified party of its election so to assume
the defense thereof, the indemnifying party will not be liable to such
indemnified party under this Section 8 for any legal or other expenses
subsequently incurred by such indemnified party in connection with the
defense thereof other than the reasonable cost of investigation except as
otherwise provided herein. In the event the indemnifying party elects to
assume the defense of any such action and retain counsel acceptable to the
indemnified party, the indemnified party may retain additional counsel, but
shall bear the fees and expenses of such counsel unless (i) the
indemnifying party shall have specifically authorized the indemnified party
to retain such counsel or (ii) the parties to such suit include such
indemnifying party and the indemnified party, and such indemnified party
shall have been advised by counsel that one or more material legal defenses
may be available to the indemnified party which may not be available to the
indemnifying party, in which case the indemnifying party shall not be
entitled to assume the defense of such suit notwithstanding the
indemnifying party's obligation to bear the fees and expenses of such
counsel. An indemnifying party against whom indemnity may be sought shall
not be liable to indemnify an indemnified party under this Section 8 if any
settlement of any such action is effected without such indemnifying party's
consent. To the extent required by law, this Section 8 is subject to and
limited by the provisions of Section 23A.
9. Contribution. In order to provide for just and equitable contribution
------------
in circumstances in which the indemnity agreement provided for in Section 8
above is for any reason held to be unavailable to Trident, the Company and/or
the Bank other than in accordance with its terms, the Company or the Bank and
Trident shall contribute to the aggregate losses, liabilities, claims, damages,
and expenses of the nature contemplated by said indemnity agreement incurred by
the Company or the Bank and Trident (a) in such proportion as is appropriate to
reflect the relative benefits received by the Company and the Bank, on the one
hand, and Trident, on the other hand, from the offering of the Shares or (b) if
the allocation provided by clause (a) above is not permitted by applicable law,
in such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (a) above, but also the relative fault of the Company or
the Bank, on the one hand, and Trident, on the other hand, in connection with
the statements or omissions which resulted in such losses, claims, damages,
liabilities or judgments, as well as any other relevant equitable
considerations. The relative benefits received by the Company and the Bank, on
the one hand, and Trident, on the other hand, shall be deemed to be in the same
proportions as the total net proceeds from the Conversion received by the
Company and the Bank bear to the total fees received by
Trident Securities, Inc.
Page 26
Trident under this Agreement. The relative fault of the Company or the Bank, on
the one hand, and Trident on the other hand, shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company or the Bank or by Trident and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
The Company and the Bank and Trident agree that it would not be just and
equitable if contribution pursuant to this Section 9 were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to in the immediately preceding paragraph.
The amount paid or payable by an indemnified party as a result of the losses,
claims, damages, liabilities or judgments referred to in the immediately
preceding paragraph shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses reasonably incurred by the indemnified
party in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 9, Trident shall not be required
to contribute any amount in excess of the amount by which fees owed Trident
pursuant to this Agreement exceeds the amount of any damages which Trident has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who is not guilty of such fraudulent
misrepresentation. To the extent required by law, this Section 9 is subject to
and limited by the provisions of Section 23A.
10. Survival of Agreements, Representations and Indemnities. The
--------------------------------------------------------
respective indemnities of the Company and the Bank and Trident and the
representation and warranties of the Company and the Bank and of Trident set
forth in or made pursuant to this Agreement shall remain in full force and
effect, regardless of any termination or cancellation of this Agreement or any
investigation made by or on behalf of Trident or the Company or the Bank or any
controlling person or indemnified party referred to in Section 8 hereof, and
shall survive any termination or consummation of this Agreement and/or the
issuance of the Shares, and any legal representative of Trident, the Company,
the Bank and any such controlling persons shall be entitled to the benefit of
the respective agreements, indemnities, warranties and representations.
11. Termination. Trident may terminate this Agreement by giving the
-----------
notice indicated below in this Section at any time after this Agreement becomes
effective as follows:
(a) If any domestic or international event or act or occurrence has
materially disrupted the United States securities markets such as to make
it, in Trident's reasonable opinion, impracticable to proceed with the
offering of the Shares; or if trading on the New York Stock Exchange shall
have suspended; or if the United States shall have become involved in a war
or major hostilities; or if a general banking moratorium has been declared
Trident Securities, Inc.
Page 27
by a state or federal authority which has material effect on the Bank or
the Conversion; or if a moratorium in foreign exchange trading by major
international banks or persons has been declared; or if there shall have
been a material change in the capitalization, condition or business of the
Company, or if the Bank shall have sustained a material or substantial loss
by fire, flood, accident, hurricane, earthquake, theft, sabotage or other
calamity or malicious act, whether or not said loss shall have been
insured; or if there shall have been a material change in the condition or
prospects of the Company or the Bank.
(b) If Trident elects to terminate this Agreement as provided in this
Section, the Company and the Bank shall be notified promptly by Trident by
telephone or telegram, confirmed by letter.
(c) If this Agreement is terminated by Trident for any of the reasons
set forth in subsection (a) above, and to fulfill its obligations, if any,
pursuant to Sections 3, 6, 8(a) and 9 of this Agreement and upon demand,
the Company and the Bank shall pay Trident the full amount so owing
thereunder.
(d) The Bank may terminate the Conversion in accordance with the
terms of the Plan. Such termination shall be without liability to any
party, except that the Company and the Bank shall be required to fulfill
their obligations pursuant to Sections 3(b), 3(c), 6, 8(a) and 9 of this
Agreement.
12. Notices. All communications hereunder, except as herein otherwise
-------
specifically provided, shall be in writing and if sent to Trident shall be
mailed, delivered or telegraphed and confirmed to Trident Securities, Inc., 4601
Six Forks Road, Suite 400, Raleigh, North Carolina 27609, Attention: Mr. R. Lee
Burrows, Jr. (with a copy to Thacher Proffitt & Wood, 1500 K Street, N.W., Suite
200, Washington, D.C. 20005, Attention: Richard A. Schaberg, Esquire) and, if
sent to the Company or the Bank, shall be mailed, delivered or telegraphed and
confirmed to Northfield Bancorp, Inc. or Northfield Federal Savings Bank, as the
case may be, 8005 Harford Road, Baltimore, Maryland 21234, Attention Mr. G.
Ronald Dobson, President (with a copy to Housley Kantarian & Bronstein, P.C.,
1220 19/th/ Street, N.W., Washington, DC 20036, Attention: Cynthia R. Cross,
Esquire).
13. Parties. This Agreement shall inure solely to the benefit of, and
-------
shall be binding upon, Trident, the Company, the Bank and the controlling and
other persons referred to in Section 8 hereof, and their respective successors,
legal representatives and assigns, and no other person shall have or be
construed to have any legal or equitable right, remedy or claim under or in
respect of or by virtue of this Agreement or any provision herein contained.
14. Construction. Unless governed by preemptive federal law, this
------------
Agreement shall be governed by and construed in accordance with the substantive
laws of Maryland.
Trident Securities, Inc.
Page 28
15. Counterparts and Definitions. This Agreement may be executed in
----------------------------
separate counterparts, each of which when so executed and delivered shall be an
original, but all of which together shall constitute but one and the same
instrument. Any initially capitalized terms not defined herein shall have the
meanings ascribed thereto in the Prospectus.
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Trident Securities, Inc.
Page 29
Please acknowledge your agreement to the foregoing by signing below and
returning to the Company one copy of this letter.
NORTHFIELD BANCORP, INC. NORTHFIELD FEDERAL SAVINGS BANK
By: __________________________ By: _______________________________
G. Ronald Jobson G. Ronald Jobson
President President
Date: Date:
Agreed to and accepted:
TRIDENT SECURITIES, INC.
By: __________________________
R. Lee Burrows, Jr.
Date: