DRAFT
FORM OF AGREEMENT
_______________ Shares
(subject to increase up to____________ shares
in the event of an oversubscription)
Ocean Financial Corp.
(a Delaware corporation)
Common Stock
(par value $.01 per share)
AGENCY AGREEMENT
May ____, 1996
Sandler O'Neill & Partners, L.P.
Two World Trade Center, 104th Floor
New York, New York 10048
Ladies and Gentlemen:
Ocean Financial Corp., a Delaware corporation (the "Company"), and Ocean
Federal Savings Bank, a federal savings bank (the "Bank"), hereby confirm their
agreement with Sandler O'Neill & Partners, L.P. ("Sandler O'Neill" or the
"Agent") with respect to the offer and sale by the Company of _________ shares
(subject to increase up to __________ shares in the event of an
oversubscription) of the Company's Common Stock, par value $.01 per share (the
"Common Stock"). The shares of Common Stock to be sold by the Company are
hereinafter called the "Securities".
The Securities are being offered in accordance with the plan of conversion
(the "Plan") adopted by the Board of Directors of the Bank pursuant to which the
Bank intends to convert from a federally chartered mutual savings bank to a
federally chartered stock savings bank and issue all of its stock to the
Company. Pursuant to the Plan, the Company is offering to certain of the Bank's
depositors and borrowers and its tax qualified employee benefit plans (the
"Employee Plans") rights to subscribe for the Securities in a subscription
offering (the "Subscription Offering"). To the extent Securities are not
subscribed for in the Subscription Offering, such Securities may be offered to
certain members of the general
public, with preference given to certain natural persons residing in Ocean,
Middlesex and Monmouth Counties, New Jersey in a direct community offering (the
"Community Offering" and together with the Subscription Offering, as each may be
extended or reopened from time to time, the "Subscription/Community Offering")
to be commenced concurrently with the Subscription Offering. It is currently
anticipated by the Bank and the Company that any Securities not subscribed for
in the Subscription/Community Offering will be offered, subject to Section 3
hereof, in a syndicated community offering (the "Syndicated Community
Offering"). The Subscription Offering and the Syndicated Community Offering are
hereinafter referred to collectively as the "Offerings", and the conversion of
the Bank from mutual to stock form, the acquisition of all of the capital stock
of the Bank by the Company and the Offerings are hereinafter referred to
collectively as the "Conversion". It is acknowledged that the number of
Securities to be sold in the Conversion may be increased or decreased as
described in the Prospectus (as hereinafter defined). If the number of
Securities is increased or decreased in accordance with the Plan, the term
"Securities" shall mean such greater or lesser number, where applicable. In the
event that a holding company form of organization is not utilized, all pertinent
terms of this Agreement will apply to the conversion of the Bank from the mutual
to stock form of organization and the sale of the Bank's common stock.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-1 (No. 33-80123), including a
related prospectus, for the registration of the Securities under the Securities
Act of 1933, as amended (the "1933 Act"), has filed such amendments thereto, if
any, and such amended prospectuses as may have been required to the date hereof
by the Commission in order to declare such registration statement effective, and
will file such additional amendments thereto and such amended prospectuses and
prospectus supplements as may hereafter be required. Such registration statement
(as amended to date, if applicable, and as from time to time amended or
supplemented hereafter) and the prospectus constituting a part thereof
(including in each case all documents incorporated or deemed to be incorporated
by reference therein and the information, if any, deemed to be part thereof
pursuant to the rules and regulations of the Commission under the 1933 Act, as
from time to time amended or supplemented pursuant to the 1933 Act or otherwise
(the "1933 Act Regulations")), are hereinafter referred to as the "Registration
Statement" and the "Prospectus," respectively, except that if any revised
prospectus shall be used by the Company in connection with the
Subscription/Community Offering or the Syndicated Community Offering which
differs from the Prospectus on file at the Commission at the time the
Registration Statement becomes effective (whether or not such revised prospectus
is required to be filed by the Company pursuant to Rule 424(b) of the 1933 Act
Regulations), the term "Prospectus" shall refer to such revised prospectus from
and after the time it is first provided to the Agent for such use.
Concurrently with the execution of this Agreement, the Company is
delivering to the Agent copies of the Prospectus of the Company to be used in
the Subscription/Community Offering. Such Prospectus contains information with
respect to the Bank, the Company and the Common Stock.
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SECTION 1. Representations and Warranties.
(a) The Company and the Bank jointly and severally represent and warrant
to the Agent as of the date hereof as follows:
(i) The Registration Statement has been declared effective by the
Commission, no stop order has been issued with respect thereto and no
proceedings therefor have been initiated or, to the knowledge of the Company and
the Bank, threatened by the Commission. At the time the Registration Statement
became effective and at the Closing Time referred to in Section 2 hereof, the
Registration Statement complied and will comply in all material respects with
the requirements of the 1933 Act and the 1933 Act Regulations and did not and
will not contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading. The Prospectus, at the date hereof does not and at the
Closing Time referred to in Section 2 hereof will not, include an untrue
statement of a material fact or omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances under which
they were made, not misleading; provided, however, that the representations and
warranties in this subsection shall not apply to statements in or omissions from
the Registration Statement or Prospectus made in reliance upon and in conformity
with information with respect to the Agent furnished to the Company in writing
by the Agent expressly for use in the Registration Statement or Prospectus (the
"Agent Information", which the Company and the Bank acknowledge appears only in
the sections captioned "Market for Common Stock" and "The Conversion Marketing
and Underwriting Agreements" and "Syndicated Community Offering" of the
Prospectus).
(ii) The Company has filed with the Department of the Treasury, Office
of Thrift Supervision (the "OTS") the Company's application for approval of its
acquisition of the Bank (the "Holding Company Application") on Form H-(e)1-S
promulgated under the savings and loan holding company provisions of the Home
Owner's Loan Act ("HOLA") and the regulations promulgated thereunder. The
Company has received written notice from the OTS of its approval of the
acquisition of the Bank, such approval remains in full force and effect and no
order has been issued by the OTS suspending or revoking such approval and no
proceedings therefor have been initiated or, to the knowledge of the Company or
the Bank, threatened by the OTS. At the date of such approval and at the Closing
Time referred to in Section 2, the Holding Company Application complied and will
comply in all material respects with the applicable provisions of HOLA and the
regulations promulgated thereunder.
(iii) Pursuant to the rules and regulations of the OTS governing the
conversion of federally chartered mutual savings associations to stock form (the
"Conversion Regulations"), the Bank has filed with the OTS an application for
conversion on Form AC, and has filed such amendments thereto and supplementary
materials as may have been required to the date hereof (such application, as
amended to date, if applicable, and as from time to time amended or supplemented
hereafter, is hereinafter referred to as the "Conversion Application"),
including copies of the Bank's Proxy Statement, dated May
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___, 1996, relating to the Conversion (the "Proxy Statement"), and the
Prospectus. The OTS has, by letter dated May __, 1996, approved the Conversion
Application, such approval remains in full force and effect and no order has
been issued by the OTS suspending or revoking such approval and no proceedings
therefor have been initiated or, to the knowledge of the Company or the Bank,
threatened by the OTS. At the date of such approval and at the Closing Time
referred to in Section 2 the Conversion Application complied and will comply in
all material respects with the applicable provisions of the Conversion
Regulations.
(iv) At the time of their use, the Proxy Statement and any other proxy
solicitation materials will comply in all material respects with the applicable
provisions of the Conversion Regulations and will not contain an untrue
statement of a material fact or omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances under which
they were made, not misleading. The Prospectus and all supplemental sales
literature, as of the date the Registration Statement became effective and at
the Closing Time referred to in Section 2, complied and will comply in all
material respects with the applicable requirements of the Conversion Regulations
and, at or prior to the time of their first use, will have received all required
authorizations of the OTS for use in final form.
(v) The OTS has not, by order or otherwise, prevented or suspended the
use of the Prospectus or any supplemental sales literature authorized by the
Company or the Bank for use in connection with the Offerings.
(vi) At the Closing Time referred to in Section 2, the Company and the
Bank will have completed the conditions precedent to the Conversion in
accordance with the Plan, the applicable Conversion Regulations and all other
applicable laws, regulations, decisions and orders, including all material
terms, conditions, requirements and provisions precedent to the Conversion
imposed upon the Company or the Bank by the OTS, the Federal Deposit Insurance
Corporation (the "FDIC"), or any other regulatory authority, other than those
which the regulatory authority permits to be completed after the Conversion.
(vii) RP Financial, Inc., which prepared the valuation of the Bank as
part of the Conversion, satisfies all requirements for an appraiser set forth in
the Conversion Regulations.
(viii) The accountants who certified the financial statements and
supporting schedules of the Bank included in the Registration Statement are
independent public accountants within the meaning of the Code of Ethics of the
American Institute of Certified Public Accountants, and such accountants are,
with respect to the Company, the Bank and each subsidiary of the Bank,
independent certified public accountants as required by the 1933 Act and the
1933 Act Regulations.
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(ix) The consolidated financial statements and the related notes
thereto included in the Registration Statement and the Prospectus present fairly
the financial position of the Company, the Bank and its consolidated subsidiary
as at the dates indicated and the results of operations, retained earnings and
cash flows for the periods specified, and comply as to form in all material
respects with the applicable accounting requirements of the 1933 Act Regulations
and the Conversion Regulations; except as otherwise stated in the Registration
Statement, said financial statements have been prepared in conformity with
generally accepted accounting principles applied on a consistent basis; and the
supporting schedules and tables included in the Registration Statement present
fairly the information required to be stated therein.
(x) Since the respective dates as of which information is given in the
Registration Statement and the Prospectus, except as otherwise stated therein
(A) there has been no material adverse change in the financial condition,
results of operations or business affairs of the Company, the Bank and its
subsidiary considered as one enterprise, whether or not arising in the ordinary
course of business, and (B) except for transactions specifically referred to or
contemplated in the Prospectus, there have been no transactions entered into by
the Company, the Bank or its subsidiary, other than those in the ordinary course
of business, which are material with respect to the Company, the Bank and its
subsidiary considered as one enterprise.
(xi) The Company has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the State of Delaware with
corporate power and authority to own, lease and operate its properties and to
conduct its business as described in the Prospectus and to enter into and
perform its obligations under this Agreement; and the Company is duly qualified
as a foreign corporation to transact business in each jurisdiction in which such
qualification is required, whether by reason of the ownership or leasing of
property or the conduct of business, except where the failure to so qualify
would not have a material adverse effect on the financial condition, results of
operations or business affairs of the Company, the Bank and its subsidiary
considered as one enterprise.
(xii) Upon consummation of the Conversion, the authorized, issued and
outstanding capital stock of the Company will be within the range set forth in
the Prospectus under "Capitalization" (except for subsequent issuances, if any,
pursuant to reservations, agreements or employee benefit plans referred to in
the Prospectus); except for shares issued in connection with the initial
capitalization of the Company, which shares will be canceled upon consummation
of the Conversion, no shares of Common Stock have been or will be issued and
outstanding prior to the Closing Time referred to in Section 2; at the time of
Conversion, the Securities will have been duly authorized for issuance and, when
issued and delivered by the Company pursuant to the Plan against payment of the
consideration calculated as set forth in the Plan, will be duly and validly
issued and fully paid and non-assessable; the terms and provisions of the Common
Stock and the capital stock of the Company conform to all statements relating
thereto contained in the Prospectus; and the issuance of the Securities is not
subject to preemptive or other similar rights.
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(xiii) The Bank, as of the date hereof, is a federally chartered
savings bank in mutual form and upon consummation of the Conversion will be a
federally chartered savings bank in stock form, in both instances with full
corporate power and authority to own, lease and operate its properties and to
conduct its business as described in the Prospectus; the Company, the Bank and
its subsidiary have obtained all licenses, permits and other governmental
authorizations currently required for the conduct of their respective businesses
or required for the conduct of their respective businesses as contemplated by
the Holding Company Application and the Conversion Application, except where the
failure to obtain such licenses, permits or other governmental authorizations
would not have a material adverse effect on the financial condition, results of
operations or business affairs of the Company, the Bank and its subsidiary
considered as one enterprise; all such licenses, permits and other governmental
authorizations are in full force and effect and the Company, the Bank and its
subsidiary are in all material respects in compliance therewith; neither the
Company, the Bank nor the Bank's subsidiary has received notice of any
proceeding or action relating to the revocation or modification of any such
license, permit or other governmental authorization which, singly or in the
aggregate, if the subject of an unfavorable decision, ruling or finding, might
have a material adverse effect on the financial condition, results of operations
or business affairs of the Company, the Bank and its subsidiary, considered as
one enterprise; and the Bank is in good standing under the laws of the United
States and is qualified as a foreign corporation in any jurisdiction in which
the failure to so qualify would have a material adverse effect on the financial
condition, results of operations or business affairs of the Company, the Bank
and its subsidiary considered as one enterprise.
(xiv) The deposit accounts of the Bank are insured by the FDIC and
upon consummation of the Conversion, the liquidation account for the benefit of
eligible account holders and supplemental eligible account holders will be duly
established in accordance with the requirements of the Conversion Regulations.
(xv) No shares of Bank common stock have been or will be issued prior
to the Closing Time referred to in Section 2; and as of Closing Time referred to
in Section 2, all of the issued and outstanding capital stock of the Bank will
be duly authorized, validly issued and fully paid and nonassessable, and all
such capital stock will be owned beneficially and of record by the Company free
and clear of any mortgage, pledge, lien, encumbrance or claim.
(xvi) The only subsidiary of the Bank, Dome Financial Services, Inc.,
has been duly incorporated and is validly existing as a corporation in good
standing under the laws of the jurisdiction of its incorporation, has full
corporate power and authority to own, lease and operate its properties and to
conduct its business as described in the Registration Statement and Prospectus,
and is duly qualified to transact business and is in good standing in each
jurisdiction in which such qualification is required, whether by reason of the
ownership or leasing of property or the conduct of business except where the
failure to so qualify would not have a material adverse effect on the financial
condition, results of operations or business affairs of the Company, the Bank
and its subsidiary considered as one enterprise; the activities of such
subsidiary are permitted to subsidiaries of a federally
6
chartered savings bank by the rules, regulations, resolutions and practices of
the OTS; all of the issued and outstanding capital stock of such subsidiary has
been duly authorized and validly issued, is fully paid and nonassessable and is
owned by the Bank directly, free and clear of any security interest, mortgage,
pledge, lien, encumbrance, claim or equity; and the Bank has no indirect
subsidiaries.
(xvii) The Company and the Bank have taken all corporate action
necessary for them to execute, deliver and perform this Agreement, and this
Agreement has been duly executed and delivered by, and is the valid and binding
agreement of, the Company and the Bank, enforceable in accordance with its
terms, except as may be limited by bankruptcy, insolvency or other laws
affecting the enforceability of the rights of creditors generally and judicial
limitations on the right of specific performance and except as the
enforceability of indemnification and contribution provisions may be limited by
applicable securities laws.
(xviii) Subsequent to the respective dates as of which information is
given in the Registration Statement and the Prospectus and prior to the Closing
Time, except as otherwise may be indicated or contemplated therein, none of the
Company, the Bank or the subsidiary of the Bank will have (A) issued any
securities or incurred any material liability or obligation, direct or
contingent, or borrowed money, except borrowings in the ordinary course of
business from the same or similar sources and in similar amounts as indicated in
the Prospectus, or (B) entered into any transaction or series of transactions
which is material in light of the business of the Company, the Bank and its
subsidiary, taken as a whole, excluding the origination and sale of loans or the
purchase of investment securities or mortgage-backed securities in the ordinary
course of business or otherwise as indicated in the Prospectus.
(xix) No approval of any regulatory or supervisory or other public
authority is required in connection with the execution and delivery of this
Agreement or the issuance of the Securities, except for the declaration of
effectiveness of any required post-effective amendment to the Registration
Statement by the Commission and approval thereof by the OTS, the issuance of the
federal stock charter by the OTS and as may be required under the securities
laws of various jurisdictions.
(xx) Neither the Company, the Bank nor the Bank's subsidiary is in
violation of its certificate of incorporation, articles of incorporation or
charter or bylaws, as the case may be (and the Bank will not be in violation of
its charter or bylaws in stock form upon consummation of the Conversion); and
neither the Company, the Bank nor any of the Bank's subsidiary is in default
(nor has any event occurred which, with notice or lapse of time or both, would
constitute a default) in the performance or observance of any obligation,
agreement, covenant or condition contained in any contract, indenture, mortgage,
loan agreement, note, lease or other instrument to which the Company, the Bank
or any of its subsidiary is a party or by which it or any of them may be bound,
or to which any of the property or assets of the Company, the Bank or any of its
subsidiary is subject, except for such defaults that would not, individually or
in the aggregate, have a material adverse effect
7
on the financial condition, results of operations or business of the Company,
the Bank and its subsidiary considered as one enterprise.
(xxi) The execution, delivery and performance of this Agreement and
the consummation of the transactions contemplated herein have been duly
authorized by all necessary corporate action and do not and will not conflict
with or constitute a breach of, or default under, or result in the creation or
imposition of any lien, charge or encumbrance upon any property or assets of the
Company, the Bank or its subsidiary pursuant to, any contract, indenture,
mortgage, loan agreement, note, lease or other instrument to which the Company,
the Bank or its subsidiary is a party or by which it or any of them may be
bound, or to which any of the property or assets of the Company or any of its
subsidiary is subject, except for such defaults that would not, individually or
in the aggregate, have a material adverse effect on the financial condition,
results of operations or business affairs of the Company, the Bank and its
subsidiary considered as one enterprise; nor will such action result in any
violation of the provisions of the certificate of incorporation, articles of
incorporation or charter, as the case may be, or bylaws of the Company, the Bank
or its subsidiary; nor will such action result in any violation of any
applicable law, administrative regulation or administrative or court decree.
(xxii) No labor dispute with the employees of the Company, the Bank or
any of its subsidiary exists or, to the knowledge of the Company or the Bank, is
imminent; and the Company is not aware of any existing or imminent labor
disturbance by the employees of any of its principal suppliers or contractors
which might be expected to result in any material adverse change in the
financial condition, results of operations or business affairs of the Company,
the Bank and its subsidiary considered as one enterprise.
(xxiii) The Company, the Bank and its subsidiary have good and
marketable title to all properties and assets for which ownership is material to
the business of the Company, the Bank or its subsidiary and to those properties
and assets described in the Prospectus as owned by them, free and clear of all
liens, charges, encumbrances or restrictions, except such as are described in
the Prospectus or are not material in relation to the business of the Company,
the Bank or its subsidiary considered as one enterprise; and all of the leases
and subleases material to the business of the Company, the Bank or its
subsidiary under which the Company, the Bank or its subsidiary hold properties,
including those described in the Prospectus, are valid and binding agreements of
the Company, the Bank and its subsidiary, enforceable in accordance with their
terms.
(xxiv) The Company, the Bank and its subsidiary are not in violation
of any directive from the OTS or the FDIC to make any material change in the
method of conducting their respective businesses; the Bank and its subsidiary
have conducted and are conducting their business so as to comply in all material
respects with all applicable statutes, regulations and administrative and court
decrees (including, without limitation, all regulations, decisions, directives
and orders of the OTS or the FDIC).
8
(xxv) There is no action, suit or proceeding before or by any court or
governmental agency or body, domestic or foreign, now pending, or, to the
knowledge of the Company or the Bank, threatened, against or affecting the
Company, the Bank or any of its subsidiary which is required to be disclosed in
the Registration Statement (other than as disclosed therein), or which might
result in any material adverse change in the financial condition, results of
operations or business affairs of the Company, the Bank and its subsidiary
considered as one enterprise, or which might materially and adversely affect the
properties or assets thereof or which might materially and adversely affect the
consummation of the Conversion; all pending legal or governmental proceedings to
which the Company, the Bank or any subsidiary is a party or of which any of
their respective property or assets is the subject which are not described in
the Registration Statement, including ordinary routine litigation incidental to
the business, are considered in the aggregate not material; and there are no
contracts or documents of the Company, the Bank or its subsidiary which are
required to be filed as exhibits to the Registration Statement or the Conversion
Application which have not been so filed.
(xxvi) The Bank has obtained an opinion of its counsel, Muldoon,
Murphy & Faucette, with respect to the legality of the Securities to be issued
and the federal and the New Jersey income tax consequences of the Conversion,
copies of which are filed as exhibits to the Registration Statement; all
material aspects of the aforesaid opinions are accurately summarized in the
Prospectus; the facts and representations upon which such opinions are based are
truthful, accurate and complete in all material respects; and neither the Bank
nor the Company has taken any action inconsistent therewith.
(xxvii) The Company is not required to be registered under the
Investment Company Act of 1940, as amended.
(xxviii) All of the loans represented as assets on the most recent
financial statements or selected financial information of the Bank included in
the Prospectus meet or are exempt from all requirements of federal, state or
local law pertaining to lending, including without limitation truth in lending
(including the requirements of Regulations 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,
except for violations which, if asserted, would not result in a material adverse
effect on the financial condition, results of operations or business of the
Company, the Bank and its subsidiary considered as one enterprise.
(xxix) To the knowledge of the Company and the Bank, none of the
Company, the Bank or employees of the Bank has made any payment of funds of the
Company or the Bank as a loan for the purchase of the Common Stock or made any
other payment of funds prohibited by law, and no funds have been set aside to be
used for any payment prohibited by law.
(xxx) The Company, the Bank and its subsidiary are in compliance in
all material respects with the applicable financial recordkeeping and reporting
requirements of
9
the Currency and Foreign Transaction Reporting Act of 1970, as amended and the
rules and regulations thereunder.
(xxxi) Neither the Company, the Bank nor its subsidiary nor any
properties owned or operated by the Company, the Bank or its subsidiary is in
violation of or liable under any Environmental Law (as defined below), except
for such violations or liabilities that, individually or in the aggregate, would
not have a material adverse effect on the financial condition, results of
operations or business affairs of the Company, the Bank and the subsidiary
considered as one enterprise. There are no actions, suits or proceedings, or
demands, claims, notices or investigations (including, without limitation,
notices, demand letters or requests for information from any environmental
agency) instituted or pending, or to the knowledge of the Company or the Bank,
threatened, relating to the liability of any property owned or operated by the
Company, the Bank or the subsidiary thereof, under any Environmental Law. For
purposes of this subsection, the term "Environmental Law" means any federal,
state, local or foreign law, statute, ordinance, rule, regulation, code,
license, permit, authorization, approval, consent, order, judgment, decree,
injunction or agreement with any regulatory authority relating to (i) the
protection, preservation or restoration of the environment (including, without
limitation, air, water, vapor, surface water, groundwater, drinking water
supply, surface soil, subsurface soil, plant and animal life or any other
natural resource), and/or (ii) the use, storage, recycling, treatment,
generation, transportation, processing, handling, labeling, production, release
or disposal of any substance presently listed, defined, designated or classified
as hazardous, toxic, radioactive or dangerous, or otherwise regulated, whether
by type or by quantity, including any material containing any such substance as
a component.
(xxxii) The Company, the Bank and its subsidiary have filed all
federal income and state and local franchise tax returns required to be filed
and have made timely payments of all taxes shown as due and payable in respect
of such returns, and no deficiency has been asserted with respect thereto by any
taxing authority.
(xxxiii) The Company has received approval, subject to regulatory
approval to consummate the Offerings and issuance, to have the Securities quoted
on the Nasdaq Stock Market ("Nasdaq National Market") effective as of the
Closing Time.
(b) Any certificate signed by any officer of the Company or the Bank and
delivered to either of the Agent or counsel for the Agent shall be deemed a
representation and warranty by the Company or the Bank to each Agent as to the
matters covered thereby.
SECTION 2. Appointment of Sandler O'Neill; Sale and Delivery of the
Securities; Closing.
On the basis of the representations and warranties herein contained and
subject to the terms and conditions herein set forth, the Company hereby
appoints Sandler O'Neill as its Agent to consult with and advise the Company,
and to assist the Company with the solicitation of subscriptions and purchase
orders for Securities, in connection with the
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Company's sale of Common Stock in the Subscription/Community Offering and the
Syndicated Community Offering. On the basis of the representations and
warranties herein contained, and subject to the terms and conditions herein set
forth, Sandler O'Neill hereby accepts such appointment and agrees to use its
best efforts to assist the Company with the solicitation of subscriptions and
purchase orders for Securities in accordance with this Agreement; provided,
however, that the Agent shall not be obligated to take any action which is
inconsistent with any applicable laws, regulations, decisions or orders. The
services to be rendered by Sandler O'Neill pursuant to this appointment include
the following: (i) consulting as to the securities marketing implications of any
aspect of the Plan of Conversion or related corporate documents; (ii) reviewing
with the Board of Directors the independent appraiser's appraisal of the Common
Stock; (iii) reviewing all offering documents, including the Prospectus, stock
order form and related offering materials (it being understood that preparation
and filing of such documents is the sole responsibility of the Company and the
Bank and their counsel); (iv) assisting in the design and implementation of a
marketing strategy for the Offerings; (v) providing support to the Company and
the Bank in obtaining all requisite regulatory approvals; (vi) assisting Bank
management in preparing for meetings with potential investors and broker-
dealers; and (vii) providing such other general advice and assistance as may be
requested to promote the successful completion of the Offerings.
The appointment of the Agent hereunder shall terminate upon the earlier to
occur of (a) forty-five (45) days after the last day of the
Subscription/Community Offering, unless the Company and the Agent agree in
writing to extend such period and the OTS agrees to extend the period of time in
which the Shares may be sold, or (b) the receipt and acceptance of subscriptions
and purchase orders for all of the Securities.
If any of the Securities remain available after the expiration of the
Subscription/Community Offering, at the request of the Company and the Bank, the
Agent will seek to form a syndicate of registered broker or dealers ("Selected
Dealers") to assist in the solicitation of purchase orders of such Securities on
a best efforts basis, subject to the terms and conditions set forth in a
selected dealers' agreement (the "Selected Dealers' Agreement"), substantially
in the form set forth in Exhibit A to this Agreement. Sandler O'Neill will
endeavor to limit the aggregate fees to be paid by the Company and the Bank
under any such Selected Dealers' Agreement to an amount competitive with gross
underwriting discounts charged at such time for underwritings of comparable
amounts of stock sold at a comparable price per share in a similar market
environment; provided, however, that the aggregate fees payable to the Agent and
Selected Dealers shall not exceed 7% of the aggregate Actual Purchase Price (as
defined in the Prospectus) of the Securities sold by such Selected Dealers. The
Agent will endeavor to distribute the Securities among the Selected Dealers in a
fashion which best meets the distribution objective of the Company and the
requirements of the Plan, which may result in limiting the allocation of stock
to certain Selected Dealers. It is understood that in no event shall the Agent
be obligated to act as a Selected Dealer or to take or purchase any Securities.
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In the event the Company is unable to sell at least the total minimum of
the Securities, as set forth on the cover page of the Prospectus, within the
period herein provided, this Agreement shall terminate and the Company shall
refund to any persons who have subscribed for any of the Securities the full
amount which it may have received from them, together with interest as provided
in the Prospectus, and no party to this Agreement shall have any obligation to
the others hereunder, except for the obligations of the Company and the Bank as
set forth in Sections 4, 6(a) and 7 hereof and the obligations of the Agent as
provided in Sections 6(b) and 7 hereof. Appropriate arrangements for placing the
funds received from subscriptions for Securities or other offers to purchase
Securities in special interest-bearing accounts with the Bank until all
Securities are sold and paid for were made prior to the commencement of the
Subscription Offering, with provision for refund to the purchasers as set forth
above, or for delivery to the Company if all Securities are sold.
If at least the total minimum of Securities, as set forth on the cover page
of the Prospectus, are sold, the Company agrees to issue or have issued the
Securities sold and to release for delivery certificates for such Securities at
the Closing Time against payment therefor by release of funds from the special
interest-bearing accounts referred to above. The closing shall be held at the
offices of Muldoon, Murphy & Faucette, at 10:00 a.m., local time, or at such
other place and time as shall be agreed upon by the parties hereto, on a
business day to be agreed upon by the parties hereto. The Company shall notify
the Agent by telephone, confirmed in writing, when funds shall have been
received for all the Securities. Certificates for Securities shall be delivered
directly to the purchasers thereof in accordance with their directions.
Notwithstanding the foregoing, certificates for Securities purchased through
Selected Dealers shall be made available to the Agent for inspection at least 48
hours prior to the Closing Time at such office as the Agent shall designate.
The hour and date upon which the Company shall release for delivery all of the
Securities, in accordance with the terms hereof, is herein called the "Closing
Time."
The Company will pay any stock issue and transfer taxes which may be
payable with respect to the sale of the Securities.
In addition to reimbursement of the expenses specified in Section 4 hereof,
the Agent will receive the following compensation for its services hereunder:
(a) One and three quarters percent (1.75%) of the aggregate
Actual Purchase Price of the Securities sold in the Subscription
Offering or purchased by members of the general public, in the
Community Offering, excluding in each case shares purchased by (i) any
employee benefit plan of the Bank or Company established for the
benefit of their respective directors, officers and employees and any
director, officer or employee of the Bank or members of their
immediate families which term shall mean parents, spouse, siblings,
children and grandchildren; and
(b) with respect to any Securities sold by a National Association
of Securities Dealers, Inc. ("NASD") member firm (other than Sandler
O'Neill)
12
under the Selected Dealers' Agreement in the Syndicated Community
Offering, (i) the compensation payable to Selected Dealers under any
Selected Dealers' Agreement, (ii) any sponsoring dealer's fees; and
(iii) a management fee to Sandler O'Neill of one and one-half percent
(1.5%). Any fees payable to Sandler O'Neill for Securities sold by
Sandler O'Neill under any such agreement shall be limited to an
aggregate of one and three quarters percent (1.75%) of the Actual
Purchase Price of such Securities.
If this Agreement is terminated by the Agent in accordance with the
provisions of Section 9(a) hereof or the Conversion is terminated by the
Company, no fee shall be payable by the Company to Sandler O'Neill;
provided,however, the Company shall reimburse the Agent for all of its
reasonable out-of-pocket expenses incurred prior to termination, including the
reasonable fees and disbursements of counsel for the Agent in accordance with
the provisions of Section 4 hereof.
All fees payable to the Agent hereunder shall be payable in immediately
available funds at Closing Time, or upon the termination of this Agreement, as
the case may be. In recognition of the long lead times involved in the
conversion process, the Bank agrees to make advance payments to Sandler O'Neill
in the aggregate amount of $50,000, $25,000 of which has been previously paid
and the remaining $25,000 of which shall be payable upon execution hereof, which
shall be credited against any fees or reimbursement of expenses payable
hereunder.
SECTION 3. Covenants of the Company.
The Company and the Bank covenant with the Agent as follows:
(a) The Company and the Bank will prepare and file such amendments or
supplements to the Registration Statement, the Prospectus, the Conversion
Application and the Proxy Statement as may hereafter be required by the 1933 Act
Regulations or the Conversion Regulations or as may hereafter be requested by
the Agent. The Company and the Bank will promptly file the Prospectus and any
supplemental sales literature with the OTS. Following completion of the
Subscription/Community Offering, in the event of a Syndicated Community
Offering, the Company and the Bank will (i) promptly prepare and file with the
Commission a post-effective amendment to the Registration Statement relating to
the results of the Subscription/Community Offering, any additional information
with respect to the proposed plan of distribution and any revised pricing
information or (ii) if no such post-effective amendment is required, will file
with, or mail for filing to, the Commission a prospectus or prospectus
supplement containing information relating to the results of the
Subscription/Community Offering and pricing information pursuant to Rule 424(c)
of the 1933 Act Regulations, in either case in a form acceptable to the Agent.
The Company and the Bank will notify the Agent immediately, and confirm the
notice in writing, (i) of the effectiveness of any post-effective amendment of
the Registration Statement, the filing of any supplement to the Prospectus and
the filing of any amendment to the Conversion Application, (ii) of the receipt
of any comments from the OTS or the
13
Commission with respect to the transactions contemplated by this Agreement or
the Plan, (iii) of any request by the Commission or the OTS for any amendment to
the Registration Statement or the Conversion Application or any amendment or
supplement to the Prospectus or for additional information, (iv) of the issuance
by the OTS of any order suspending the Offerings or the use of the Prospectus or
the initiation of any proceedings for that purpose, (v) of the issuance by the
Commission of any stop order suspending the effectiveness of the Registration
Statement or the initiation of any proceedings for that purpose, and (vi) of the
receipt of any notice with respect to the suspension of any qualification of the
Securities for offering or sale in any jurisdiction. The Company and the Bank
will make every reasonable effort to prevent the issuance of any stop order and,
if any stop order is issued, to obtain the lifting thereof at the earliest
possible moment.
(b) The Company and the Bank will give the Agent notice of its intention to
file or prepare any amendment to the Conversion Application or Registration
Statement (including any post-effective amendment) or any amendment or
supplement to the Prospectus (including any revised prospectus which the Company
proposes for use in connection with the Syndicated Community Offering of the
Securities which differs from the prospectus on file at the Commission at the
time the Registration Statement becomes effective, whether or not such revised
prospectus is required to be filed pursuant to Rule 424(b) of the 1933 Act
Regulations), will furnish the Agent with copies of any such amendment or
supplement a reasonable amount of time prior to such proposed filing or use, as
the case may be, and will not file any such amendment or supplement or use any
such prospectus to which the Agent or counsel for the Agent may object.
(c) The Company and the Bank will deliver to the Agent as many signed
copies and as many conformed copies of the Conversion Application and the
Registration Statement as originally filed and of each amendment thereto
(including exhibits filed therewith or incorporated by reference therein) as the
Agent may reasonably request, and from time to time such number of copies of
the Prospectus as the Agent may reasonably request.
(d) During the period when the Prospectus is required to be delivered, the
Company and the Bank will comply, at their own expense, with all requirements
imposed upon them by the OTS, by the applicable Conversion Regulations, as from
time to time in force, and by the 1933 Act, the 1933 Act Regulations, the
Securities Exchange Act of 1934, as amended (the "1934 Act"), and the rules and
regulations of the Commission promulgated thereunder, including, without
limitation, Rule 10b-6 under the 1934 Act, so far as necessary to permit the
continuance of sales or dealing in shares of Common Stock during such period in
accordance with the provisions hereof and the Prospectus.
(e) If any event or circumstance shall occur as a result of which it is
necessary, in the reasonable opinion of counsel for the Agent, to amend or
supplement the Prospectus in order to make the Prospectus not misleading in the
light of the circumstances existing at the time it is delivered to a purchaser,
the Company and the Bank will forthwith amend or supplement the Prospectus (in
form and substance satisfactory to counsel for the Agent) so
14
that, as so amended or supplemented, the Prospectus will not include an untrue
statement of a material fact or omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances existing at
the time it is delivered to a purchaser, not misleading, and the Company and the
Bank will furnish to the Agent a reasonable number of copies of such amendment
or supplement. For the purpose of this subsection, the Company and the Bank will
each furnish such information with respect to itself as the Agent may from time
to time reasonably request.
(f) The Company and the Bank will take all necessary action, in cooperation
with the Agent, to qualify the Securities for offering and sale under the
applicable securities laws of such states of the United States and other
jurisdictions as the Conversion Regulations may require and as the Agent and the
Company have agreed; provided, however, that the Company and the Bank shall not
be obligated to file any general consent to service of process or to qualify as
a foreign corporation in any jurisdiction in which it is not so qualified.
(g) The Company authorizes Sandler O'Neill and any Selected Dealers to act
as agent of the Company in distributing the Prospectus to persons entitled to
receive subscription rights and other persons to be offered Securities having
record addresses in the states or jurisdictions set forth in a survey of the
securities or "blue sky" laws of the various jurisdictions in which the
Offerings will be made (the "Blue Sky Survey").
(h) The Company will make generally available to its security holders as
soon as practicable, but not later than 60 days after the close of the period
covered thereby, an earnings statement (in form complying with the provisions of
Rule 158 of the 1933 Act Regulations) covering a twelve month period beginning
not later than the first day of the Company's fiscal quarter next following the
"effective date" (as defined in said Rule 158) of the Registration Statement.
(i) During the period ending on the third anniversary of the expiration of
the fiscal year during which the closing of the transactions contemplated hereby
occurs, the Company will furnish to its stockholders as soon as practicable
after the end of each such fiscal year an annual report (including consolidated
statements of financial condition and consolidated statements of income,
stockholders' equity and cash flows, certified by independent public
accountants) and, as soon as practicable after the end of each of the first
three quarters of each fiscal year (beginning with the fiscal quarter ending
after the effective date of the Registration Statement), consolidated summary
financial information of the Company for such quarter in reasonable detail. In
addition, such annual report and quarterly consolidated summary financial
information shall be made public through the issuance of appropriate press
releases at the same time or prior to the time of the furnishing thereof to
stockholders of the Company.
(j) During the period ending on the third anniversary of the expiration of
the fiscal year during which the closing of the transactions contemplated hereby
occurs, the Company will furnish to the Agent (i) as soon as available, a copy
of each report or other
15
document of the Company furnished generally to stockholders of the Company or
furnished to or filed with the Commission under the 1934 Act or any national
securities exchange or system on which any class of securities of the Company is
listed, and (ii) from time to time, such other information concerning the
Company as the Agent may reasonably request.
(k) The Company and the Bank will conduct the Conversion in all material
respects in accordance with the Plan, the Conversion Regulations and all other
applicable regulations, decisions and orders, including all applicable terms,
requirements and conditions precedent to the Conversion imposed upon the Company
or the Bank by the OTS.
(l) The Company and the Bank will use the net proceeds received by them
from the sale of the Securities in the manner specified in the Prospectus under
"Use of Proceeds."
(m) The Company will file with the Commission such reports on Form SR as
may be required pursuant to Rule 463 of the 1933 Act Regulations.
(n) The Company will file a registration statement for the Common Stock
under Section 12(g) of the 1934 Act prior to completion of the Offerings and
will request that such registration statement be effective upon completion of
the Conversion. The Company will maintain the effectiveness of such registration
for not less than three years. The Company will file with the Nasdaq Stock
Market all documents and notices required by the Nasdaq Stock Market of
companies that have issued securities that are traded in the over-the-counter
market and quotations for which are reported by the Nasdaq National Market.
(o) The Company and the Bank will take such actions and furnish such
information as are reasonably requested by the Agent in order for the Agent to
ensure compliance with the NASD's "Interpretation Relating to Free-Riding and
Withholding."
(p) Other than in connection with any employee benefit plan or arrangement
described in the Prospectus, the Company will not, without the prior written
consent of the Agent, sell or issue, contract to sell or otherwise dispose of,
any shares of Common Stock other than the Securities for a period of 180 days
following the Closing Time.
(q) During the period beginning on the date hereof and ending on the later
of the third anniversary of the Closing Time or the date on which the Agent
receives full payment in satisfaction of any claim for indemnification or
contribution to which it may be entitled pursuant to Sections 6 or 7 hereof,
respectively, neither the Company nor the Bank shall, without the prior written
consent of the Agent, which consent shall not be unreasonably withheld, take or
permit to be taken any action that could result in the Bank Common Stock
becoming subject to any security interest, mortgage, pledge, lien or
encumbrance; provided, however, that this covenant shall be null and void if the
Board of Governors of the Federal Reserve System, by regulation, policy
statement or interpretive release, or by written order or written advice
addressed to the Bank or the Agent specifically addressing the provisions
16
of Section 6(a) hereof, permits indemnification of the Agent by the Bank as
contemplated by such provisions.
SECTION 4. Payment of Expenses.
The Company and the Bank jointly and severally agree to pay all expenses
incident to the performance of their obligations under this Agreement, including
but not limited to (i) the cost of obtaining all securities and bank regulatory
approvals, (ii) the printing and filing of the Registration Statement and the
Conversion Application as originally filed and of each amendment thereto,
(iii) the preparation, issuance and delivery of the certificates for the
Securities to the purchasers in the Offerings, (iv) the fees and disbursements
of the Company's and the Bank s counsel, accountants, conversion agent,
appraiser and other advisors, (v) the qualification of the Securities under
securities laws in accordance with the provisions of Section 3(f) hereof,
including filing fees and the fees and disbursements of counsel in connection
therewith and in connection with the preparation of the Blue Sky Survey, (vi)
the printing and delivery to the Agent of copies of the Registration Statement
as originally filed and of each amendment thereto and the printing and delivery
of the Prospectus and any amendments or supplements thereto to the purchasers in
the Offerings and the Agent, (vii) the printing and delivery to the Agent of
copies of a Blue Sky Survey, and (viii) the fees and expenses incurred in
connection with the listing of the Securities on the Nasdaq Stock Market. In the
event the Agent incurs any such fees and expenses on behalf of the Bank or the
Company, the Bank will reimburse the Agent for such fees and expenses whether or
not the Conversion is consummated; provided, however, that the Agent shall not
incur any substantial expenses on behalf of the Bank or the Company pursuant to
this Section without the prior approval of the Bank, which approval shall not be
unreasonable withheld.
The Company and the Bank jointly and severally agree to pay certain
expenses incident to the performance of the Agent's obligations under this
Agreement, including (i) the filing fees paid or incurred by the Agent in
connection with all filings with the NASD, and (ii) all reasonable out of pocket
expenses incurred by the Agent relating to the Offerings, including, without
limitation, advertising, promotional, syndication and travel expenses and fees
and expenses of the Agent's counsel, up to an aggregate of $100,000. All fees
and expenses to which the Agent are entitled to reimbursement under this
paragraph of this Section 4 shall be due and payable upon receipt by the Company
or the Bank of a written accounting therefor setting forth in reasonable detail
the expenses incurred by the Agent.
SECTION 5. Conditions of Agent's Obligations.
The Company, the Bank and the Agent agree that the issuance and the sale of
Securities and all obligations of the Agent hereunder are subject to the
accuracy of the representations and warranties of the Company and the Bank
herein contained as of the date hereof and the Closing Time, to the accuracy of
the statements of officers and directors of the Company and the Bank made
pursuant to the provisions hereof, to the performance
17
by the Company and the Bank of their obligations hereunder, and to the following
further conditions:
(a) No stop order suspending the effectiveness of the Registration
Statement shall have been issued under the 1933 Act or proceedings therefor
initiated or threatened by the Commission, no order suspending the Offerings or
authorization for final use of the Prospectus shall have been issued or
proceedings therefor initiated or threatened by the OTS and no order suspending
the sale of the Securities in any jurisdiction shall have been issued.
(b) At Closing Time, the Agent shall have received:
(1) The favorable opinion, dated as of Closing Time, of Muldoon,
Murphy & Faucette, special counsel for the Company and the Bank, in form and
substance satisfactory to counsel for the Agent, to the effect that:
(i) The Company has been duly incorporated and
is validly existing as a corporation in good standing
under the laws of the State of Delaware.
(ii) The Company has full corporate power and
authority to own, lease and operate its properties and to
conduct its business as described in the Registration
Statement and Prospectus and to enter into and perform its
obligations under this Agreement.
(iii) The Company is duly qualified as a foreign corporation
to transact business and is in good standing in the State
of New Jersey and each jurisdiction in which the failure
to so qualify would have a material adverse effect upon
the financial condition, results of operations or business
affairs of the Company.
(iv) Upon consummation of the Conversion, the authorized,
issued and outstanding capital stock of the Company will
be within the range set forth in the Prospectus under
"Capitalization" and, except for shares issued upon
incorporation of the Company, no shares of Common Stock
have been or will be issued and outstanding prior to the
Closing Time.
(v) The Securities have been duly and validly authorized for
issuance and sale and, when issued and delivered by the
Company pursuant to the Plan against payment of the
consideration calculated as set forth in the Plan, will be
duly and validly issued and fully paid and non-assessable.
The
18
certificates representing the shares of Common Stock
conform to the requirements of Delaware law.
(vi) The issuance of the Securities is not subject to
preemptive or other similar rights arising by operation of
law or, to their knowledge, otherwise.
(vii) The Bank has been at all times since the date hereof and
prior to the Closing Time organized and validly existing
under the laws of the United States of America as a
federally chartered savings bank of mutual form, and, at
Closing Time, has become duly organized and validly
existing under the laws of the United States of America as
a federally chartered savings bank in stock form, in both
instances with full corporate power and authority to own,
lease and operate its properties and to conduct its
business as described in the Registration Statement and
the Prospectus; and the Bank is duly qualified as a
foreign corporation in each jurisdiction in which the
failure to so qualify would have a material adverse effect
upon the financial condition, results of operations or
business affairs of the Bank.
(viii) The Bank is a member of the Federal Home Loan Bank of New
York and the deposit accounts of the Bank are insured by
the FDIC up to the applicable limits.
(ix) The only subsidiary of the Bank has been duly
incorporated and is validly existing as a corporation in
good standing under the laws of the jurisdiction of its
incorporation, has full corporate power and authority to
own, lease and operate its properties and to conduct its
business as described in the Registration Statement and is
duly qualified as a foreign corporation to transact
business and is in good standing in each jurisdiction in
which the failure to so qualify would have a material
adverse effect upon the financial condition, results of
operations or business of the Bank and its subsidiary,
taken as a whole; the activities of such subsidiary are
permitted to subsidiary of a savings association holding
company and of a federally chartered savings bank by the
rules, regulations, resolutions and practices of the OTS;
all of the issued and outstanding capital stock of such
subsidiary has been duly authorized and validly issued, is
fully paid and non-assessable and is owned by the Bank,
directly or through subsidiary, free and clear of any
security interest, mortgage,
19
pledge, lien, encumbrance, claim or equity; the Bank has
no indirect subsidiaries.
(x) Upon consummation of the Conversion, all of the issued and
outstanding capital stock of the Bank will be duly
authorized and validly issued and fully paid and
nonassessable, and all such capital stock will be owned
beneficially and of record by the Company free and clear
of any security interest, mortgage, pledge, lien,
encumbrance, claim or equity.
(xi) The OTS has duly approved the Holding Company Application
and the Conversion Application and no action is pending,
or to such counsel s knowledge, threatened respecting the
Holding Company Application or the Conversion Application
or the acquisition by the Company of all of the Bank's
issued and outstanding capital stock; the Holding Company
Application and the Conversion Application comply as to
form with the applicable requirements of the OTS and
include all documents required to be filed as exhibits
thereto; and the Company is duly authorized to become a
savings association holding company and is duly authorized
to own all of the issued and outstanding capital stock of
the Bank to be issued pursuant to the Plan.
(xii) 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 each of the Company and the Bank, and this
Agreement constitutes the legal, valid and binding
agreement of each of the Company and the Bank, enforceable
in accordance with its terms, except as rights to
indemnity and contribution hereunder may be limited under
applicable law (it being understood that such counsel may
avail itself of customary exceptions concerning the effect
of bankruptcy, insolvency or similar laws and the
availability of equitable remedies); the execution and
delivery of this Agreement, the incurrence of the
obligations herein set forth and the consummation of the
transactions contemplated herein will not result in any
violation of the provisions of the certificate of
incorporation, articles of incorporation or charter, as
the case may be, or bylaws of the Company, the Bank or its
subsidiary; and, to the best of such counsel s knowledge,
the execution and delivery of this Agreement, the
incurrence of
20
the obligations herein set forth and the consummation of
the transactions contemplated herein will not conflict
with or constitute a breach of, or default under, and no
default exists, and no event has occurred which, with
notice or lapse of time or both, would constitute a
default under, or result in the creation or imposition of
any lien, charge or encumbrance upon any property or
assets of the Company, the Bank or its subsidiary pursuant
to any contract, indenture, mortgage, loan agreement,
note, lease or other instrument to which the Company, the
Bank or its subsidiary is a party or by which any of them
may be bound, or to which any of the property or assets of
the Company, the Bank or its subsidiary is subject that,
individually or in the aggregate, would have a material
adverse effect on the financial condition, results of
operations or business affairs of the Company, the Bank
and its subsidiary considered as one enterprise.
(xiii) The Prospectus has been duly authorized by the OTS for
final use pursuant to the Conversion Regulations and no
action is pending, or to such counsel's knowledge, is
threatened, by the OTS to revoke such authorization.
(xiv) The Registration Statement is effective under the 1933
Act and no stop order suspending the effectiveness of the
Registration Statement has been issued under the 1933 Act
or proceedings therefor initiated or to such counsel's
knowledge and information threatened by the Commission.
(xv) No further approval, authorization, consent or other order
of any public board or body is required in connection with
the execution and delivery of this Agreement, the issuance
of the Securities and the consummation of the Conversion,
except as may be required under the securities or Blue Sky
laws of various jurisdictions as to which no opinion need
be rendered.
(xvi) At the time the Registration Statement became effective,
the Registration Statement (other than the financial
statements and statistical data included therein, as to
which no opinion need be rendered) complied as to form in
all material respects with the requirements of the 1933
Act and the 1933 Act Regulations and the Conversion
Regulations.
21
(xvii) The Common Stock conforms to the description thereof
contained in the Prospectus, and the form of certificate
used to evidence the Common Stock is in due and proper
form and complies with all applicable statutory
requirements.
(xviii) To counsel's knowledge, there are no legal or governmental
proceedings pending or threatened against or affecting the
Company, the Bank or its subsidiary which are required to
be disclosed in the Registration Statement and Prospectus,
other than those disclosed therein, and all pending legal
or governmental proceedings to which the Company, the Bank
or any of its subsidiary is a party or to which any of
their property is subject which are not described in the
Registration Statement, including ordinary routine
litigation incidental to the business, are, considered in
the aggregate, not material.
(xix) The information in the Prospectus under "Dividend
Policy", "Federal and State Taxation", "Regulation", "The
Conversion-Tax Aspects", "Restrictions on Acquisitions of
the Holding Company and the Bank", "Description of Capital
Stock of the Company" and "Description of Capital Stock of
the Bank", to the extent that it constitutes matters of
law, summaries of legal matters, documents or proceedings,
or legal conclusions, has been reviewed by them and is
correct in all material respects.
(xx) To counsel's knowledge, there are no contracts,
indentures, mortgages, loan agreements, notes, leases or
other instruments required to be described or referred to
in the Registration Statement or to be filed as exhibits
thereto other than those described or referred to therein
or filed as exhibits thereto, the descriptions thereof or
references thereto are correct and no default exists, and
no event has occurred which, with notice or lapse of time
or both, would constitute a default in the due performance
of any material obligation, agreement, covenant or
condition contained in any contract, indenture, mortgage,
loan agreement, note, lease or other instrument so
described, referred to or filed.
(xxi) The Plan has been duly authorized by the Board of
Directors of the Company and the Board of Directors of the
Bank and, to such counsel's knowledge, the OTS's approval
of the Plan remains in full force and effect; the Bank's
charter has been amended, effective upon consummation of
the Conversion and the filing of such
22
amended charter with the OTS, to authorize the issuance of
permanent capital stock; to such counsel's knowledge, the
Company and the Bank have conducted the Conversion in all
material respects in accordance with applicable
requirements of the Conversion Regulations, the Plan and
all other applicable regulations, decisions and orders
thereunder, including all material applicable terms,
conditions, requirements and conditions precedent to the
Conversion imposed upon the Company or the Bank by the OTS
and no order has been issued by the OTS to suspend the
Offerings and no action for such purpose has been
instituted or, to such counsel's knowledge, threatened by
the OTS; and, to such counsel's knowledge, no person has
sought to obtain review of the final action of the OTS in
approving the Plan.
(xxii) To such counsel's knowledge, the Company and the Bank and
its subsidiary have obtained all licenses, permits and
other governmental authorizations currently required for
the conduct of their respective businesses as described in
the Registration Statement and Prospectus, and all such
licenses, permits and other governmental authorizations
are in full force and effect, and the Company and the Bank
and its subsidiary are in all material respects complying
therewith.
(xxiii) Neither the Company, nor the Bank nor its subsidiary is in
violation of its certificate of incorporation, articles of
incorporation or charter, as the case may be (and the Bank
will not be in violation of its charter in stock form upon
consummation of the Conversion) or, to such counsel's
knowledge, in default (nor has any event occurred which,
with notice or lapse of time or both, would constitute a
default) in the performance or observance of any material
obligation, agreement, covenant or condition contained in
any contract, indenture, mortgage, loan agreement, note,
lease or other instrument to which the Company, the Bank
or any of its subsidiary is a party or by which the
Company, the Bank or any of its subsidiary or any of their
property may be bound.
(xxiv) The Company is not required to be registered as an
investment company under the Investment Company Act of
1940.
(2) The favorable opinion, dated as of Closing Time, of Elias, Matz,
Tiernan & Herrick L.L.P., counsel for the Agent, with respect to the matters set
forth in
23
Section 5(b)(1)(i), (iv), (v), (vi) (solely as to preemptive rights arising by
operation of law), (xii), (xvi) and (xvii) and such other matters as the Agent
may reasonably require.
(3) In giving their opinions required by subsections (b)(l) and
(b)(2), respectively, of this Section, Muldoon, Murphy & Faucette and Elias,
Matz, Tiernan & Herrick L.L.P. shall each additionally state that nothing has
come to their attention that would lead them to believe that the Registration
Statement (except for financial statements, the notes thereto and other
financial, statistical data and appraisal included therein, as to which counsel
need make no statement), at the time it became effective, contained an untrue
statement of a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not misleading or
that the Prospectus (except for financial statements and schedules and other
financial or statistical data included therein, as to which counsel need make no
statement), at the time the Registration Statement became effective or at
Closing Time, included an untrue statement of a material fact or omitted to
state a material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading. In giving
their opinions, Muldoon, Murphy & Faucette and Elias, Matz, Tiernan & Herrick
L.L.P. may rely as to matters of fact on certificates of officers and directors
of the Company and the Bank and certificates of public officials, and as to
certain matters of Delaware law upon the opinion of Morris, Nichols, Arsht &
Tunnell, which opinion shall be in form and substance satisfactory to counsel
for the Agent, and Elias, Matz, Tiernan & Herrick L.L.P. may also rely on the
opinions of Muldoon, Murphy & Faucette and Morris, Nichols, Arsht & Tunnell
except as to paragraph (xvi) hereof. The opinions of Muldoon, Murphy & Faucette
and Elias, Matz, Tiernan & Herrick L.L.P. shall be governed by the provisions of
the Legal Opinion Accord ("Accord") of the American Bar Association Section of
Business Law (1991) and the term "knowledge" as used herein shall have the
meaning set forth in the Accord for the term "Actual Knowledge" .
(c) At Closing Time, there shall not have been, since the date hereof or
since the respective dates as of which information is given in the Registration
Statement and the Prospectus, any material adverse change in the financial
condition, results of operations or business affairs of the Company, the Bank
and its subsidiary considered as one enterprise, whether or not arising in the
ordinary course of business, and the Agent shall have received a certificate of
the Chief Executive Officer of the Company and of the Bank, the President of the
Company and the Bank and the chief financial or chief accounting officer of the
Company and of the Bank, dated as of Closing Time, to the effect that (i) there
has been no such material adverse change, (ii) there shall have been no material
transaction entered into by the Company or the Bank from the latest date as of
which the financial condition of the Company or the Bank as set forth in the
Registration Statement and the Prospectus other than transactions referred to or
contemplated therein and transactions in the ordinary cause of business, (iii)
neither the Company nor the Bank shall have received from the OTS any direction
(oral or written) to make any material change in the method of conducting its
business with which it has not complied (which direction, if any, shall have
been disclosed to the Agent) or which materially and adversely would affect the
business, financial condition or results of operations of the Company or the
Bank, (iv) the representations and
24
warranties in Section 1 hereof are true and correct with the same force and
effect as though expressly made at and as of the Closing Time, (v) the Company
and the Bank have complied with all agreements and satisfied all conditions on
their part to be performed or satisfied at or prior to Closing Time, (vi) no
stop order suspending the effectiveness of the Registration Statement has been
issued and no proceedings for that purpose have been initiated or threatened by
the Commission and (vii) no order suspending the Offerings or the authorization
for final use of the Prospectus has been issued and no proceedings for that
purpose have been initiated or threatened by the OTS and no person has sought to
obtain regulatory or judicial review of the action of the OTS in approving the
Plan in accordance with the Conversion Regulations.
(d) At the time of the execution of this Agreement, the Agent shall have
received from KPMG Peat Marwick LLP a letter dated such date, in form and
substance satisfactory to the Agent, to the effect that (i) they are independent
public accountants with respect to the Company, the Bank and its subsidiary
within the meaning of the Code of Ethics of the AICPA, the 1933 Act and the 1933
Act Regulations and the Conversion Regulations; (ii) it is their opinion that
the consolidated financial statements and supporting schedules included in the
Registration Statement and covered by their opinion therein comply as to form in
all material respects with the applicable accounting requirements of the 1933
Act and the 1933 Act Regulations; (iii) based upon limited procedures set forth
in detail in such letter, nothing has come to their attention which causes them
to believe that (A) the unaudited financial statements and supporting schedules
of the Bank and its subsidiary included in the Registration Statement do not
comply as to form in all material respects with the applicable accounting
requirements of the 1933 Act and the 1933 Act Regulations or are not presented
in conformity with generally accepted accounting principles applied on a basis
substantially consistent with that of the audited financial statements included
in the Registration Statement and the Prospectus, (B) the unaudited amounts of
net interest income and net income set forth under "Selected Consolidated
Financial and Other Data of the Bank" in the Prospectus were not determined on a
basis substantially consistent with that used in determining the corresponding
amounts in the audited financial statements included in the Registration
Statement, (C) at a specified date not more than five days prior to the date of
this Agreement, there has been any increase in the consolidated long-term or
short-term debt of the Bank and its subsidiary or any decrease in consolidated
total assets, the allowance for loan losses, total deposits or net worth of the
Bank and its subsidiary, in each case as compared with the amounts shown in the
September 30, 1995 balance sheet included in the Registration Statement or, (D)
during the period from September 30, 1995 to the date of the most recent
financial statements available prior to the date of this Agreement, there were
any decreases, as compared with the corresponding period in the preceding year,
in total interest income, net interest income, net interest income after
provision for loan losses, income before income tax expense or net income of the
Bank and its subsidiary, except in all instances for increases or decreases
which the Registration Statement and the Prospectus disclose have occurred or
may occur; and (iv) in addition to the examination referred to in their opinion
and the limited procedures referred to in clause (iii) above, they have carried
out certain specified procedures, not constituting an audit, with respect to
certain amounts, percentages and financial information
25
which are included in the Registration Statement and Prospectus and which are
specified by the Agent, and have found such amounts, percentages and financial
information to be in agreement with the relevant accounting, financial and other
records of the Company, the Bank and its subsidiary identified in such letter.
(e) At Closing Time, the Agent shall have received from KPMG Peat Marwick
LLP a letter, dated as of Closing Time, to the effect that they reaffirm the
statements made in the letter furnished pursuant to subsection (d) of this
Section, except that the specified date referred to shall be a date not more
than five days prior to Closing Time.
(f) At Closing Time, the Securities shall have been approved for listing on
the Nasdaq Stock Market upon notice of issuance.
(g) At Closing Time, the Agent shall have received a letter from RP
Financial, Inc., dated as of the Closing Time, confirming its appraisal.
(h) At Closing Time, counsel for the Agent shall have been furnished with
such documents and opinions as they may require for the purpose of enabling them
to pass upon the issuance and sale of the Securities as herein contemplated and
related proceedings, or in order to evidence the accuracy of any of the
representations or warranties, or the fulfillment of any of the conditions,
herein contained; and all proceedings taken by the Company in connection with
the issuance and sale of the Securities as herein contemplated shall be
satisfactory in form and substance to the Agent and counsel for the Agent.
(i) At any time prior to Closing Time, (i) there shall not have occurred
any material adverse change in the financial markets in the United States or
elsewhere or any outbreak of hostilities or escalation thereof or other calamity
or crisis the effect of which it, in the judgment of the Agent, are so material
and adverse as to make it impracticable to market the Securities or to enforce
contracts, including subscriptions or orders, for the sale of the Securities,
and (ii) trading generally on either the American Stock Exchange or the New York
Stock Exchange shall not have been suspended, and minimum or maximum prices for
trading shall not have been fixed, or maximum ranges for prices for securities
have been required, by either of said Exchanges or by order of the Commission or
any other governmental authority, and a banking moratorium shall not have been
declared by either Federal or New York authorities.
SECTION 6. Indemnification.
(a) The Company and the Bank, jointly and severally, agree to indemnify and
hold harmless the Agent, each person, if any, who controls the Agent, within the
meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act, and its
respective partners, directors, officers and employees as follows:
(i) from and against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, related to or arising out of the Conversion or
any action taken by
26
the Agent where acting as agent of the Company or the Bank or otherwise as
described in Section 2 hereof; provided, however, that this indemnity agreement
shall not apply to any loss, liability, claim, damage or expense found in a
final judgment by a court of competent jurisdiction to have resulted primarily
from the bad faith, willful misconduct or gross negligence of the Agent seeking
indemnification hereunder.
(ii) from and against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, based upon or arising out of any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement (or any amendment thereto), or the omission or alleged
omission therefrom of a material fact required to be stated therein or necessary
to make the statements therein not misleading or arising out of any untrue
statement or alleged untrue statement of a material fact contained in the
Prospectus (or any amendment or supplement thereto) or the omission or alleged
omission therefrom of a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading;
(iii) from and against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim whatsoever
described in clauses (i) or (ii) above, if such settlement is effected with the
written consent of the Company or the Bank, which consent shall not be
unreasonably withheld; and
(iv) from and against any and all expense whatsoever, as incurred
(including, subject to Section 6(c) hereof, the fees and disbursements of
counsel chosen by the Agent), reasonably incurred in investigating, preparing
for or defending against any litigation, or any investigation, proceeding or
inquiry by any governmental agency or body, commenced or threatened, or any
claim whatsoever described in clauses (i) or (ii) above, to the extent that any
such expense is not paid under (i), (ii) or (iii) above; provided, however, that
this indemnity agreement shall not apply to any loss, liability, claim, damage
or expense to the extent arising out of any untrue statement or alleged untrue
statement of a material fact contained in the Prospectus (or any amendment or
supplement thereto) or omission or alleged omission therefrom of a material fact
necessary in order to make the statements therein, in light of the circumstance
under which they were made, not misleading which was made in reliance upon and
in conformity with written information relating to the Agent furnished to the
Company or the Bank by the Agent expressly for use in the Prospectus (or any
amendment or supplement thereto), which information the Company and the Bank
acknowledge is included only in the sections captioned "Market for the Common
Stock," "The Conversion - Marketing and Underwriting Arrangements" and
"Syndicated Community Offering" of the Prospectus ("Agent's Information").
Notwithstanding the foregoing, the indemnification provided for in this
paragraph (a) shall not apply to the Bank in the event that it is found in a
final judgement by a court of competent jurisdiction to constitute an
impermissible covered transaction under Section 23A of the Federal Reserve Act.
27
(b) The Agent agree to indemnify and hold harmless the Company, the Bank,
their directors and trustees, each of their officers who signed the Registration
Statement, and each person, if any, who controls the Company within the meaning
of Section 15 of the 1933 Act or Section 20 of the 1934 Act against any and all
loss, liability, claim, damage and expense described in the indemnity contained
in subsection (a) of this Section, as incurred, but only with respect to untrue
statements or omissions, or alleged untrue statements or omissions, of a
material fact made in the Prospectus (or any amendment or supplement thereto) in
reliance upon and in conformity with the Agent's Information.
(c) Each indemnified party shall give notice as promptly as reasonably
practicable to each indemnifying party of any action commenced against it in
respect of which indemnity may be sought hereunder, but failure to so notify an
indemnifying party shall not relieve such indemnifying party from any liability
which it may have otherwise than on account of this indemnity agreement. An
indemnifying party may participate at its own expense in the defense of any such
action. In no event shall the indemnifying parties be liable for fees and
expenses of more than one counsel (in addition to no more than one local counsel
in each separate jurisdiction in which any action or proceeding is commenced)
separate from their own counsel for all indemnified parties in connection with
any one action or separate but similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances.
(d) The Company and the Bank also agree that the Agent shall not have any
liability (whether direct or indirect, in contract or tort or otherwise) to the
Bank, the Company, its security holders or the Bank's or the Company's creditors
relating to or arising out of the engagement of the Agent pursuant to, or the
performance by the Agent of the services contemplated by, this Agreement, except
to the extent that any loss, claim, damage or liability is found in a final
judgment by a court of competent jurisdiction to have resulted primarily from
the Agent's bad faith, willful misconduct or gross negligence.
(e) In addition to, and without limiting, the provisions of Section
(6)(a)(iv) hereof, in the event that any Agent, any person, if any, who controls
the Agent within the meaning of Section 15 of the 1933 Act or Section 20 of the
1934 Act or any of its partners, directors, officers and employees is requested
or required to appear as a witness or otherwise gives testimony in any action,
proceeding, investigation or inquiry brought by or on behalf of or against the
Company, the Bank, the Agent or any of their respective affiliates or any
participant in the transactions contemplated hereby in which the Agent or such
person or agent is not named as a defendant, the Company and the Bank jointly
and severally agree to reimburse the Agent for all reasonable and necessary out-
of-pocket expenses incurred by it in connection with preparing or appearing as a
witness or otherwise giving testimony and to compensate the Agent in an amount
to be mutually agreed upon.
SECTION 7. Contribution.
In order to provide for just and equitable contribution in circumstances in
which the indemnity agreement provided for in Section 6 hereof is for any reason
held to be
28
unenforceable by the indemnified parties although applicable in accordance with
its terms, the Company, the Bank and the Agent shall contribute to the aggregate
losses, liabilities, claims, damages and expenses of the nature contemplated by
said indemnity agreement incurred by the Company or the Bank and the Agent, as
incurred, in such proportions (i) that the Agent is responsible for that portion
represented by the percentage that the maximum aggregate marketing fees
appearing on the cover page of the Prospectus bears to the maximum aggregate
gross proceeds appearing thereon and the Company and the Bank are jointly and
severally responsible for the balance or (ii) if, but only if, the allocation
provided for in clause (i) is for any reason held unenforceable, in such
proportion as is appropriate to reflect not only the relative benefits to the
Company and the Bank on the one hand and the Agent on the other, as reflected in
clause (i), but also the relative fault of the Company and the Bank on the one
hand and the Agent on the other, as well as any other relevant equitable
considerations; provided, however, that no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the 1933 Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section, each person, if any, who
controls the Agent within the meaning of Section 15 of the 1933 Act or Section
20 of the 1934 Act shall have the same rights to contribution as the Agent, and
each director of the Company, each trustee of the Bank, each officer of the
Company who signed the Registration Statement, and each person, if any, who
controls the Company or the Bank within the meaning of Section 15 of the 1933
Act or Section 20 of the 1934 Act shall have the same rights to contribution as
the Company and the Bank. Notwithstanding anything to the contrary set forth
herein, to the extent permitted by applicable law, in no event shall the Agent
be required to contribute an aggregate amount in excess of the aggregate
marketing fees to which the Agent is entitled and actually paid pursuant to this
Agreement.
SECTION 8. Representations, Warranties and Agreements to Survive Delivery.
All representations, warranties and agreements contained in this Agreement,
or contained in certificates of officers of the Company or the Bank submitted
pursuant hereto, shall remain operative and in full force and effect, regardless
of any investigation made by or on behalf of any Agent or controlling person, or
by or on behalf of the Company, and shall survive delivery of the Securities.
SECTION 9. Termination of Agreement.
(a) The Agent may terminate this Agreement, by notice to the Company, at
any time at or prior to Closing Time (i) if there has been, since the date of
this Agreement or since the respective dates as of which information is given in
the Registration Statement, any material adverse change in the financial
condition, results of operations or business affairs of the Company or the Bank,
or the Company, the Bank and its subsidiary considered as one enterprise,
whether or not arising in the ordinary course of business, or (ii) if there has
occurred any material adverse change in the financial markets in the United
States or elsewhere or any outbreak of hostilities or escalation thereof or
other calamity or crisis the effect of which it, in the judgment of the Agent,
are so material and adverse as to make it
29
impracticable to market the Securities or to enforce contracts, including
subscriptions or orders, for the sale of the Securities, (iii) or if trading
generally on either the American Stock Exchange or the New York Stock Exchange
has been suspended, or minimum or maximum prices for trading have been fixed, or
maximum ranges for prices for securities have been required, by either of said
Exchanges or by order of the Commission or any other governmental authority, or
if a banking moratorium has been declared by either Federal or New York
authorities, (iv) if any condition specified in Section 5 shall not have been
fulfilled when and as required to be fulfilled; (v) if there shall have been
such material adverse change in the condition or prospects of the Company or the
Bank or the prospective market for the Company s securities as in the Agent s
good faith opinion would make it inadvisable to proceed with the offering, sale
or delivery of the Securities; (vi) if in the Agent s good faith opinion, the
price for the Securities established by the Company is not reasonable or
equitable under then prevailing market condition; or (vii) if the Conversion is
not consummated on or prior to May 1, 1996.
(b) If this Agreement is terminated pursuant to this Section, such
termination shall be without liability of any party to any other party except as
provided in Section 4 hereof relating to the reimbursement of expenses and
except that the provisions of Sections 6 and 7 hereof shall survive any
termination of this Agreement.
SECTION 10. Notices.
All notices and other communications hereunder shall be in writing and
shall be deemed to have been duly given if mailed or transmitted by any standard
form of telecommunication. Notices to the Agent shall be directed to the Agent
at Two World Trade Center, 104th Floor, New York, New York 10048, attention of
Catherine Lawton, Vice President, with a copy to Raymond A. Tiernan, Esq.,
Elias, Matz, Tiernan & Herrick L.L.P., 734 15th Street N.W., Washington, D.C.
20005; notices to the Company and the Bank shall be directed to either of them
at Ocean Federal Savings Bank, 74 Brick Boulevard, Brick, New Jersey 08723,
attention of John R. Garbarino, President and Chief Executive Officer, with a
copy to Joseph G. Passaic Jr., Esq., Muldoon, Murphy & Faucette, 5101 Wisconsin
Avenue, N.W., Washington, D.C. 20016.
SECTION 11. Parties.
This Agreement shall inure to the benefit of and be binding upon the Agent,
the Company and the Bank and their respective successors. Nothing expressed or
mentioned in this Agreement is intended or shall be construed to give any
person, firm or corporation, other than the Agent, the Company and the Bank and
their respective successors and the controlling persons and officers and
directors referred to in Sections 6 and 7 and their heirs and legal
representatives, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision herein or therein contained. This
Agreement and all conditions and provisions hereof and thereof are intended to
be for the sole and exclusive benefit of the Agent, the Company and the Bank and
their respective successors, and said controlling persons and officers and
directors and their heirs and legal representatives, and for the benefit of no
other person, firm or corporation.
30
SECTION 12. Entire Agreement; Amendment.
This Agreement represents the entire understanding of the parties hereto
with reference to the transactions contemplated hereby and supersedes any and
all other oral or written agreements heretofore made. No waiver, amendment or
other modification of this Agreement shall be effective unless in writing and
signed by the parties hereto.
SECTION 13. Governing Law and Time.
This Agreement shall be governed by and construed in accordance with the
laws of the State of New York applicable to agreements made and to be performed
in said State without regard to the conflicts of laws provisions thereof.
Unless otherwise noted, specified times of day refer to Eastern time.
SECTION 14. Severability.
Any term or provision of this which is invalid or unenforceable in any
jurisdiction shall, as to that jurisdiction, be ineffective to the extent of
such invalidity or unenforceability without rendering invalid or unenforceable
the remaining terms and provisions of this Agreement or affecting the validity
or enforceability of any of the terms or provisions of this Agreement in any
other jurisdiction. If any provision of this Agreement is so broad as to be
unenforceable, the provision shall be interpreted to be only so broad as is
enforceable.
SECTION 15. Headings.
Sections headings are not to be considered part of this Agreement, are for
convenience and reference only, and are not to be deemed to be full or accurate
descriptions of the contents of any paragraph or subparagraph.
31
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this instrument, along with all counterparts, will become a binding agreement
between the Agent, the Company and the Bank in accordance with its terms.
Very truly yours,
OCEAN FINANCIAL CORP.
By:_________________________________
John R. Garbarino
President and Chief Executive Officer
OCEAN FEDERAL SAVING BANK
By:_________________________________
John R. Garbarino
President and Chief Executive Officer
CONFIRMED AND ACCEPTED,
as of the date first above written:
SANDLER O NEILL & PARTNERS, L.P.
By: Sandler O Neill & Partners Corp.,
the sole general partner
By:_____________________________
Catherine Lawton
Vice President
32