7,762,500 Shares
(subject to increase up to 8,926,875 shares
in the event of an increase in the pro forma market
value of the Common Stock)
Roma Financial Corporation
(a Federally-chartered stock holding company)
Common Stock
(par value $0.10 per share)
AGENCY AGREEMENT
May ___, ▇▇▇▇
▇▇▇▇▇▇▇ ▇'▇▇▇▇▇ + PARTNERS, L.P.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Roma Financial Corporation, a Federally-chartered stock holding company
(the "Company"), Roma Financial Corporation, MHC, a Federally-chartered mutual
holding company (the "MHC"), and Roma Bank, a Federally-chartered savings bank
(the "Bank"), hereby confirm their agreement with Sandler ▇'▇▇▇▇▇ + Partners,
L.P. ("Sandler ▇'▇▇▇▇▇" or the "Agent") with respect to the offer and sale by
the Company of up to 7,762,500 shares (subject to increase up to 8,926,875
shares in the event of an increase in the pro forma market value of the
Company's common stock) of the Company's common stock, par value $0.10 per share
(the "Common Stock"). The shares of Common Stock to be sold by the Company in
the Offerings (as defined below) are hereinafter called the "Securities." In
addition, as described herein, the Company expects to contribute up to 258,750
shares (subject to increase up to 297,563 shares in the event of an increase in
the pro forma market value of the Company's common stock) of Common Stock to
Roma Bank Community Foundation, a charitable foundation (the "Foundation"), such
shares hereinafter being referred to as the "Foundation Shares."
The Securities are being offered for sale and the Foundation Shares are
being contributed in accordance with the Stock Issuance Plan (such plan as
amended to date, the "Plan") adopted by the Boards of Directors of the Company,
the MHC and the Bank, which provides for a stock offering of up to 49.9% of the
Common Stock of the Company.
Pursuant to the Plan, the Company will offer to certain depositors of the
Bank and to the Bank's tax qualified employee benefit plans, including the
Bank's employee stock ownership plan
1
(the "ESOP") (collectively, 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 in a
community offering (the "Community Offering"), with preference given first to
natural persons residing in ▇▇▇▇▇▇ and Burlington Counties, New Jersey, and
second to other natural persons residing in New Jersey to whom the Company
delivers a Prospectus (as hereinafter defined). The Community Offering, which
together with the Subscription Offering, as each may be extended or reopened
from time to time, are herein referred to as the "Subscription and Community
Offering," may be commenced concurrently with, during or after, the Subscription
Offering. It is currently anticipated by the Bank and the Company that any
Securities not subscribed for in the Subscription and Community Offering will be
offered, subject to Section 2 hereof, in a syndicated community offering (the
"Syndicated Community Offering"). The Subscription and Community Offering and
the Syndicated Community Offering are hereinafter referred to collectively as
the "Offerings."
In connection with the Offerings and pursuant to the terms of the Plan as
described in the Prospectus, the Bank intends to establish the Foundation.
Immediately following the consummation of the Offerings, subject to compliance
with certain conditions as may be imposed by regulatory authorities, the Company
will contribute $200,000 in cash and newly issued shares of Common Stock in an
amount equal to 1.00% of the number of shares that will be outstanding following
the shares sold in the Offerings and issued to the MHC.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-1 (No. 333-132415), including a
related prospectus, for the registration of the Securities and the Foundation
Shares under the Securities Act of 1933, as amended (the "Securities 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
prospectuses 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 a part thereof pursuant to the rules and
regulations of the Commission under the Securities Act, as from time to time
amended or supplemented pursuant to the Securities Act or otherwise (the
"Securities 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 and
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 Securities 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 Offerings. Such Prospectus contains information with respect to the Bank,
the Company, the MHC and the Common Stock.
2
SECTION 1. REPRESENTATIONS AND WARRANTIES.
(a) The Company, the Bank and the MHC jointly and severally represent and
warrant to the Agent as of the date hereof as follows:
(i) The Registration Statement has been declared effective by the
Commission, no stop order has been issued with respect thereto and no
proceedings therefor have been initiated or, to the knowledge of the
Company, the MHC and the Bank, threatened by the Commission. At the time
the Registration Statement became effective and at the Closing Time
referred to in Section 2 hereof, the Registration Statement complied and
will comply in all material respects with the requirements of the
Securities Act and the Securities 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, the MHC and the Bank acknowledge appears
only in the sixth paragraph of the section "The Offering - Plan of
Distribution/Marketing Arrangements" of the Prospectus).
(ii) Pursuant to the rules and regulations of the Office of Thrift
Supervision (the "OTS"), as from time to time amended or supplemented (the
"OTS Regulations"), the Company has filed with the OTS an Application for
Approval of Minority Stock Issuance by a Savings Association Subsidiary of
a Mutual Holding Company on Form MHC-2, which includes a related prospectus
and the Plan, 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 "Stock Issuance
Application"). The Plan has been duly adopted by the Boards of Directors of
the Company, the Bank and the MHC and such adoption has not since been
rescinded or revoked. The Stock Issuance Application has been approved by
the OTS. The OTS has declared the Prospectus effective and such
effectiveness remains in full force and effect and no order has been issued
by the OTS suspending or revoking such effectiveness and no proceedings
therefor have been initiated or, to the knowledge of the Company, the MHC
or the Bank, threatened by the OTS. At the date of such approval and
effectiveness and at the Closing Time referred to in Section 2, the Plan
complied and will comply in all material respects with the applicable
provisions of the OTS Regulations. No approval of any other regulatory or
supervisory or other public authority is required in connection with the
implementation of the Plan that has not been obtained and a copy of which
has been delivered to the Agent.
3
(iii) The Company, the MHC and the Bank have filed the Prospectus and
any supplemental sales literature with the Commission and the OTS. 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 Securities Act Regulations and, at or prior
to the time of their first use, will have received all required
authorizations of the OTS and Commission for use in final form. No approval
of any other regulatory or supervisory or other public authority is
required in connection with the distribution of the Prospectus and any
supplemental sales literature that has not been obtained and a copy of
which has been delivered to the Agent. The Company, the MHC and the Bank
have not distributed any offering material in connection with the Offering
except for the Prospectus and any supplemental sales material that has been
filed with the Registration Statement and the Stock Issuance Application.
(iv) None of the Commission, the OTS or any "Blue Sky" authority has,
by order or otherwise, prevented or suspended the use of the Prospectus or
any supplemental sales literature authorized by the Company, the MHC or the
Bank for use in connection with the Offerings, and no proceedings for such
purposes are pending or, to the knowledge of the Company, the MHC and the
Bank, threatened.
(v) At the Closing Time referred to in Section 2, (i) the Company, the
MHC and the Bank will have completed the conditions precedent to the
Offerings and the establishment of the Foundation in accordance with the
Plan, the applicable OTS Regulations and all other applicable laws,
regulations, decisions and orders, including all material terms,
conditions, requirements and provisions precedent to the Offerings imposed
upon the Company, the MHC or the Bank by the Commission, the OTS or any
other regulatory authority or Blue Sky authority, other than those which
the regulatory authority permits to be completed after the Offerings; (ii)
the Offerings and the establishment of the Foundation will have been
effected in the manner described in the Prospectus and in accordance with
the Plan, the OTS Regulations and all other applicable material laws,
regulations, decisions and orders, including in compliance with all terms,
conditions, requirements and provisions precedent to the Offerings imposed
upon the Company, the MHC and the Bank by the Commission, the OTS, the FDIC
or any other regulatory or Blue Sky authority. The Offerings and other
transactions contemplated hereby do not and will not require any material
consent, approval, authorization or permit or filing with any other
governmental agency or regulatory authority, except as disclosed in the
Prospectus.
(vi) ▇▇▇▇▇▇▇ Financial Advisors, Inc. (the "Appraiser"), which
prepared the estimated pro forma market valuation of the Common Stock as
part of the Plan, has advised the Company, the MHC and the Bank in writing
that it satisfies all requirements for an appraiser set forth in the
Conversion Regulations and any interpretations or guidelines issued by the
OTS or its staff with respect thereto.
(vii) ▇▇▇▇▇ ▇▇▇▇▇▇ Company LLP, the independent registered public
accounting firm who audited and reported on the consolidated financial
statements and supporting schedules of the Company and its subsidiaries
included in the Registration Statement, have
4
advised the Company, the MHC and the Bank in writing that they are
independent public accountants within the meaning of the Code of Ethics of
the American Institute of Certified Public Accountants (the "AICPA"), that
they are registered with the Public Company Accounting Oversight Board
("PCAOB") and such firm is, with respect to the Company, the MHC and the
Bank, independent registered public accountants as required by, and are not
in violation of the auditors independence requirements of, the Securities
Act, the Securities Act Regulations and the OTS Regulations.
(viii) The only direct subsidiary of the Company is the Bank; the only
direct and indirect subsidiaries of the Bank are Roma Capital Investment
Corporation and General Abstract & Title Agency (collectively, the
"Subsidiaries"). Except for the Subsidiaries, none of the Company, the MHC
or the Bank, directly or indirectly, controls any other corporation,
limited liability company, partnership, joint venture, association, trust
or other business organization.
(ix) The consolidated financial statements and the related schedules
and notes thereto included in the Registration Statement and the Prospectus
present fairly the financial position of the Company and its subsidiaries
at the dates indicated and the results of operations, stockholders' equity
and cash flows for the periods specified, and comply as to form with the
applicable accounting requirements of the Securities Act Regulations and
the OTS Regulations; except as otherwise stated in the Registration
Statement and Prospectus, said financial statements have been prepared in
conformity with generally accepted accounting principles in the United
States applied on a consistent basis; and the supporting schedules and
tables included in the Registration Statement and Prospectus present fairly
the information required to be stated therein. The other financial,
statistical and pro forma information and related notes included in the
Prospectus present fairly the information shown therein on a basis
consistent with the audited and unaudited financial statements included in
the Prospectus, and as to the pro forma adjustments, the adjustments made
therein have been consistently applied on the basis described therein.
(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, business affairs or prospects of the
Company, the MHC, the Bank and the Subsidiaries, 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
Registration Statement and Prospectus, there have been no transactions
entered into by the Company, the MHC or the Bank, other than those in the
ordinary course of business consistent with past practice, which are
material with respect to the Company, the MHC, the Bank and the
Subsidiaries, considered as one enterprise. The capitalization,
liabilities, assets, properties and business of the Company, the MHC and
the Bank conform in all material respects to the descriptions contained in
the Prospectus and none of the Company, the MHC or the Bank has any
material liabilities of any kind, contingent or otherwise, except as
disclosed in the Registration Statement or the Prospectus.
5
(xi) The Company has been duly organized and is validly existing as a
stock holding company chartered under the laws of the United States with
full corporate power and authority to own, lease and operate its
properties, to conduct its business as described in the Registration
Statement and the Prospectus, and to enter into and perform its obligations
under this Agreement and the transactions contemplated hereby; and the
Company is duly qualified to transact business and is in good standing
under the laws of the State of New Jersey and in each other jurisdiction in
which such qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the failure to
so qualify would not have a material adverse effect on the financial
condition, results of operations, business affairs or prospects of the
Company, the MHC, the Bank and the Subsidiaries, considered as one
enterprise (a "Material Adverse Effect").
(xii) Upon completion of the Offerings and the contribution of the
Foundation Shares as described in the Prospectus, the issued and
outstanding capital stock of the Company will be within the range as set
forth in the Prospectus under "Capitalization" (except for subsequent
issuances, if any, pursuant to reservations, agreements or employee benefit
plans referred to in the Prospectus). The authorized capital stock of the
Company consists of 45,000,000 shares of Common Stock and 5,000,000 shares
of preferred stock, par value $0.10 per share, and the issued and
outstanding capital stock of the Company at the date hereof is ____ shares
of Common Stock, all of which are beneficially owned and of record by the
MHC free and clear of any security interest, mortgage, pledge, lien,
encumbrance or legal or equitable claim; at the date hereof and at the
Closing Time, 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 and stated
on the cover page of the Prospectus, will be duly and validly issued and
fully paid and nonassessable; the terms and provisions of the Common Stock
and the other capital stock of the Company conform to all statements
relating thereto contained in the Prospectus; the certificates representing
the shares of Common Stock will conform to the requirements of applicable
law and regulations; and the issuance of the Securities is not subject to
preemptive or other similar rights, except for subscription rights granted
pursuant to the Plan.
(xiii) The MHC has been duly organized and is validly existing as a
mutual holding company chartered under the laws of the United States with
full corporate power and authority to own, lease and operate its
properties, to conduct its business as described in the Registration
Statement and the Prospectus, and to enter into and perform its obligations
under this Agreement and the transactions contemplated hereby; and the MHC
is duly qualified to transact business and is in good standing under the
laws of the State of New Jersey and in each other jurisdiction in which
such qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the failure to
so qualify would not have a Material Adverse Effect.
(xiv) The MHC is not authorized to issue capital stock. All holders of
the savings, demand or other authorized accounts of the Bank are members of
the MHC. As of the Closing Time referred to in Section 2, the MHC will not
own any equity securities or any equity interest in any business enterprise
except as described in the Prospectus.
6
(xv) The Bank has been duly organized and is validly existing as a
savings bank chartered under the laws of the United States State with full
corporate power and authority to own, lease and operate its properties, to
conduct its business as described in the Registration Statement and the
Prospectus, and to enter into and perform its obligations under this
Agreement and the transactions contemplated hereby; and the Bank is duly
qualified to transact business and is in good standing under the laws of
the State of New Jersey and in each other jurisdiction in which such
qualification is required, whether by reason of the ownership or leasing of
property or the conduct of business, except where the failure to so qualify
would not have a Material Adverse Effect.
(xvi) The authorized capital stock of the Bank consists of __,000,000
shares of common stock, par value $___ per share (the "Bank Common Stock"),
and the issued and outstanding capital stock of the Bank is ____ shares of
Bank Common Stock, all of which are owned beneficially and of record by the
Company free and clear of any security interest, mortgage, pledge, lien,
encumbrance or legal or equitable claim. All of the issued and outstanding
capital stock of the Bank has been duly authorized, validly issued and
fully paid and nonassessable and has been issued in compliance with all
federal and state securities laws. There are no outstanding warrants,
options or rights of any kind to acquire additional shares of capital stock
of the Bank.
(xvii) The Company, the MHC, the Bank and the Subsidiaries have each
obtained all licenses, permits and other governmental authorizations
currently required for the conduct of their respective businesses, except
where the failure to obtain such licenses, permits or other governmental
authorizations would not have a Material Adverse Effect; all such licenses,
permits and other governmental authorizations are in full force and effect
and the Company, the MHC, the Bank and the Subsidiaries are in all material
respects in compliance therewith; none of the Company, the MHC, the Bank or
any Subsidiary has received notice of any proceeding or action relating to
the revocation or Stock Issuance Application 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.
(xviii) Each Subsidiary has been duly organized 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 as a foreign corporation to transact business and is in good
standing in each jurisdiction in which such qualification is required,
whether by reason of the ownership or leasing of property or the conduct of
business, except where the failure to so qualify would not have a Material
Adverse Effect; the activities of each Subsidiary are permitted to
subsidiaries of a Federally-chartered savings bank, a Federally-chartered
stock holding company and a Federally-chartered mutual holding company by
the rules, regulations, resolutions and practices of the OTS; all of the
issued and outstanding capital stock of each 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
7
or legal or equitable claim; and there are no warrants, options or rights
of any kind to acquire shares of capital stock of any Subsidiary.
(xix) The Bank is a member of the Federal Home Loan Bank of New York;
the deposit accounts of the Bank are insured by the Federal Deposit
Insurance Corporation (the "FDIC") up to the applicable limits. The Bank is
a "qualified thrift lender" within the meaning of 12 U.S.C. Section
1467a(m).
(xx) The Company, the MHC and the Bank have taken all corporate action
necessary for them to execute, deliver and perform this Agreement and the
transactions contemplated hereby, and this Agreement has been duly executed
and delivered by, and is the valid and binding agreement of, the Company,
the MHC and the Bank, enforceable against each of them 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 the
availability of equitable remedies.
(xxi) No approval of any regulatory or supervisory or other public
authority is required in connection with the execution and delivery of this
Agreement and the issuance of both the Securities and the Foundation Shares
that has not been obtained and a copy of which has been delivered to the
Agent, except as may be required under the "Blue Sky" or securities laws of
various jurisdictions.
(xxii) None of the Company, the MHC, the Bank or any of the
Subsidiaries is in violation of their respective certificate of
incorporation, organization certificate, articles of incorporation or
charter, as the case may be, or bylaws or other written corporate
governance requirements or guidelines; and none of the Company, the MHC,
the Bank or any of the Subsidiaries is in default (nor has any event
occurred which, with notice or lapse of time or both, would constitute a
default) in the performance or observance of any obligation, agreement,
covenant or condition contained in any contract, indenture, mortgage, loan
agreement, note, lease or other instrument to which the Company, the MHC,
the Bank or any of the Subsidiaries is a party or by which it or any of
them may be bound, or to which any of the property or assets of the
Company, the MHC, the Bank or any of the Subsidiaries is subject, except
for such defaults that would not, individually or in the aggregate, have a
Material Adverse Effect; and there are no contracts or documents of the
Company, the MHC or the Bank which are required to be filed as exhibits to
the Registration Statement or the Plan which have not been so filed.
(xxiii) The execution, delivery and performance of this Agreement and
the consummation of the transactions contemplated herein, have been duly
authorized by all necessary corporate action on the part of the Company,
the MHC and the Bank, and do not and will not conflict with or constitute a
breach of, or default under, or result in the creation or imposition of any
lien, charge or encumbrance upon any property or assets of the Company, the
MHC or the Bank pursuant to, any contract, indenture, mortgage, loan
agreement, note, lease or other instrument to which the Company, the MHC or
the Bank is a party or by which it or any of them may be bound, or to which
any of the property or assets of the Company, the MHC or the Bank is
subject, except for such conflicts, breaches or
8
defaults that would not, individually or in the aggregate, have a Material
Adverse Effect; nor will such action result in any violation of the
provisions of the respective charter or bylaws of the Company, the MHC or
the Bank, or any applicable law, administrative regulation or
administrative or court decree.
(xxiv) No labor dispute with the employees of the Company, the MHC,
the Bank or the Subsidiaries exists or, to the knowledge of the Company,
the MHC, the Bank or the Subsidiaries, is imminent or threatened; and the
Company, the MHC and the Bank are not aware of any existing or threatened
labor disturbance by the employees of any of its principal suppliers or
contractors which might be expected to have a Material Adverse Effect.
(xxv) Each of the Company, the MHC, the Bank and the Subsidiaries has
good and marketable title to all properties and assets for which ownership
is material to the business of the Company, the MHC, the Bank or the
Subsidiaries and to those properties and assets described in the Prospectus
as owned by them, free and clear of all liens, charges, encumbrances or
restrictions, except such as are described in the Prospectus or are not
material in relation to the business of the Company, the MHC, the Bank or
the Subsidiaries, considered as one enterprise; and all of the leases and
subleases material to the business of the Company, the MHC, the Bank or the
Subsidiaries under which the Company, the MHC, the Bank or the Subsidiaries
hold properties, including those described in the Prospectus, are valid and
binding agreements of the Company, the MHC, the Bank or the Subsidiaries,
in full force and effect, enforceable in accordance with their terms except
as may be limited by bankruptcy, insolvency or other laws affecting the
enforceability of the rights of creditors generally and the availability of
equitable remedies.
(xxvi) None of the Company, the MHC or the Bank is in violation of any
order or directive from the OTS, the FDIC, the Commission or any regulatory
authority to make any material change in the method of conducting its
respective businesses; the Company, the MHC, the Bank and each of the
Subsidiaries 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, the FDIC and the
Commission). Neither the Company, the MHC, the Bank nor any of the
Subsidiaries is subject or is party to, or has received any notice or
advice that any of them may become subject or party to, any investigation
with respect to any cease-and-desist order, agreement, consent agreement,
memorandum of understanding or other regulatory enforcement action,
proceeding or order with or by, or is a party to any commitment letter or
similar undertaking to, or is subject to any directive by, or has been a
recipient of any supervisory letter from, or has adopted any board
resolutions at the request of, any Regulatory Agency (as defined below)
that currently restricts the conduct of their business or that in any
manner relates to their capital adequacy, their credit policies, their
management or their business (each, a "Regulatory Agreement"), nor has the
Company, the MHC, the Bank or any of the Subsidiaries been advised by any
Regulatory Agency that it is considering issuing or requesting the issuance
of any such Regulatory Agreement; and there is no unresolved violation,
criticism or exception by any Regulatory Agency with respect to any report
or statement relating to any examinations of the Company, the MHC, the Bank
or any of the Subsidiaries which in the reasonable judgment of the
9
Company, the MHC or the Bank is expected to have a Material Adverse Effect,
or which might materially and adversely affect the properties or assets
thereof or which might adversely affect the consummation of the Offerings
or the performance of this Agreement. As used herein, the term "Regulatory
Agency" means any federal or state agency charged with the supervision or
regulation of depositary institutions or holding companies of depositary
institutions, or engaged in the insurance of depositary institution
deposits, or any court, administrative agency or commission or other
governmental agency, authority or instrumentality having supervisory or
regulatory authority with respect to the Company, the MHC, the Bank or any
of the Subsidiaries.
(xxvii) There is no action, suit or proceeding before or by any court
or governmental agency or body, domestic or foreign, now pending, or, to
the knowledge of the Company, the MHC or the Bank, threatened, against or
affecting the Company, the MHC or the Bank which is required to be
disclosed in the Registration Statement (other than as disclosed therein),
or which might have a Material Adverse Effect, or which might materially
and adversely affect the properties or assets thereof, or which might
adversely affect the consummation of the Offerings, or the performance of
this Agreement; all pending legal or governmental proceedings to which the
Company, the MHC, 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.
(xxviii) The Company, the MHC and the Bank have obtained (a) the
opinion of its counsel, ▇▇▇▇▇▇▇ Spidi & ▇▇▇▇▇, P.C., with respect to the
legality of the issuance of Securities and the Foundation Shares, (b) the
opinion of ▇▇▇▇▇▇▇ Spidi & ▇▇▇▇▇, P.C. with respect to certain federal
income tax consequences of the Offerings and the Plan, and (c) the opinion
of its independent registered public accounting firm, ▇▇▇▇▇ ▇▇▇▇▇▇ Company
LLP, with respect to certain state income tax consequences of the Offerings
and the Plan; copies of all such opinions are filed as exhibits to the
Registration Statement; all material aspects of the aforesaid legality
opinion and federal and state income tax opinions are accurately summarized
in the Prospectus under "Description of Capital Stock" and "The Offering -
Tax Effects of the Offering," respectively, and the facts and
representations upon which such opinions is based are truthful, accurate
and complete in all material respects; and neither the Company, the MHC,
nor the Bank has taken or will take any action inconsistent therewith.
(xxix) The Company is not and, upon completion of the Offerings and
sale of the Securities and the application of the net proceeds therefrom,
will not be, required to be registered as an "investment company" as that
term is defined under the Investment Company Act of 1940, as amended.
(xxx) All of the loans represented as assets on the most recent
consolidated financial statements or consolidated selected financial
information of the Company 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
10
laws applicable to such loans, except for violations which, if asserted,
would not result in a Material Adverse Effect.
(xxxi) To the knowledge of the Company, the MHC, the Bank and each
Subsidiary, with the exception of the intended loan to the Bank's ESOP by
the Company to enable the ESOP to purchase Securities in an amount up to 8%
of the Securities sold in the Offerings, none of the Company, the MHC, the
Bank or their employees has made any payment of funds of the Company, the
MHC or the Bank as a loan for the purchase of the Common Stock or made any
other payment of funds prohibited by law, and no funds have been set aside
to be used for any payment prohibited by law.
(xxxii) Each of the Company, the MHC, the Bank and each of the
Subsidiaries maintains a system of internal accounting controls sufficient
to provide reasonable assurance that (a) transactions are executed in
accordance with management's general or specific authorizations; (b)
transactions are recorded as necessary to permit preparation of financial
statements in conformity with generally accepted accounting principles and
to maintain asset accountability; (c) access to assets is permitted only in
accordance with management's general or specific authorization; and (d) the
recorded accountability for assets is compared with the existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences.
(xxxiii) The Company, the MHC, the Bank and each Subsidiary are in
compliance in all material respects with the applicable financial
recordkeeping and reporting requirements of the Currency and Foreign
Transaction Reporting Act of 1970, as amended, and the rules and
regulations thereunder. The Bank has established compliance programs to
ensure compliance with the requirements of the USA Patriot Act and all
applicable regulations promulgated thereunder. The Bank is in compliance in
all material respects with the USA Patriot Act and all applicable
regulations promulgated thereunder, and there is no charge, investigation,
action, suit or proceeding before any court, regulatory authority or
governmental agency or body pending or, to the knowledge of the Company,
the MHC and the Bank, threatened regarding the Bank's compliance with the
USA Patriot Act or any regulations promulgated thereunder.
(xxxiv) None of the Company, the MHC, the Bank or any Subsidiary nor
any properties owned or operated by the Company, the MHC, the Bank or any
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 operation or business affairs of the
Company, the MHC, the Bank and any 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, the MHC, the
Bank or any Subsidiary, threatened, relating to the liability of any
property owned or operated by the Company, the MHC, the Bank or any
Subsidiary, under any Environmental Law, except for such actions, suits or
proceedings, or demands, claims, notices or investigations that,
individually or in the aggregate, would not have a Material Adverse
11
Effect. 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.
(xxxv) The Company, the MHC, the Bank and each Subsidiary have filed
all federal, state and local income and 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. No tax deficiency has been
asserted, and the Company, the MHC and the Bank have no knowledge of any
tax deficiency which could be asserted against the Company, the MHC, the
Bank or the Subsidiaries.
(xxxvi) The Company has received all approvals required to consummate
the Offerings, and to have the Securities and the Foundation Shares quoted
on the Nasdaq National Market effective as of the Closing Time referred to
in Section 2 hereof.
(xxxvii) The Company has filed a registration statement for the Common
Stock under Section 12(g) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), and such registration statement was declared
effective concurrent with the effectiveness of the Registration Statement.
(xxxviii) To the knowledge of the Company, there are no affiliations
or associations (as such terms are defined by the National Association of
Securities Dealers, Inc. ("NASD")) between any member of the NASD and any
of the Company's, the MHC's or the Bank's officers or directors.
(xxxix) The Company, the MHC, the Bank and each Subsidiary carries, or
is covered by, insurance in such amounts and covering such risks as is
adequate for the conduct of their respective businesses and the value for
their respective properties as is customary for companies engaged in
similar industries.
(xl) The Company, the MHC and the Bank have not relied on Agent or its
counsel for any legal, tax or accounting advice in connection with the
Offerings.
(xli) The records of eligible account holders and supplemental
eligible account holders are accurate and complete in all material
respects.
(xlii) The Company, the MHC, the Bank and each Subsidiary is in
compliance in all material respects with all presently applicable
provisions of the Employee Retirement
12
Income Security Act of 1974, as amended, including the regulations and
published interpretations thereunder ("ERISA"); no "reportable event" (as
defined in ERISA) has occurred with respect to any "pension plan" (as
defined in ERISA) for which the Company, the MHC, the Bank or any
Subsidiary, respectively, would have any liability; each of the Company,
the MHC, the Bank and each Subsidiary has not incurred and does not expect
to incur liability under (i) Title IV of ERISA with respect to termination
of , or withdrawal from, any "pension plan" or (ii) Sections 412 or 4971 of
the Internal Revenue Code of 1986, as amended, including the regulations
and published interpretations thereunder (the "Code"); and each "pension
plan" for which the Company, the MHC, the Bank and any Subsidiary would
have any liability that is intended to be qualified under Section 401(a) of
the Code is so qualified in all material respects and nothing has occurred,
whether by action or by failure to act, which would cause the loss of such
qualification.
(xliii) The Company has established and maintains disclosure controls
and procedures (as such term is defined in Rule 13a-14 and 15d-14 under the
Exchange Act), which (i) are designed to ensure that material information
relating to the Company, including its consolidated subsidiaries, is made
known to the Company's principal executive officer and its principal
financial officer by others within those entities; and (ii) are effective
in all material respects to perform the functions for which they were
established. There (i) are not any significant deficiencies in the design
or operation of internal controls which could adversely affect the
Company's ability to record, process, summarize, and report financial data
or (ii) has not been any fraud, whether or not material, that involves
management or other employees who have a significant role in the Company's
internal controls. Since the date of the most recent evaluation of the
Company's disclosure controls and procedures, there have been no
significant changes in internal controls or in other factors that could
significantly affect internal controls, including any corrective actions
with regard to significant deficiencies and material weaknesses.
(xliv) The Company is in compliance with the applicable provisions of
the Sarbanes Oxley Act of 2002 (the "Sarbanes Oxley Act"), the rules and
regulations of the Commission thereunder, and the Nasdaq corporate
governance rules, each of which is applicable to the Company as of the date
of this agreement. The Company will use its best efforts to comply with
those provisions of the Sarbanes Oxley Act and the Nasdaq corporate
governance rules that will become effective and applicable to the Company
in the future, including, but not limited to, the requirement to assess its
internal controls under Section 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act.
(xlv) The Foundation has been duly authorized and incorporated and is
validly existing as a non-stock corporation in good standing under the laws
of the State of New Jersey with corporate power and authority to own, lease
and operate its properties and to conduct its business as described in the
Prospectus; the Foundation will not be a savings and loan holding company
within the meaning of 12 C.F.R. Section 574.2(q) as a result of the
issuance of the Foundation shares to it in accordance with the terms of the
Plan and in the amount as described in the Prospectus; no approvals are
required to establish the Foundation and to contribute the Foundation
Shares thereto as described in the Prospectus other than the conditions
imposed by the OTS; except as specifically disclosed in the Prospectus,
there are
13
no agreements and/or understandings, written or oral, between the Company,
the MHC and the Bank on the one hand and the Foundation, on the other, with
respect to the control, directly or indirectly, over the voting and the
acquisition or disposition of the Foundation Shares; at the Closing Time,
the Foundation Shares will have been duly authorized for issuance and, when
issued and contributed by the Company pursuant to the Plan, will be duly
and validly issued and fully paid and nonassessable; and the issuance of
the Foundation shares is not subject to preemptive or similar rights.
(vlvi) The Company, the MHC and the Bank have obtained an opinion of
its counsel, ▇▇▇▇▇▇▇ Spidi & ▇▇▇▇▇, P.C., with respect to certain federal
and state income tax consequences of the contribution of the Foundation
Shares to the Foundation, a copy of which is filed as an exhibit to the
Stock Issuance Application; all material aspects of the aforesaid opinion
are accurately summarized in the Prospectus under "Roma Bank Community
Foundation - Tax Considerations," and the facts and representations upon
which such opinion is based are truthful, accurate and complete in all
material respects; and neither the Company, the MHC, nor the Bank has taken
or will take any action inconsistent therewith.
(b) Any certificate signed by any officer of the Company, the MHC, the
Bank or any Subsidiary and delivered to either of the Agent or counsel for
the Agent shall be deemed a representation and warranty by the Company, the
MHC or the Bank to the Agent as to the matters covered thereby.
SECTION 2. APPOINTMENT OF SANDLER ▇'▇▇▇▇▇; 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 ▇'▇▇▇▇▇ as its Agent to consult with
and advise the Company, and to assist the Company with the solicitation of
subscriptions and purchase orders for Securities, in connection with the
Company's sale of Common Stock in the Offerings. On the basis of the
representations and warranties herein contained, and subject to the terms
and conditions herein set forth, Sandler ▇'▇▇▇▇▇ 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 ▇'▇▇▇▇▇ pursuant to this appointment include the following: (i)
consulting as to the securities marketing implications of any aspect of the
Plan; (ii) reviewing with the Board of Directors of the Company the
financial impact of the Offerings on the Company, based upon the
Appraiser's appraisal of the Common Stock; (iii) reviewing all offering
documents, including the Prospectus, stock order forms and related offering
materials (it being understood that preparation and filing of such
documents is the sole responsibility of the Company and its counsel); (iv)
assisting in the design and implementation of a marketing strategy for the
Offerings; (v) assisting management of the Company in scheduling and
preparing for meetings with potential investors and/or other broker-dealers
in connection with the Offerings; and (vi) providing such other general
advice and assistance as may be requested to promote the successful
completion of the Offerings.
14
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 and Community Offering, unless the Company and the Agent agree
in writing to extend such period, or (b) the receipt and acceptance of
subscriptions and purchase orders for all of the Securities, or (c) the
completion of the Syndicated Community Offering.
If any of the Securities remain available after the expiration of the
Subscription and Community Offering, at the request of the Company, Sandler
▇'▇▇▇▇▇ will seek to form a syndicate of registered brokers or dealers
("Selected Dealers") to assist in the solicitation of purchase orders of
such Securities on a best efforts basis. Sandler ▇'▇▇▇▇▇ will endeavor to
limit the aggregate fees to be paid by the Company 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 Sandler ▇'▇▇▇▇▇ and Selected Dealers shall not exceed 6.0% of
the aggregate dollar amount of the Securities sold in the Syndicated
Community Offering by such Selected Dealers. Sandler ▇'▇▇▇▇▇ will endeavor
to distribute the Securities among the Selected Dealers in a fashion which
best meets the distribution objective of the Company, which may result in
limiting the allocation of stock to certain Selected Dealers. It is
understood that in no event shall Sandler ▇'▇▇▇▇▇ be obligated to act as a
Selected Dealer or to take or purchase any Securities.
In the event the Company is unable to sell at least the total minimum
of the Securities, as set forth on the cover page of the Prospectus, within
the period herein provided, this Agreement shall terminate and the Company
shall refund to any persons who have subscribed for any of the Securities
the full amount which it may have received from them, together with
interest as provided in the Prospectus, and no party to this Agreement
shall have any obligation to the others hereunder, except for the
obligations of the Company, the MHC 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 ▇▇▇▇▇▇▇ Spidi & ▇▇▇▇▇, P.C., at
10:00 a.m., Eastern 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
15
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 the reimbursement of the expenses specified in Section
4 hereof, the Agent will receive the following compensation for its
services hereunder:
(a) One percent (1.00%) of the aggregate purchase price of the
Securities sold in the Subscription and Community Offering, excluding in
each case (i) shares purchased by any employee benefit plan of the Company
established for the benefit of their respective directors, officers and
employees, (ii) shares contributed to any charitable foundation of the
Company, and/or (iii) shares purchased by any director, officer or employee
of the Company or members of their immediate families; and
(b) With respect to any Securities sold by a NASD member firm (other
than Sandler ▇'▇▇▇▇▇) in the Syndicated Community Offering, (i) the
compensation payable to Selected Dealers, and (ii) a management fee to
Sandler ▇'▇▇▇▇▇ of one percent (1.00%) of the aggregate purchase price of
the Securities sold in the Syndicated Community Offering. Any fees payable
to Sandler ▇'▇▇▇▇▇ for Securities sold by Sandler ▇'▇▇▇▇▇ under any such
agreement shall be limited to an aggregate of six percent (6.00%) of the
purchase price of the Securities sold by Sandler ▇'▇▇▇▇▇ and other NASD
member firms.
If this Agreement is terminated by the Agent in accordance with the
provisions of Section 9(a) hereof, no fee shall be payable by the Company
to the Agent; provided, however, that 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. In
addition, the Company shall be obligated to pay the fees and expenses as
contemplated by the provisions of Section 4 hereof in the event of any such
termination.
All fees and expenses 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 stock offering process, the Company agrees to make an
advance payment to the Agent in the amount of $25,000, which has been
previously paid and which shall be credited against any fees or
reimbursement of expenses payable hereunder.
SECTION 3. COVENANTS OF THE COMPANY, THE MHC AND THE BANK. The
Company, the MHC and the Bank covenant with the Agent as follows:
(a) The Company, the MHC and the Bank will prepare and file such
amendments or supplements to the Registration Statement, the Prospectus,
the Plan and the Stock Issuance Application as may hereafter be required by
the Securities Act Regulations or the OTS Regulations or as may hereafter
be requested by the Agent. Following
16
completion of the Subscription and Community Offering, in the event of a
Syndicated Community Offering, the Company, the MHC 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 and
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 the Commission a
prospectus or prospectus supplement containing information relating to the
results of the Subscription and Community Offering and pricing information
pursuant to Rule 424 of the Securities Act Regulations, in either case in a
form acceptable to the Agent. The Company, the MHC and the Bank will notify
the Agent immediately, and confirm the notice in writing, (i) of the
effectiveness of any post-effective amendment of the Registration
Statement, the filing of any supplement to the Prospectus and the filing of
any amendment to the Stock Issuance Application, (ii) of the receipt of any
comments from the OTS or the Commission with respect to the transactions
contemplated by this Agreement or the Stock Issuance Application, (iii) of
any request by the Commission or the OTS for any amendment to the
Registration Statement, the Plan or the Stock Issuance 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, the MHC and the Bank
will take all necessary action to prevent the issuance of any stop order
and, if any stop order is issued, to obtain the lifting thereof at the
earliest possible moment.
(b) The Company, the MHC and the Bank will give the Agent notice of
its intention to file or prepare any amendment to the Stock Issuance
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 Securities 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, the MHC and the Bank will deliver to the Agent as
many signed copies and as many conformed copies of the Stock Issuance
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.
17
(d) During the period when the Prospectus is required to be delivered,
the Company, the MHC and the Bank will comply, at their own expense, with
all requirements imposed upon them by the OTS, by the applicable OTS
Regulations, as from time to time in force, and by the Nasdaq National
Market, the Securities Act, the Securities Act Regulations, the Exchange
Act, and the rules and regulations of the Commission promulgated
thereunder, including, without limitation, Regulation M under the Exchange
Act, so far as necessary to permit the continuance of sales or dealing in
the Securities during such period in accordance with the provisions hereof
and the Prospectus.
(e) If any event or circumstance shall occur as a result of which it
is necessary, in the opinion of counsel for the Agent, to amend or
supplement the Registration Statement or Prospectus in order to make the
Prospectus not misleading in the light of the circumstances existing at the
time it is delivered to a purchaser, the Company, the MHC and the Bank will
forthwith amend or supplement the Registration Statement or Prospectus (in
form and substance satisfactory to counsel for the Agent) so that, as so
amended or supplemented, the Registration Statement or Prospectus will not
include an untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in the light of the
circumstances existing at the time it is delivered to a purchaser, not
misleading, and the Company, the MHC and the Bank will furnish to the Agent
a reasonable number of copies of such amendment or supplement. For the
purpose of this subsection, the Company, the MHC and the Bank will each
furnish such information with respect to itself as the Agent may from time
to time reasonably request.
(f) The Company, the MHC and the Bank will take all necessary action,
in cooperation with the Agent, to qualify the Securities for offering and
sale under the applicable securities laws of such states of the United
States and other jurisdictions as the applicable Conversion Regulations may
require and as the Agent and the Company have agreed; provided, however,
that none of the Company, the MHC or the Bank shall be obligated to file
any general consent to service of process or to qualify as a foreign
corporation in any jurisdiction in which it is not so qualified. In each
jurisdiction in which the Securities have been so qualified, the Company,
the MHC and the Bank will file such statements and reports as may be
required by the laws of such jurisdiction to continue such qualification in
effect for a period of not less than one year from the effective date of
the Registration Statement.
(g) The Company authorizes Sandler ▇'▇▇▇▇▇ and any Selected Dealer 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, an earnings statement covering a twelve month
period beginning not later than the first day of the Company's fiscal
quarter next following the effective date of the Registration Statement (as
defined in Rule 158 of the Securities Act Regulations) that will satisfy
the provisions of Section 11(a) of the Securities Act.
18
(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), the Company will make available to its stockholders
consolidated summary financial information of the Company and the Bank 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 publicly available, a copy of each report or other document of the
Company furnished generally to stockholders of the Company or furnished to
or filed with the Commission under the Exchange Act or any national
securities exchange or system on which any class of securities of the
Company is listed, and (ii) from time to time, such other information
concerning the Company as the Agent may reasonably request.
(k) The Company, the MHC and the Bank will conduct the Offerings,
including the formation and operation of the Foundation, in all material
respects in the manner described in the Prospectus and in accordance with
the Plan, the Securities Act Regulations and all other applicable
regulations, decisions and orders, including all applicable terms,
requirements and conditions precedent to the Offerings imposed upon the
Company, the MHC or the Bank by the OTS, the Commission and any other
regulatory or Blue Sky authority.
(l) During the period in which the Prospectus is required to be
delivered, the Company, the MHC and the Bank will comply, at their own
expense, with all requirements imposed by the Commission and the Nasdaq
National Market, or pursuant to the applicable Securities Act Regulations
and Nasdaq National Market Regulations, as from time to time in force.
(m) The Company will promptly inform the Agent upon its receipt of
service with respect to any litigation or administrative action instituted
with respect to the Offerings.
(n) Each of the Company and the Bank will use the net proceeds
received by it from the sale of the Securities in the manner specified in
the Prospectus under "Use of Proceeds."
19
(o) The Company will report the use of proceeds from the Offerings on
its first periodic report filed pursuant to Sections 13(a) and 15(d) of the
Exchange Act and on any subsequent periodic reports as may be required
pursuant to Rule 463 of the Securities Act Regulations.
(p) The Company will maintain the effectiveness of the Exchange Act
Registration Statement for not less than three years and will use its best
efforts to comply in all material respects with its filing obligations
under the Exchange Act during such period. The Company will use its best
efforts to effect and maintain the listing of the Common Stock on the
Nasdaq National Market and, once listed on the Nasdaq National Market, the
Company will use its best efforts to comply with all applicable corporate
governance standards required by the Nasdaq National Market during such
period. The Company will file with the Nasdaq National Market all documents
and notices required by the Nasdaq National 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.
(q) 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 Rule 2790 of the National Association of
Securities Dealers, Inc.
(r) Other than in connection with the Offerings or 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 and the Foundation Shares for a period of 180 days
following the Closing Time.
(s) During the period beginning on the date hereof and ending on the
later of the fifth 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 made prior to the fifth anniversary of the Closing Time,
respectively, none of the Company, the MHC or the Bank shall, without the
prior written consent of the Agent, 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.
(t) The Company, the MHC and the Bank will comply with the conditions
imposed by or agreed to with the OTS in connection with its approval of the
Stock Issuance Application and the conduct of the Offering.
(u) The Company shall not deliver the Securities until the Company,
the MHC and the Bank have satisfied each condition set forth in Section 5
hereof, unless such condition is waived by the Agent.
(v) The Company, the MHC and the Bank will furnish to Sandler ▇'▇▇▇▇▇
as early as practicable prior to the Closing Date, but no later than two
(2) full business days prior thereto, a copy of the latest available
unaudited interim consolidated financial
20
statements of the Company which have been read by ▇▇▇▇▇ ▇▇▇▇▇▇ Company LLP,
as stated in their letters to be furnished pursuant to subsections (f) and
(g) of Section 5 hereof.
(w) During the period in which the Prospectus is required to be
delivered, each of the Company, the MHC and the Bank will conduct its
business in compliance in all material respects with all applicable federal
and state laws, rules, regulations, decisions, directives and orders,
including all decisions, directives and orders of the Commission, the
Nasdaq National Market and the OTS.
(x) The Company, the MHC and the Bank will not amend the Plan in any
manner that would affect the sale of the Securities or the terms of this
Agreement without the written consent of the Agent.
(y) The Company, the MHC and the Bank will not, prior to the Closing
Time, incur any liability or obligation, direct or contingent, or enter
into any material transaction, other than in the ordinary course of
business consistent with past practice, except as contemplated by the
Prospectus.
(z) The Company, the MHC and the Bank will use all reasonable efforts
to comply with, or cause to be complied with, the conditions precedent to
the several obligations of the Agent specified in Section 5 hereof.
(aa) The Company, the MHC and the Bank will provide the Agent with any
information necessary to carry out the allocation of the Securities in the
event of an oversubscription, and such information will be accurate and
reliable in all material respects.
(bb) The Company, the MHC and the Bank will notify the Agent when
funds have been received for the minimum number of Securities set forth in
the Prospectus.
(cc) The Company and the Bank will comply with the conditions imposed
by or agreed to with the OTS in connection with its approval of the Plan
relating to the establishment and the operation of the Foundation; the
Company and the Bank shall use their best efforts to ensure that the
Foundation submits within the time frames required by applicable law a
request to the Internal Revenue Service to be recognized as a tax-exempt
organization under Section 501(c)(3) of the Code; the Company and the Bank
will take no action which will result in the possible loss of the
Foundation's tax exempt status; and neither the Company nor the Bank will
contribute any additional assets to the Foundation until such time that
such additional contributions will be deductible for federal and state
income tax purposes.
(dd) The Company, the MHC and the Bank will use their best efforts to
complete the conditions precedent to the Offerings and the establishment of
the Foundation in accordance with the Plan, the applicable Conversion
Regulations and all other applicable laws, regulations, decisions and
orders, including all material terms, conditions, requirements and
provisions precedent to the Offerings imposed upon the Company, the MHC or
the Bank by the Commission or the OTS or any other regulatory authority or
Blue Sky authority, and
21
to comply with those which the regulatory authority permits to be completed
after the Offerings.
(ee) The Company, the MHC and the Bank will not distribute any
offering material in connection with the Offering except for the Prospectus
and any supplemental sales material that has been filed with the
Registration Statement and the Stock Issuance Application.
SECTION 4. PAYMENT OF EXPENSES. The Company, the MHC 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,
including any required NASD filing fees, (ii) the cost of printing and
distributing the offering materials; (iii) the costs of blue sky
qualification (including fees and expenses of blue sky counsel) of the
Securities in the various states; (iv) listing fees; and (v) all fees and
disbursements of the Company's counsel, accountants and other advisors. In
the event the Agent incurs any such fees and expenses on behalf of the
Company, the MHC or the Bank, the Bank will reimburse the Agent for such
fees and expenses whether or not the Offerings are consummated.
The Company, the MHC and the Bank jointly and severally agree to pay
certain expenses incident to the performance of the Agent's obligations
under this Agreement, regardless of whether the Offerings are consummated,
including (i) the filing fees paid or incurred by the Agent in connection
with all filings with the NASD; (ii) all expenses associated with the
operation of the Stock Offering Center; and (iii) all reasonable
out-of-pocket expenses incurred by the Agent relating to the Offerings,
including without limitation, fees and expenses of the Agent's counsel,
advertising, promotional, syndication and travel expenses (subject to an
aggregate maximum of $50,000). The Agent shall document such expenses to
the reasonable satisfaction of the Company.
The provisions of this Section 4 are not intended to apply to or in
any way impair the indemnification provisions set forth in Section 6
hereof.
SECTION 5. CONDITIONS OF AGENT'S OBLIGATIONS. The Company, the MHC,
the Bank and the Agent agree that the issuance and the sale of Securities
and all obligations of the Agent hereunder are subject to the accuracy of
the representations and warranties of the Company, the MHC and the Bank
herein contained as of the date hereof and the Closing Time, to the
accuracy of the statements of officers and directors of the Company, the
MHC and the Bank made pursuant to the provisions hereof, to the performance
by the Company, the MHC and the Bank of their obligations hereunder, and to
the following further conditions:
(a) No stop order suspending the effectiveness of the Registration
Statement shall have been issued under the Securities 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
22
Commission or 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
▇▇▇▇▇▇▇ Spidi & ▇▇▇▇▇, P.C., counsel for the Company, the MHC and
the Bank, in form and substance satisfactory to counsel for the
Agent, to the effect that:
(i) The Company has been duly organized and is validly
existing as a stock holding company chartered under the laws
of the United States; the MHC has been duly organized and is
validly existing as a mutual holding company chartered under
the laws of the United States; the Bank has been duly
organized and is validly existing as a savings bank
chartered under the laws of the United States.
(ii) Each of the Company, the MHC and the Bank has full
corporate power and authority to own, lease and operate its
properties and to conduct its business as described in the
Registration Statement and the Prospectus and to enter into
and perform its obligations under this Agreement and the
transactions contemplated hereby. (iii) Each of the MHC and
the Bank is duly qualified as a foreign corporation to
transact business and is in good standing under the laws of
the State of New Jersey and in each other jurisdiction in
which such qualification is required, whether by reason of
the ownership or leasing of property or the conduct of
business, except where the failure to so qualify would not
have a Material Adverse Effect.
(iv) The Company is duly qualified as a foreign
corporation to transact business and is in good standing
under the laws of the State of New Jersey and in each other
jurisdiction in which such qualification is required,
whether by reason of the ownership or leasing of property or
the conduct of business, except where the failure to so
qualify would not have a Material Adverse Effect.
(v) The authorized capital stock of the Company
consists of 45,000,000 shares of Common Stock and 5,000,000
shares of preferred stock, par value $0.10 per share, and
the issued and outstanding capital stock of the Company is
____ shares of Common Stock, all of which are owned
beneficially and of record by the MHC free and clear of any
security interest, mortgage, pledge, lien, encumbrance or
legal or equitable claim; upon consummation of the
23
Offerings, and the issuance of the Foundation Shares to the
Foundation immediately upon completion thereof, the issued
and outstanding capital stock of the Company will be within
the range as forth in the Prospectus under "Capitalization."
(vi) The authorized capital stock of the Bank consists
of ______ shares of common stock, par value $__.00 per
share, and the issued and outstanding capital stock of the
Bank is _______ shares of common stock, all of which are
owned beneficially and of record by the Company free and
clear of any security interest, mortgage, pledge, lien,
encumbrance or legal or equitable claim. All of the issued
and outstanding capital stock of the Bank has been duly
authorized, validly issued and fully paid and nonassessable
and has been issued in compliance with all federal and state
securities laws.
(vii) The Securities and the Foundation Shares have
been duly and validly authorized for issuance and sale; the
Securities, when issued and delivered by the Company
pursuant to the Plan against payment of the consideration
calculated as set forth in the Plan, or contributed by the
Company pursuant to the Plan in the case of the Foundation
Shares, will be duly and validly issued and fully paid and
nonassessable.
(viii) The issuance of the Securities and the
Foundation Shares is not subject to preemptive rights
arising by operation of law, or, to such counsel's
knowledge, otherwise, except for subscription rights granted
pursuant to the Plan.
(ix) The issuance of the Securities and the Foundation
Shares is in compliance with all conditions imposed upon the
Company, the MHC and the Bank by the OTS under the terms of
its written approval.
(x) Each of the Company and the MHC is registered as a
savings and holding company under the Home Owners Loan Act,
as amended.
(xi) 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.
(xii) Each Subsidiary has been duly incorporated and is
validly existing as a corporation in good standing under the
laws of the jurisdiction of its incorporation, and each of
the Subsidiaries has full corporate power and authority to
own, lease and operate its properties and to conduct its
business as described in the Registration
24
Statement and Prospectus, and is duly qualified as a foreign
corporation to transact business and is in good standing in
each jurisdiction in which such qualification is required,
whether by reason of the ownership or leasing of property or
the conduct of business, except where the failure to so
qualify would not have a Material Adverse Effect; the
activities of each Subsidiary as described in the
Registration Statement and Prospectus are permitted to
subsidiaries of a Federally-chartered savings bank, a
Federally-chartered stock holding company and a
Federally-chartered mutual holding company by the rules,
regulations, resolutions and practices of the OTS; all of
the issued and outstanding capital stock of each Subsidiary
has been duly authorized and validly issued, is fully paid
and non-assessable and is owned by the Bank directly, free
and clear of any security interest, mortgage, pledge, lien,
encumbrance, or legal or equitable claim.
(xiii) The Foundation is duly incorporated and is
validly existing as a non-stock corporation in good standing
under the laws of the State of New Jersey with corporate
power and authority to own, lease and operate its properties
and to conduct its business as described in the Prospectus;
the Foundation is not a savings and loan holding company
within the meaning of 12 C.F.R. Section 574.2(q) as a result
of the issuance of the Foundation Shares to it in accordance
with the terms of the Plan and in the amounts as described
in the Prospectus; no approvals are required to establish
the Foundation and to contribute the Foundation Shares
thereto as described in the Prospectus other than those set
forth in any written order of approval of the Stock Issuance
Application, a copy of which was provided to the Agent prior
to the Closing Time; and the issuance of the Foundation
Shares to the Foundation is registered pursuant to the
Registration Statement.
(xiv) The OTS has duly approved the Stock Issuance
Application and the Plan; to such counsel's knowledge, such
approval remains in full force and effect and no action is
pending, or to such counsel's knowledge, threatened
respecting the Stock Issuance Application, including the
Plan. The Stock Issuance Application complies as to form in
all material respects with the applicable requirements of
the OTS, includes all documents required to be filed as
exhibits thereto, and is, to such counsel's knowledge,
truthful, accurate and complete.
(xv) The execution and delivery of this Agreement, the
incurrence of the obligations herein set forth, and the
consummation of the transactions contemplated hereby, (A)
have been duly and validly authorized by all necessary
corporate action on the part of
25
each of the Company, the MHC and the Bank, and this
Agreement constitutes the legal, valid and binding agreement
of each of the Company, the MHC and the Bank, enforceable in
accordance with its terms, except as rights to indemnity and
contribution hereunder may be limited under applicable law
(it being understood that such counsel may avail itself of
customary exceptions concerning the effect of bankruptcy,
insolvency or similar laws and the availability of equitable
remedies); (B) 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 MHC, the Bank or any Subsidiary; and (C)
will not conflict with or constitute a breach of, or default
under, and no event has occurred which, with notice or lapse
of time or both, would constitute a default under, or result
in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company, the
MHC, the Bank or the Subsidiaries pursuant to any contract,
indenture, mortgage, loan agreement, note, lease or other
instrument to which the Company, the MHC, the Bank or the
Subsidiaries is a party or by which any of them may be
bound, or to which any of the property or assets of the
Company, the MHC, the Bank or the Subsidiaries is subject
that, individually or in the aggregate, would have a
Material Adverse Effect.
(xvi) No approval of any regulatory or supervisory or
other public authority other than the Commission or the OTS
is required in connection with the final use of the
Prospectus.
(xvii) The Registration Statement is effective under
the Securities Act and no stop order suspending the
effectiveness of the Registration Statement has been issued
under the Securities Act or, to such counsel's knowledge,
proceedings therefor initiated or threatened by the
Commission.
(xviii) 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 both the Securities and the
Foundation Shares and the consummation of the transactions
contemplated by the Plan, except as may be required under
the securities or "Blue Sky" laws of various jurisdictions
as to which no opinion need be rendered.
(xix) 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
26
with the applicable requirements of the Securities Act and
the Securities Act Regulations.
(xx) The Common Stock conforms to the description
thereof contained in the Prospectus, and the form of
certificate used to evidence the Common Stock complies with
all applicable statutory and regulatory requirements.
(xxi) There are no legal or governmental proceedings
pending or, to such counsel's knowledge, threatened against
or affecting the Company, the MHC, the Bank or the
Subsidiaries which are required, individually or in the
aggregate, 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 MHC, the Bank or any 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.
(xxii) The information in the Prospectus under "Risk
Factors - Persons Who Purchase Stock in the Offering Will
Own a Minority of Roma Financial Corporation's Common Stock
and Will Not Be Able to Exercise Voting Control Over Most
Matters Put to a Vote of Stockholders, Including Any
Proposal Regarding the Acquisition of Roma Financial
Corporation" "Provisions in Our Charter and Bylaws Limit the
Rights of Stockholders, May Deter Potential Takeovers and
May Reduce the Trading Price of Our Stock," "Our Policy
Regarding Dividends," "Regulation," "Taxation," "The
Offering," "Roma Bank Community Foundation," "Restrictions
on Acquisition of Roma Financial Corporation," "Description
of Capital Stock" and "Legal and Tax Opinions", to the
extent that it constitutes matters of law, summaries of
legal matters, documents or proceedings, or legal
conclusions, has been reviewed by them and is complete and
accurate in all material respects.
(xxiii) To such counsel's knowledge, there are no
contracts, indentures, mortgages, loan agreements, notes,
leases or other instruments required to be described or
referred to in the Registration Statement, the Stock
Issuance Application and Prospectus or to be filed as
exhibits thereto other than those described or referred to
therein or filed as exhibits thereto and the descriptions
thereof or references thereto are correct, 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 or observance of any material obligation,
agreement, covenant or condition contained in any
27
contract, indenture, mortgage, loan agreement, note, lease
or other instrument so described, referred to or filed.
(xxiv) The Plan and the establishment and funding of
the Foundation have been duly authorized by the Boards of
Directors of the Company, the MHC and the Bank and, the
OTS's approval of the Plan remains in full force and effect;
the Company, the MHC and the Bank have conducted the
Offerings and the establishment and funding of the
Foundation in all material respects in accordance with the
Plan and all other applicable regulations, decisions and
orders thereunder, including all material applicable terms,
conditions, requirements and conditions precedent to the
Offerings imposed upon the Company, the MHC 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 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, including the
establishment of the Foundation.
(xxv) (A) None of the Company, the MHC, the Bank, the
Foundation or any of the Subsidiaries is in violation of
their respective certificates of incorporation, organization
certificate, articles of incorporation or charter, as the
case may be, or bylaws and (B) to such counsel's knowledge,
the Company, the MHC, the Bank and the Subsidiaries are not
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 MHC, the Bank or the
Subsidiaries is a party or by which the Company, the MHC,
the Bank, the Subsidiaries or any of their property may be
bound.
(xxvi) The Company is not and, upon completion of the
Offerings and the sale of the Common Stock and the
application of the net proceeds as described in the
Prospectus under the caption "How We Intend to Use the
Proceeds from the Offering," will not be 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
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Agent, with respect
to the matters set forth in Section 5(b)(1)(i), (iv), (v), (vi),
(vii), (ix), (xi), (xiv), (xv), (xvi), (xvii) and (xviii) and
such other matters as the Agent may reasonably require.
28
(3) In addition to giving their opinions required by
subsections (b)(l) and (b)(2), respectively, of this Section,
▇▇▇▇▇▇▇ Spidi & ▇▇▇▇▇, P.C. and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & Aguggia LLP
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 and schedules and
other financial or statistical data included therein, as to which
counsel need make no statement), at the time it became effective,
contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary
to make the statements therein not misleading or that the
Prospectus (except for 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, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇ Spidi &
▇▇▇▇▇, P.C. may rely as to matters of fact on certificates of officers and
directors of the Company, the MHC, the Bank and the Subsidiaries and
certificates of public officials, and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & Aguggia, LLP may also
rely on the opinion of ▇▇▇▇▇▇▇ Spidi & ▇▇▇▇▇, P.C. with respect to matters set
forth in Section 5(b)(1)(i), (iv), (v), (vi), (vii), (ix), (xi), (xiv), (xv),
(xvi), (xvii) and (xviii).
(c) At Closing Time referred to in Section 2, the Company, the MHC and the
Bank shall have completed in all material respects the conditions precedent to
the Offerings in accordance with the Plan, applicable laws, regulations,
decisions and orders, including all terms, conditions, requirements and
provisions precedent to the Offerings imposed upon the Company, the MHC or the
Bank by the OTS, or any other regulatory authority other than those which the
OTS permits to be completed after the Offerings.
(d) At Closing Time, there shall not have been, since the date hereof or
since the respective dates as of which information is given in the Registration
Statement and the Prospectus, any material adverse change in the financial
condition, results of operations, business affairs or prospects of the Company,
the MHC, the Bank and the Subsidiaries, considered as one enterprise, whether or
not arising in the ordinary course of business consistent with past practice,
and the Agent shall have received a certificate of the President and Chief
Executive Officer of the Company, of the MHC and of the Bank and the chief
financial or chief accounting officer of the Company, of the MHC and of the
Bank, dated as of Closing Time, to the effect that (i) there has been no such
material adverse change, (ii) there shall have been no material transaction
entered into by the Company, the MHC or the Bank from the latest date as of
which the financial condition of the Company, the MHC or the Bank, as set forth
in the Registration Statement and the Prospectus other than transactions
referred to or contemplated therein and transactions in the ordinary course of
business consistent with past practice (iii) neither the Company, the MHC nor
the Bank shall have received from the OTS or the FDIC any order or direction
(oral or written) to make any material change in the method of conducting its
business with which it has not complied (which order or direction, if any, shall
have been disclosed in writing to the Agent) or which materially and adversely
would affect the business, financial condition, results of operations or
prospects of the Company, the MHC or the Bank,
29
considered as one enterprise, (iv) the representations and warranties in Section
1 hereof are true and correct with the same force and effect as though expressly
made at and as of the Closing Time, (v) each of the Company, the MHC and the
Bank has complied with all agreements and satisfied all conditions on its 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 Subscription and Community
Offering or Syndicated Community Offering 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 applicable Conversion Regulations nor has any person sought to obtain
regulatory or judicial review of the action of the OTS in approving the Plan.
(e) At the Closing Time, the Agent shall have received a certificate of the
Chief Executive Officer and President of the Company, of the MHC and of the Bank
and the Chief Financial Officer of the Company, of the MHC and of the Bank,
dated as of Closing Time, to the effect that (i) they have reviewed the contents
of the Registration Statement and the Prospectus; (ii) based on each of their
knowledge, the Registration Statement and the Prospectus do not contain any
untrue statement of a material fact or omit to state a material fact necessary
in order to make the statements made therein, in light of the circumstances
under which such statements were made, not misleading; and (iii) based on each
of their knowledge, the financial statements and other financial information
included in the Registration Statement and the Prospectus fairly present the
financial condition and results of operations of the Company and the
Subsidiaries as of and for the dates and periods covered by the Registration
Statement and the Prospectus.
(f) At the time of the execution of this Agreement, the Agent shall have
received from ▇▇▇▇▇ ▇▇▇▇▇▇ Company LLP a letter dated such date, in form and
substance satisfactory to the Agent, to the effect that: (i) they are an
independent registered public accounting firm with respect to the Company, the
MHC, the Bank and the Subsidiaries within the meaning of the Code of Ethics of
the AICPA, the Securities Act and the Securities Act Regulations, they are
registered with the PCAOB, and they are not in violation of the auditor
independence requirements of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act; (ii) it is their opinion
that the consolidated financial statements and supporting schedules included in
the Registration Statement and covered by their opinions therein comply as to
form in all material respects with the applicable accounting requirements of the
Securities Act and the Securities Act Regulations; (iii) based upon limited
procedures as agreed upon by the Agent and ▇▇▇▇▇ ▇▇▇▇▇▇ Company LLP set forth in
detail in such letter, nothing has come to their attention which causes them to
believe that (A) the unaudited consolidated financial statements and supporting
schedules of the Company included in the Registration Statement do not comply as
to form in all material respects with the applicable accounting requirements of
the Securities Act, the Securities Act Regulations and the Conversion
Regulations or are not presented in conformity with generally accepted
accounting principles applied on a basis substantially consistent with that of
the audited consolidated 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 Financial and Other Data" in the
Registration Statement and Prospectus do not agree with the amounts set forth in
unaudited consolidated financial statements as of and for the dates and periods
presented under such captions
30
or such amounts 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 (5) business days prior to the date of this Agreement, there has
been any increase in the consolidated borrowings of the Company or any decrease
in consolidated total assets, the allowance for loan losses, total deposits or
stockholders' equity of the Company, in each case as compared with the amounts
shown in the consolidated statements of financial conditions included in the
Registration Statement or, (D) during the period from March 31, 2006 to the last
day of the month immediately preceding the date of this Agreement, there were
any decreases, as compared with the corresponding period in the preceding fiscal
year, in total interest and dividend income, net interest income, net interest
income after provision for loan losses, income before income tax expense or net
income of the Company, except in all instances for increases or decreases which
the Registration Statement and the Prospectus disclose have occurred or may
occur; and (iv) in addition to the examination referred to in their opinions and
the limited procedures referred to in clause (iii) above, they have carried out
certain specified procedures, not constituting an audit, with respect to certain
amounts, percentages and financial information which are included in the
Registration Statement and Prospectus and which are specified by the Agent, and
have found such amounts, percentages and financial information to be in
agreement with the relevant accounting, financial and other records of the
Company, the MHC and the Bank identified in such letter.
(g) At Closing Time, the Agent shall have received from ▇▇▇▇▇ ▇▇▇▇▇▇
Company LLP a letter, dated as of Closing Time, to the effect that they reaffirm
the statements made in the letter furnished pursuant to subsection (f) of this
Section, except that the specified date referred to shall be a date not more
than five (5) business days prior to Closing Time.
(h) At Closing Time, the Securities and the Foundation Shares shall have
been approved for quotation on the Nasdaq National Market upon notice of
issuance.
(i) At Closing Time, the Agent shall have received a letter from the
Appraiser, dated as of the Closing Time, confirming its independent appraisal.
(j) At Closing Time, counsel for the Agent shall have been furnished with
such documents and opinions as they may require for the purpose of enabling them
to pass upon the issuance and sale of the Securities and the Foundation Shares
as herein contemplated and related proceedings, or in order to evidence the
accuracy of any of the representations or warranties, or the fulfillment of any
of the conditions, herein contained; and all proceedings taken by the Company in
connection with the issuance and sale of the Securities and the Foundation
Shares as herein contemplated shall be satisfactory in form and substance to the
Agent and counsel for the Agent.
(k) At any time prior to Closing Time, (i) there shall not have occurred
any material adverse change in the financial markets in the United States or
elsewhere or any outbreak of hostilities or escalation thereof or other calamity
or crisis the effect of which, in the judgment of the Agent, is 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, the New York
Stock Exchange or the Nasdaq Stock Market shall not have been suspended, and
minimum or maximum prices for trading shall not have been
31
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, New Jersey or New York authorities.
SECTION 6. INDEMNIFICATION.
(a) The Company, the MHC 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 Securities Act or Section 20 of
the Exchange Act, and its respective partners, directors, officers, employees
and agents as follows:
(i) from and against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, related to or arising out of the Offerings
(including the establishment of the Foundation and the contribution of the
Foundation Shares thereto by the Company) or any action taken by the Agent
where acting as agent of the Company, the MHC 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;
(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, the MHC 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 or defending against any litigation, or any investigation,
proceeding or inquiry by any governmental agency or body, commenced or
threatened, or any claim pending or threatened whatsoever described in
clauses (i) or (ii) above, to the extent that any such expense is not paid
under clause (i), (ii) or (iii) above;
provided, however, that the indemnification provided for in this paragraph (a)
shall not apply to any loss, liability, claim, damage or expense to the extent
arising out of any untrue statement or alleged
32
untrue statement of a material fact contained in the Prospectus (or any
amendment or supplement thereto) or the omission or alleged omission therefrom
of a material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading which was
made in reliance upon and in conformity with the Agent Information.
(b) The Agent agrees to indemnify and hold harmless the Company, the MHC
and the Bank, their directors, 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 Securities Act or Section 20 of the Exchange
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
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, the MHC 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 MHC and its members, the Bank, the Company's, the MHC's or the
Bank'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
if 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 the Agent, any person, if any, who controls
the Agent within the meaning of Section 15 of the Securities Act or Section 20
of the Exchange Act or any of its partners, directors, officers, employees or
agents is requested or required to appear as a witness or otherwise gives
testimony in any action, proceeding, investigation or inquiry brought by or on
behalf of or against the Company, the MHC, the Bank, the Agent or any of its
respective affiliates or any participant in the transactions contemplated hereby
in which the Agent or such person or agent is not named as a defendant, the
Company, the MHC and the Bank, jointly and severally, agree to reimburse the
Agent and its partners, directors, officers, employees or agents for all
reasonable and necessary out-of-pocket expenses incurred by them in connection
with preparing or appearing as a witness or otherwise giving testimony and to
compensate the Agent and its partners, directors, officers, employees or agents
in an amount to be mutually agreed upon.
33
SECTION 7. CONTRIBUTION. In order to provide for just and equitable
contribution in circumstances in which the indemnity agreement provided for in
Section 6 hereof is for any reason held to be unenforceable by the indemnified
parties although applicable in accordance with its terms, the Company, the MHC,
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, the MHC or the Bank and the Agent, as
incurred, in such proportions (i) that the Agent is responsible for that portion
represented by the percentage that the maximum aggregate marketing fees
appearing on the cover page of the Prospectus bears to the maximum aggregate
gross proceeds appearing thereon and the Company, the MHC and the Bank are
jointly and severally responsible for the balance or (ii) if, but only if, the
allocation provided for in clause (i) is for any reason held unenforceable, in
such proportion as is appropriate to reflect not only the relative benefits to
the Company, the MHC 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, the MHC 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
Securities 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
Securities Act or Section 20 of the Exchange Act shall have the same rights to
contribution as the Agent, and each director of the Company, the MHC and the
Bank, each officer of the Company who signed the Registration Statement, and
each person, if any, who controls the Company, the MHC or the Bank within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act
shall have the same rights to contribution as the Company, the MHC and the Bank.
Notwithstanding anything to the contrary set forth herein, to the extent
permitted by applicable law, in no event shall the Agent be required to
contribute an aggregate amount in excess of the aggregate marketing fees to
which the Agent is entitled and actually paid pursuant to this Agreement.
SECTION 8. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE DELIVERY.
All representations, warranties and agreements contained in this Agreement, or
contained in certificates of officers of the Company, the MHC or the Bank
submitted pursuant hereto, shall remain operative and in full force and effect,
regardless of any investigation made by or on behalf of the Agent or any
controlling person, or by or on behalf of the Company, and shall survive
delivery of the Securities and the issuance of the Foundation Shares.
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, business affairs or prospects of the Company,
the MHC or the Bank, considered as one enterprise, whether or not arising in the
ordinary course of business, (ii) if there has occurred any material adverse
change in the financial markets in the United States or elsewhere or any
outbreak of hostilities or escalation thereof or other calamity or crisis the
effect of which, in the judgment of the Agent, is so material and adverse as to
make it impracticable to market the Securities or to enforce contracts,
including subscriptions or orders, for the sale of the Securities, (iii) if
trading generally on the Nasdaq National Market, the American Stock Exchange
34
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, New Jersey 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 changes in the
condition or prospects of the Company, the MHC 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 pro forma market
value of the Common Stock established by the Appraiser is not reasonable or
equitable under then prevailing market conditions, or (vii) if the Offerings are
not consummated on or prior to September 30, 2006.
(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 Sections 2 and 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 ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇, attention of General Counsel, with a copy to ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ &
▇▇▇▇▇▇▇ LLP, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇, attention of
▇▇▇▇ ▇. ▇▇▇▇▇▇▇; notices to the Company, the MHC and the Bank shall be directed
to any of them at Roma Bank, ▇▇▇▇ ▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇,
attention of ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, with a copy to ▇▇▇▇▇▇▇ Spidi & ▇▇▇▇▇, P.C., ▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇, attention of
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇.
SECTION 11. PARTIES. This Agreement shall inure to the benefit of and be
binding upon the Agent, the Company, the MHC and the Bank and their respective
successors. Nothing expressed or mentioned in this Agreement is intended or
shall be construed to give any person, firm or corporation, other than the
Agent, the Company, the MHC and the Bank and their respective successors and the
controlling persons and the partners, officers and directors referred to in
Sections 6 and 7 and their heirs and legal representatives, any legal or
equitable right, remedy or claim under or in respect of this Agreement or any
provision herein or therein contained. This Agreement and all conditions and
provisions hereof and thereof are intended to be for the sole and exclusive
benefit of the Agent, the Company, the MHC and the Bank and their respective
successors, and said controlling persons, partners, officers and directors and
their heirs, partners, legal representatives, and for the benefit of no other
person, firm or corporation.
SECTION 12. ENTIRE AGREEMENT; AMENDMENT. This Agreement represents the
entire understanding of the parties hereto with reference to the transactions
contemplated hereby and supersedes any and all other oral or written agreements
heretofore made, except for the engagement letter dated January 13, 2006, by and
between the Agent and the Bank, relating to the Agent's providing conversion
agent services to the Company and the Bank. No waiver, amendment or other Stock
Issuance Application of this Agreement shall be effective unless in writing and
signed by the parties hereto.
35
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 Agreement which is
invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be
ineffective to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable the remaining terms and provisions of this
Agreement or affecting 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.
[The next page is the signature page]
36
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 on the one hand, and the Company, the MHC and the Bank on the other in
accordance with its terms.
Very truly yours,
ROMA FINANCIAL CORPORATION
By: ________________________________
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
President and Chief Executive Officer
ROMA BANK
By: ________________________________
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
President and Chief Executive Officer
ROMA FINANCIAL CORPORATION, MHC
By: ________________________________
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
President and Chief Executive Officer
CONFIRMED AND ACCEPTED,
as of the date first above written:
SANDLER ▇'▇▇▇▇▇ + PARTNERS, L.P.
By: Sandler ▇'▇▇▇▇▇ + Partners Corp.,
the sole general partner
By: _______________________________
Name:
An Officer of the Corporation
