OSAGE FEDERAL FINANCIAL, INC.
(a federal stock corporation in formation)
596,514 Shares
COMMON SHARES
($.01 Par Value)
Subscription Price $10.00 Per Share
AGENCY AGREEMENT
December __, 2003
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Ladies and Gentlemen:
Osage Federal MHC, a federal mutual holding company (the "MHC"), Osage
Federal Financial, Inc., a federal corporation (the "Company"), and Osage
Federal Savings and Loan Association, a federally chartered savings and loan
association located in Pawhuska, Oklahoma (the "Bank") (references to the "Bank"
include the Bank in the mutual or stock form, as indicated by the context), with
its deposit accounts insured by the Savings Association Insurance Fund ("SAIF")
administered by the Federal Deposit Insurance Corporation ("FDIC"), hereby
confirm their agreement with ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, Inc. ("the Agent"). As of
the date hereof, each of the MHC and the Company are in formation. Accordingly,
the Bank hereby agrees to cause the MHC and the Company to duly ratify, sign and
deliver this Agreement upon completion of their formation at or prior to the
Closing Date as follows:
Section 1. The Offering. The Bank, in accordance with its plan of
reorganization adopted by its Board of Directors (the "Plan"), intends to
reorganize from a federally-chartered mutual savings and loan association into
the mutual holding company structure (the "Reorganization"), and issue all of
its issued and outstanding capital stock to the Company. The Reorganization will
be accomplished pursuant to federal law and the rules and regulations of the
Office of Thrift Supervision (the "OTS"). Pursuant to the Plan, the Company will
offer and sell up to 596,514 shares of its common stock, $.01 par value per
share (the "Shares" or "Common Shares"), in a subscription offering (the
"Subscription Offering") to (1) depositors of the Bank with Qualifying Deposits
(as defined in the Plan) as of August 31, 2002 ("Eligible Account Holders"), (2)
the Osage Federal Savings Bank Employee Stock Ownership Plan (the "ESOP"), (3)
depositors of the Bank with Qualifying Deposits as of December 31, 2003
("Supplemental Eligible Account Holders") and (4) the Bank*s Other Members as
defined in the Plan. Subject to the prior subscription rights of the
above-listed parties, the Company may offer for sale in a community offering
(the "Community Offering" and when referred to together with or
subsequent to the Subscription Offering, the "Subscription and Community
Offering") conducted concurrently with the Subscription Offering, the Shares not
subscribed for or ordered in the Subscription Offering to members of the general
public to whom a copy of the Prospectus (as hereinafter defined) is delivered
with a preference given first to people who are residents of Osage and
Washington Counties, Oklahoma. It is anticipated that shares not subscribed for
in the Subscription and Community Offering may be offered to certain members of
the general public on a best efforts basis through a selected dealers agreement
(the "Syndicated Community Offering") (the Subscription Offering, Community
Offering and Syndicated Community Offering are collectively referred to as the
"Offering"). It is acknowledged that the purchase of Shares in the Offering is
subject to the maximum and minimum purchase limitations as described in the Plan
and that the Company and the Bank may reject, in whole or in part, any orders
received in the Community Offering or Syndicated Community Offering.
Collectively, these transactions are referred to herein as the "Reorganization."
The Common Shares offered for sale in the Offering will represent a minority
ownership interest of 30% of the Company*s total outstanding shares of Common
Shares.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-1 (File No. 333-________) (the
"Registration Statement") containing a prospectus relating to the Offering for
the registration of the Shares under the Securities Act of 1933 (the "1933
Act"), and has filed such amendments thereof and such amended prospectuses as
may have been required to the date hereof. The term "Registration Statement"
shall include any documents incorporated by reference therein and all financial
schedules and exhibits thereto, as amended, including post-effective amendments.
The prospectus, as amended, on file with the Commission at the time the
Registration Statement initially became effective is hereinafter called the
"Prospectus," except that if any Prospectus is filed by the Company pursuant to
Rule 424(b) or (c) of the rules and regulations of the Commission under the 1933
Act (the "1933 Act Regulations") differing from the prospectus on file at the
time the Registration Statement initially becomes effective, the term
"Prospectus" shall refer to the prospectus filed pursuant to Rule 424(b) or (c)
from and after the time said prospectus is filed with the Commission.
In accordance with Title 12, Part 575 of the Code of Federal
Regulations (the "Reorganization Regulations"), the Bank has filed with the OTS
a Form MHC-1 Notice of Mutual Holding Company Reorganization and a Form MHC-2
Application for Approval of a Minority Stock Issuance (by a Subsidiary of a
Mutual Holding Company (collectively, the "MHC-1/MHC-2 Application"), including
the Prospectus and the Reorganization Valuation Appraisal Report prepared by
FinPro, Inc. (the "Appraisal") and has filed such amendments thereto as may have
been required by the OTS. The MHC-l/MHC-2 Application has been approved by the
OTS and the related Prospectus has been authorized for use by the OTS. In
addition, the Company has filed with the OTS its application on Form H-(e)l (the
"Holding Company Application") to become a registered savings and loan holding
company under the Home Owners* Loan Act, as amended ("HOLA") and the regulations
promulgated thereunder (the "Control Act Regulations").
Section 2. Retention of Agent; Compensation; Sale and Delivery of the
Shares. Subject to the terms and conditions herein set forth, the Company and
the Bank hereby appoint the Agent as their exclusive financial advisor and
marketing agent (i) to utilize its best efforts to
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solicit subscriptions for Common Shares and to advise and assist the Company and
the Bank with respect to the Company*s sale of the Shares in the Offering and
(ii) to participate in the Offering in the areas of market making, research
coverage and in syndicate formation (if necessary).
On the basis of the representations, warranties, and agreements herein
contained, but subject to the terms and conditions herein set forth, the Agent
accepts such appointment and agrees to consult with and advise the Company and
the Bank as to the matters set forth in the letter agreement, dated December 15,
2003, between the Bank and the Agent (a copy of which is attached hereto as
Exhibit A). It is acknowledged by the Company and the Bank that the Agent shall
not be required to purchase any Shares or be obligated to take any action which
is inconsistent with all applicable laws, regulations, decisions or orders.
The obligations of the Agent pursuant to this Agreement (other than
those set forth in Section 2(a) and (c) hereof) shall terminate upon the
completion or termination or abandonment of the Plan by the Company or upon
termination of the Offering, but in no event later than 45 days after the
completion of the Subscription Offering (the "End Date"). All fees or expenses
due to the Agent but unpaid will be payable to the Agent in next day funds at
the earlier of the Closing Date (as hereinafter defined) or the End Date. In the
event the Offering is extended beyond the End Date, the Company, the Bank and
the Agent may agree to renew this Agreement under mutually acceptable terms.
In the event the Company is unable to sell a minimum of 383,393 Shares
within the period herein provided, this Agreement shall terminate and the
Company shall refund to any persons who have subscribed for any of the Shares
the full amount which it may have received from them plus accrued interest, as
set forth in the Prospectus; and none of the parties to this Agreement shall
have any obligation to the other parties hereunder, except as set forth in this
Section 2 and in Sections 6, 8 and 9 hereof. In the event the Offering is
terminated for any reason not attributable to the action or inaction of the
Agent, the Agent shall be paid the fees due to the date of such termination
pursuant to subparagraphs (a) and (d) below.
If all conditions precedent to the consummation of the Reorganization,
including, without limitation, the sale of all Shares required by the Plan to be
sold, are satisfied, the Company agrees to issue, or have issued, the Shares
sold in the Offering and to release for delivery certificates for such Shares on
the Closing Date (as hereinafter defined) against payment to the Company by any
means authorized by the Plan; provided, however, that no funds shall be released
to the Company until the conditions specified in Section 7 hereof shall have
been complied with to the reasonable satisfaction of the Agent and its counsel.
The release of Shares against payment therefor shall be made on a date and at a
place acceptable to the Company, the Bank and the Agent. Certificates for shares
shall be delivered directly to the purchasers in accordance with their
directions. The date upon which the Company shall release or deliver the Shares
sold in the Offering, in accordance with the terms herein, is called the
"Closing Date."
The Agent shall receive the following compensation for its services
hereunder:
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(a) A management fee of $30,000 payable in four consecutive monthly
installments of $7,500 commencing with the adoption of the Plan. This
fee shall be due as it is earned and shall be non-refundable.
(b) A success fee upon completion of the Offering of 0.90% of the
aggregate purchase price of the Common Shares sold in the Subscription
Offering and Community Offering.
(c) If any of the Common Shares remain available after the
Subscription Offering, at the request of the Bank, the Agent will seek
to form a syndicate of registered broker-dealers ("Selected Dealers")
to assist in the sale of such Common Shares on a best efforts basis,
subject to the terms and conditions set forth in the selected dealers
agreement. The Agent will endeavor to distribute the Common Shares
among the Selected Dealers in a fashion which best meets the
distribution objectives of the Bank and the Plan. The Agent will be
paid a fee not to exceed 5.5% of the aggregate Purchase Price of the
Shares sold by the Selected Dealers. The Agent will pass onto the
Selected Dealers who assist in the Syndicated Community Offering an
amount competitive with gross underwriting discounts charged at such
time for comparable amounts of stock sold at a comparable price per
share in a similar market environment. Fees with respect to purchases
effected with the assistance of Selected Dealers other than the Agent
shall be transmitted by the Agent to such Selected Dealers. The
decision to utilize Selected Dealers will be made by the Bank upon
consultation with the Agent.
(d) The Bank and Company shall reimburse the Agent for reasonable
out-of-pocket expenses, including costs of travel, meals and lodging,
photocopying, telephone, facsimile and couriers up to $42,000,
including the fees of its counsel (which do not include legal fees to
complete the qualification of the Common Shares under the various
state securities "Blue Sky" laws). The Bank will bear the expenses of
the Offering customarily borne by issuers including, without
limitation, regulatory filing fees, SEC, "Blue Sky," and NASD filing
and registration fees; the fees of the Bank*s accountants, attorneys,
appraiser, transfer agent and registrar, printing, mailing and
marketing expenses associated with the reorganization; and the fees
set forth under this Section 2. The Company or the Bank will reimburse
the Agent for any such expenses incurred by the Agent on their behalf.
Full payment of Agent*s actual and accountable expenses, advisory fees
and compensation shall be made in next day funds on the earlier of the Closing
Date or a determination by the Bank to terminate or abandon the Plan.
Section 3. Sale and Delivery of Shares. If all conditions precedent to
the consummation of the Reorganization, including, without limitation, the sale
of all Shares required by the Plan to be sold, are satisfied, the Company agrees
to issue, or have issued, the Shares sold in the Offering and to release for
delivery certificates for such Shares on the Closing Date (as hereinafter
defined) against payment to the Company by any means authorized by the Plan;
provided, however, that no funds shall be released to the Company until the
conditions specified in Section 7 hereof shall have been complied with to the
reasonable satisfaction of the Agent and its counsel. The release of Shares
against payment therefor shall be made on a date and at a
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place acceptable to the MHC, the Company and the Bank and the Agent.
Certificates for shares shall be delivered directly to the purchasers in
accordance with their directions. The date upon which the Company shall release
or deliver the Shares sold in the Offering, in accordance with the terms herein,
is called the "Closing Date."
Section 4. Representations and Warranties of the MHC, the Company and
the Bank. The MHC, the Company and the Bank jointly and severally represent and
warrant to and agree with the Agent as follows:
(a) The Registration Statement which was prepared by the Company and
the Bank and filed with the Commission 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 Bank and the MHC, threatened by the Commission. At
the time the Registration Statement, including the Prospectus
contained therein (including any amendment or supplement), became
effective and at the closing time, the Registration Statement complied
and will comply in all material respects with the requirements of the
1933 Act and the 1933 Act Regulations and the Registration Statement,
including the Prospectus contained therein (including any amendment or
supplement thereto), and any information regarding the Company or the
Bank contained in Sales Information (as such term is defined in
Section 8 hereof) authorized by the Company or the Bank for use in
connection with the Offering, did not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, and at the
time any Rule 424(b) or (c) Prospectus is filed with the Commission
and at the Closing Date referred to in Section 2, the Prospectus
(including any amendment or supplement thereto) and any information
regarding the Company or the Bank contained in Sales Information (as
such term is defined in Section 8 hereof) authorized by the Company or
the Bank for use in connection with the Offering will contain all
statements that are required to be stated therein in accordance with
the 1933 Act and the 1933 Act Regulations and will not contain an
untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading; provided,
however, that the representations and warranties in this Section 4(a)
shall not apply to statements or omissions made in reliance upon and
in conformity with written information furnished to the Company or the
Bank by the Agent or its counsel expressly regarding the Agent for use
in the Prospectus under the caption "The Reorganization--Marketing and
Underwriting Arrangements" or statements in or omissions from any
Sales Information or information filed pursuant to state securities or
blue sky laws or regulations regarding the Agent.
(b) The MHC-l/MHC-2 Application which was prepared by the Company and
the Bank and filed with the OTS has been approved by the OTS and the
related Prospectus and proxy statement to be delivered to members of
the Bank (the "Proxy Statement") have been authorized for use by the
OTS and the MHC-1/MHC-2 Application is truthful. No order has been
issued by the OTS or the Federal Deposit Insurance Corporation (the
"FDIC") (hereinafter any reference to the FDIC shall include the SAIF)
preventing or suspending the use of the Prospectus, and no action by
or before any such government
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entity to revoke any approval, authorization or order of effectiveness
related to the Reorganization is, to the best knowledge of the Company
or the Bank, pending or threatened. At the time of the approval of the
MHC-1/MHC-2 Application, including the Prospectus and the Proxy
Statement (including any amendment or supplement thereto), by the OTS
and at all times subsequent thereto until the Closing Date, the
MHC-1/MHC-2 Application, including the Prospectus (including any
amendment or supplement thereto), will comply in all material respects
with the Reorganization Regulations, except to the extent waived in
writing by the OTS. The MHC-l/MHC-2 Application, including the
Prospectus and the Proxy Statement (including any amendment or
supplement thereto), does not include any untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading; provided,
however, that the representations and warranties in this Section 4(b)
shall not apply to statements or omissions made in reliance upon and
in conformity with written information furnished to the Company or the
Bank by the Agent or its counsel expressly regarding the Agent for use
in the Prospectus contained in the MHC-1/MHC-2 Application under the
caption "The Reorganization--Marketing and Underwriting Arrangements"
or statements in or omissions from any sales information or
information filed pursuant to state securities or blue sky laws or
regulations regarding the Agent.
(c) The Company has filed with the OTS the Company*s application for
approval of its acquisition of the Bank (the "Holding Company
Application") on Form H-(e)1 promulgated under the savings and loan
holding company provisions of the HOLA and the Control Act
Regulations, and the Holding Company Application is accurate and
truthful. The Company has received written notice from the OTS of its
approval of the acquisition of the Bank, such approval remains in full
force and effect and no order has been issued by the OTS suspending or
revoking such approval and no proceedings therefor have been initiated
or, to the knowledge of the Company, the Bank or the MHC, threatened
by the OTS. At the date of such approval, the Holding Company
Application complied in all material respects with the applicable
provisions of HOLA and the regulations promulgated thereunder.
(d) At the Closing Date, the Plan will have been adopted by the Boards
of Directors of the MHC, the Company and the Bank and approved by the
members of the Bank, and the offer and sale of the Shares will have
been conducted in all material respects in accordance with the Plan,
the Reorganization Regulations, and all other applicable laws,
regulations, decisions and orders, including all terms, conditions,
requirements and provisions precedent to the Reorganization imposed
upon the MHC, the Company or the Bank by the OTS, the Commission, or
any other regulatory authority and in the manner described in the
Prospectus. To the best knowledge of the MHC, the Company and the
Bank, no person has sought to obtain review of the final action of the
OTS in approving the Plan or in approving the Reorganization or the
Holding Company Application pursuant to the HOLA or any other statute
or regulation.
(e) The Bank has been organized and is a validly existing
federally-chartered savings and loan association in mutual form of
organization and upon the Reorganization will become a duly organized
and validly existing federally-chartered savings bank
6
association in permanent capital stock form of organization, in both
instances duly authorized to conduct its business and own its property
as described in the Registration Statement and the Prospectus; the
Bank has obtained all licenses, permits and other governmental
authorizations currently required for the conduct of its business,
except those that individually or in the aggregate would not
materially adversely affect the financial condition, results of
operations or business of the MHC, the Company and the Bank, taken as
a whole; all such licenses, permits and governmental authorizations
are in full force and effect, and the Bank is in compliance with all
material laws, rules, regulations and orders applicable to the
operation of its business, except where failure to be in compliance
would not materially adversely affect the financial condition, results
of operations or business of the MHC, the Company and the Bank, taken
as a whole; the Bank is duly qualified as a foreign corporation to
transact business and is in good standing in each jurisdiction in
which its ownership of property or leasing of property or the conduct
of its business requires such qualification, unless the failure to be
so qualified in one or more of such jurisdictions would not have a
material adverse effect on the financial condition, results of
operations or business of the Bank. The Bank does not own equity
securities or any equity interest in any other business enterprise
except as described in the Prospectus or as would not be material to
the operations of the Bank. Upon completion of the sale by the Company
of the Shares contemplated by the Prospectus, (i) all of the
authorized and outstanding capital stock of the Bank will be owned by
the Company and (ii) the Company will have no direct subsidiaries
other than the Bank. The Reorganization will be effected in all
material respects in accordance with all applicable statutes,
regulations, decisions and orders; and, except with respect to the
filing of certain post-sale, post-Reorganization reports, and
documents in compliance with the 1933 Act Regulations, the
Reorganization Regulations or letters of approval at the time of the
Closing all terms, conditions, requirements and provisions with
respect to the Reorganization imposed by the Commission, the OTS and
the FDIC, if any, will have been complied with by the Company and the
Bank in all material respects or appropriate waivers will have been
obtained and all material notice and waiting periods will have been
satisfied, waived or elapsed.
(f) Upon completion of its formation, and in any event no later than
the Closing Date, the Company will be duly incorporated and validly
existing as a corporation under the laws of the United States of
America with 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 at the Closing Date the
Company will be qualified to do business as a foreign corporation in
each jurisdiction in which the conduct of its business requires such
qualification, except where the failure to so qualify would not have a
material adverse effect on the financial condition, results of
operations or business of the Company. At the Closing Date the Company
will have obtained all licenses, permits and other governmental
authorizations currently required for the conduct of its business
except those that individually or in the aggregate would not
materially adversely affect the financial condition, results of
operations or business of the Company and the Bank, taken as a whole;
all such licenses, permits and governmental authorizations will be in
full force and effect, and the Company will be in all material
respects complying with all laws, rules, regulations and orders
applicable to the operation of its business.
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(g) Upon completion of its formation, and in any event no later than
the Closing Date, the MHC will be duly incorporated and validly
existing as a corporation under the laws of the United States of
America with 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 at the Closing Date the
MHC will be qualified to do business as a foreign corporation in each
jurisdiction in which the conduct of its business requires such
qualification, except where the failure to so qualify would not have a
material adverse effect on the financial condition, results of
operations or business of the Company and the Bank, taken as a whole.
The MHC will have obtained all licenses, permits and other
governmental authorizations currently required for the conduct of its
business except those that individually or in the aggregate would not
materially adversely affect the financial condition, results of
operations or business of the Company and the Bank, taken as a whole;
all such licenses, permits and governmental authorizations will be in
full force and effect, and the MHC will be in all material respects
complying with all laws, rules, regulations and orders applicable to
the operation of its business.
(h) The Bank is a member of the Federal Home Loan Bank of Topeka
("FHLB-Topeka"). The deposit accounts of the Bank are insured by the
FDIC up to the applicable limits, and no proceedings for the
termination or revocation of such insurance are pending or, to the
best knowledge of the MHC, the Company or the Bank, threatened. The
Bank is a "qualified thrift lender" within the meaning of 12 U.S.C.
ss.l467(a)(m). Upon consummation of the Reorganization, the
liquidation account for the benefit of Eligible Account Holders and
Supplemental Eligible Account Holders will be duly established in
accordance with the requirements of the Reorganization Regulations.
(i) The Bank, and upon their formation, the Company and the MHC, has
or will have, as the case may be good and marketable title to all real
property and good title to all other assets material to the business
of the Company and the Bank, taken as a whole, and to those properties
and assets described in the Registration Statement and Prospectus as
owned by them, free and clear of all liens, charges, encumbrances or
restrictions, except such as are described in the Registration
Statement and Prospectus, or are not material to the business of the
Company and the Bank, taken as a whole; and all of the leases and
subleases material to the business of the Company and the Bank, taken
as a whole, under which the MHC, the Company or the Bank hold
properties, including those described in the Registration Statement
and Prospectus, are in full force and effect.
(j) The Company and the Bank have received an opinion of their special
counsel, ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇, PC, with respect to the federal income
tax consequences of the Reorganization, and an opinion of BKD, LLP
with respect to the Oklahoma income tax consequences of the
Reorganization; all material aspects of such opinions are accurately
summarized in the Registration Statement and the Prospectus. The MHC,
the Company and the Bank represent and warrant that the facts upon
which such opinions are based are truthful, accurate and complete.
Neither the Bank nor the MHC will take any action inconsistent
therewith.
(k) The Bank has all such power, authority, authorizations, approvals
and orders as may be required to enter into this Agreement, to carry
out the provisions and conditions
8
hereof and to issue and sell the Shares to be sold by the Company as
provided herein and as described in the Prospectus, subject to
approval or confirmation by the OTS of the final appraisal of the
Bank. The execution, delivery and performance of this Agreement and
the consummation of the transactions herein contemplated have been
duly and validly authorized by all necessary corporate action on the
part of the Bank. This Agreement has been validly executed and
delivered by the Bank and is the valid, legal and binding agreement of
the Bank enforceable in accordance with its terms (except as the
enforceability thereof may be limited by bankruptcy, insolvency,
moratorium, reorganization or similar laws relating to or affecting
the enforcement of creditors* rights generally or the rights of
creditors of savings and loan holding companies, the accounts of whose
subsidiaries are insured by the FDIC, or by general equity principles,
regardless of whether such enforceability is considered in a
proceeding in equity or at law, and except to the extent, if any, that
the provisions of Sections 8 and 9 hereof may be unenforceable as
against public policy). Upon completion of their formation, and in any
event no later than the Closing Date, the MHC and the Company will
have all such power, authority, authorizations, approvals and orders
as may be required to enter into this Agreement, to carry out the
provisions and conditions hereof and to issue and sell the Shares to
be sold by the Company as provided herein and as described in the
Prospectus, subject to approval or confirmation by the OTS of the
final appraisal of the Bank. The execution, delivery and performance
of this Agreement and the consummation of the transactions herein
contemplated will have been duly and validly authorized by all
necessary corporate action on the part of the MHC and the Company.
This Agreement will have been validly executed and delivered by the
MHC and the Company and will be the valid, legal and binding agreement
of the MHC and the Company enforceable in accordance with its terms
(except as the enforceability thereof may be limited by bankruptcy,
insolvency, moratorium, reorganization or similar laws relating to or
affecting the enforcement of creditors* rights generally or the rights
of creditors of savings and loan holding companies, the accounts of
whose subsidiaries are insured by the FDIC, or by general equity
principles, regardless of whether such enforceability is considered in
a proceeding in equity or at law, and except to the extent, if any,
that the provisions of Sections 8 and 9 hereof may be unenforceable as
against public policy).
(l) Neither the Bank, the Company or the MHC is, or at the time of
their formation will be, in violation of any directive received from
the OTS, the FDIC, or any other agency to make any material change in
the method of conducting their businesses so as to comply in all
material respects with all applicable statutes and regulations
(including, without limitation, regulations, decisions, directives and
orders of the OTS and the FDIC) and, except as may be set forth in the
Registration Statement and the Prospectus, there is no suit or
proceeding or charge or action before or by any court, regulatory
authority or governmental agency or body, pending or, to the knowledge
of the MHC, the Company or the Bank, threatened, which might
materially and adversely affect the Reorganization, the performance of
this Agreement or the consummation of the transactions contemplated in
the Plan and as described in the Registration Statement and the
Prospectus or which might result in any material adverse change in the
financial condition, results of operations or business of the MHC, the
Company or the Bank, or which would materially affect their properties
and assets.
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(m) The financial statements, schedules and notes related thereto
which are included in the Prospectus fairly present the balance sheet,
income statement, statement of changes in equity capital and statement
of cash flows of the Bank at the respective dates indicated and for
the respective periods covered thereby and comply as to form in all
material respects with the applicable accounting requirements of Title
12 of the Code of Federal Regulations. Such financial statements,
schedules and notes related thereto have been prepared in accordance
with generally accepted accounting principles ("GAAP") consistently
applied through the periods involved, present fairly in all material
respects the information required to be stated therein and are
consistent with the most recent financial statements and other reports
filed by the Bank with the OTS, except that accounting principles
employed in such regulatory filings conform to the requirements of the
OTS and not necessarily to GAAP. 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 of the Bank
included in the Prospectus, and as to the pro forma adjustments, the
adjustments made therein have been properly applied on the basis
described therein.
(n) Since the respective dates as of which information is given in the
Registration Statement including the Prospectus: (i) there has not
been any material adverse change, financial or otherwise, in the
condition of the MHC, the Company or the Bank and its subsidiaries,
considered as one enterprise, or in the earnings, capital properties
or business of the MHC, the Company or the Bank, whether or not
arising in the ordinary course of business; (ii) there has not been
any material increase in the long-term debt of the Bank or in the
principal amount of the Bank*s assets which are classified by the Bank
as substandard, doubtful or loss or in loans past due 90 days or more
or real estate acquired by foreclosure, by deed-in-lieu of foreclosure
or deemed in-substance foreclosure or any material decrease in equity
capital or total assets of the Bank, nor has the MHC, the Company or
the Bank issued any securities (other than in connection with the
incorporation of the Company) or incurred any liability or obligation
for borrowing other than in the ordinary course of business; (iii)
there have not been any material transactions entered into by the MHC,
the Company or the Bank; (iv) there has not been any material adverse
change in the aggregate dollar amount of the Bank's deposits or its
net worth; (v) there has been no material adverse change in the MHC*s,
the Company*s or the Bank*s relationship with its insurance carriers,
including, without limitation, cancellation or other termination of
the MHC*s, the Company*s or the Bank*s fidelity bond or any other type
of insurance coverage; (vi) except as disclosed in the Prospectus,
there has been no material change in management of the MHC, the
Company or the Bank; (vii) neither the MHC, the Company nor the Bank
has sustained any material loss or interference with its respective
business or properties from fire, flood, windstorm, earthquake,
accident or other calamity, whether or not covered by insurance;
(viii) neither the MHC, the Company nor the Bank has defaulted in the
payment of principal or interest on any outstanding debt obligations;
(ix) the capitalization, liabilities, assets, properties and business
of the MHC, the Company and the Bank conform in all material respects
to the descriptions thereof contained in the Prospectus; and (x)
neither of the MHC, the Company and the Bank have any material
contingent liabilities, except as set forth in the Prospectus. All
documents made available to or delivered or to be made available to or
10
delivered by the Bank, the MHC, or the Company or their
representatives in connection with the issuance and sale of the
Shares, including records of account holders, depositors, borrowers
and other members of the Bank, or in connection with the Agent*s
exercise of due diligence, except for those documents which were
prepared by parties other than the Bank, the Company, the MHC or their
representatives, to the best knowledge of the Bank, the MHC and the
Company, were on the dates on which they were delivered, or will be on
the dates on which they are to be delivered, true, complete and
correct in all material respects.
(o) Neither the MHC, the Company nor the Bank is or will be (i) in
violation of its charter or articles of incorporation, respectively,
or bylaws and/or constitution (and the Bank will not be in violation
of its charter, bylaws or constitution in capital stock form upon
consummation of the Reorganization), or (ii) in default in the
performance or observance of any material obligation, agreement,
covenant, or condition contained in any material contract, lease, loan
agreement, indenture or other instrument to which it is a party or by
which it or any of its property may be bound. The execution and
delivery of the Agreement and the consummation of the transactions
herein contemplated will not: (i) conflict with or constitute a breach
of, or default under, or result in the creation of any material lien,
charge or encumbrance (with the exception of the liquidation account
established in the Reorganization) upon any of the assets of the MHC,
the Company or the Bank pursuant to the Charter and Bylaws of the
Company and the MHC or the Articles of Incorporation, Constitution and
Bylaws of the Bank (in either mutual or capital stock form) or any
material contract, lease or other instrument in which the MHC, the
Company or the Bank has a beneficial interest, or any applicable law,
rule, regulation or order; (ii) violate any authorization, approval,
judgment, decree, order, statute, rule or regulation applicable to the
MHC, the Company or the Bank, except for such violations which would
not have a material adverse effect on the financial condition and
results of operations of the MHC, the Company and the Bank on a
consolidated basis; or (iii) with the exception of the liquidation
account established in the Reorganization, result in the creation of
any material lien, charge or encumbrance upon any property of the MHC,
the Company or the Bank.
(p) All documents made available to or delivered or to be made
available to or delivered by the MHC, the Company and the Bank or
their representatives in connection with the issuance and sale of the
Shares, including records of account holders, depositors and borrowers
of the Bank, or in connection with the Agent's exercise of due
diligence, except for those documents which were prepared by parties
other than the MHC, the Company and the Bank or their representatives,
to the best knowledge of the MHC, the Company and the Bank, were on
the dates on which they were delivered, or will be on the dates on
which they are to be delivered, true, complete and correct in all
material respects.
(q) No default exists, and no event has occurred which with notice or
lapse of time, or both, would constitute a default on the part of the
MHC, the Company or the Bank in the due performance and observance of
any term, covenant or condition of any indenture, mortgage, deed of
trust, note, bank loan or credit agreement or any other instrument or
agreement to which the MHC, the Company or the Bank is a party or by
which any of
11
them or any of their property is bound or affected, except such
defaults which would not have a material adverse affect on the
financial condition or results of operations of the MHC, the Company
and the Bank on a consolidated basis; such agreements are in full
force and effect; and no other party to any such agreements has
instituted or, to the best knowledge of the MHC, the Company and the
Bank, threatened any action or proceeding wherein the MHC, the Company
or the Bank would or might be alleged to be in default thereunder,
where such action or proceeding, if determined adversely to the MHC,
the Company or the Bank, would have a material adverse effect on the
financial condition, results of operations, or business of the MHC,
the Company or the Bank considered as one enterprise.
(r) Upon consummation of the Reorganization, the authorized, issued
and outstanding equity capital of the Company will be within the range
set forth in the Prospectus under the caption "Capitalization," and no
Shares have been or will be issued and outstanding prior to the
Closing Date; the Shares (including shares to be issued to the MHC)
will have been duly and validly 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
in the Prospectus, will be duly and validly issued, fully paid and
non-assessable, except for shares purchased by the ESOP with funds
borrowed from the Company to the extent payment therefor in cash has
not been received by the Company; except to the extent that
subscription rights and priorities pursuant thereto exist pursuant to
the Plan, no preemptive rights exist with respect to the Shares; and
the terms and provisions of the Shares will conform in all material
respects to the description thereof contained in the Registration
Statement and the Prospectus. To the best knowledge of the Company and
the Bank, upon the issuance of the Shares, good title to the Shares
will be transferred from the Company to the purchasers thereof against
payment therefor, subject to such claims as may be asserted against
the purchasers thereof by third-party claimants.
(s) No approval of any regulatory or supervisory or other public
authority is required in connection with the execution and delivery of
this Agreement or the issuance of the Shares, except for the approval
of the Commission and the OTS, and any necessary qualification,
notification, registration or exemption under the securities or blue
sky laws of the various states in which the Shares are to be offered,
and except as may be required under the rules and regulations of the
National Association of Securities Dealers, Inc. ("NASD").
(t) BKD, LLP, which has certified the audited financial statements and
schedules of the Bank included in the Prospectus, has advised the MHC,
the Company and the Bank in writing that they are, with respect to the
MHC, the Company and the Bank, independent public accountants within
the meaning of the Code of Professional Ethics of the American
Institute of Certified Public Accountants and applicable regulations
of the OTS.
(u) FinPro, Inc., which has prepared the Bank*s Valuation Appraisal
Report (as amended or supplemented, if so amended or supplemented)
(the "Appraisal"), has
12
advised the Company in writing that it is independent of the MHC, the
Company and the Bank within the meaning of the Reorganization
Regulations.
(v) The Company, the MHC and the Bank have timely filed all required
federal, state and local tax returns; the Company, the MHC and the
Bank have paid all taxes that have become due and payable in respect
of such returns, except where permitted to be extended, have made
adequate reserves for similar future tax liabilities and no deficiency
has been asserted with respect thereto by any taxing authority.
(w) The Bank and upon their formation, the Company and the MHC, is and
will be, as the case may be in compliance in all material respects
with the applicable financial record-keeping and reporting
requirements of the Currency and Foreign Transactions Reporting Act of
1970, as amended, and the regulations and rules thereunder.
(x) To the knowledge of the MHC, the Company and the Bank, neither the
MHC, the Company, the Bank nor employees of the MHC, the Company or
the Bank has made any payment of funds of the MHC, the Company or the
Bank as a loan for the purchase of the Shares 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.
(y) Prior to the Reorganization, neither the MHC, the Company nor the
Bank has: (i) issued any securities within the last 18 months (except
for notes to evidence bank loans and reverse repurchase agreements or
other liabilities in the ordinary course of business or as described
in the Prospectus); (ii) had any material dealings within the 12
months prior to the date hereof with any member of the NASD, or any
person related to or associated with such member, other than
discussions and meetings relating to the proposed Offering and routine
purchases and sales of United States government and agency and other
securities in the ordinary course of business; (iii) entered into a
financial or management consulting agreement except as contemplated
hereunder; and (iv) engaged any intermediary between the Agent and the
MHC, the Company and the Bank in connection with the offering of the
Shares, and no person is being compensated in any manner for such
service. Appropriate arrangements have been made for placing the funds
received from subscriptions for Shares in a special interest-bearing
account with the Bank until all Shares are sold and paid for, with
provision for refund to the purchasers in the event that the
Reorganization is not completed for whatever reason or for delivery to
the Company if all Shares are sold.
(z) The Company, the MHC and the Bank have not relied upon the Agent
or its legal counsel for any legal, tax or accounting advice in
connection with the Reorganization.
(aa) The records used by the MHC, the Company and the Bank to
determine the identity of Eligible Account Holders and Supplemental
Eligible Account Holders and Other Members are accurate and complete
in all material respects.
(bb) The Company and the MHC are not required to be registered under
the Investment Company Act of 1940, as amended.
13
(cc) Neither the Company, the Bank nor the MHC nor any properties
owned or operated by the Company, the Bank or the MHC, is in violation
of or liable under any Environmental Law (as defined below), except
for such violations or liabilities that, individually or in the
aggregate, would not have a material adverse effect on the financial
condition, results of operations or business of the Company, the Bank
and the MHC, taken as a whole. 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 Bank or the MHC, threatened
relating to the liability of any property owned or operated by the
Company, the Bank or the MHC under any Environmental Law. For purposes
of this subsection, the term "Environmental Law" means any federal,
state, local or foreign law, statute, ordinance, rule, regulation,
code, license, permit, authorization, approval, consent, order,
judgment, decree, injunction or agreement with any regulatory
authority relating to (i) the protection, preservation or restoration
of the environment (including, without limitation, air, water, vapor,
surface water, groundwater, drinking water supply, surface soil,
subsurface soil, plant and animal life or any other natural resource),
and/or (ii) the use, storage, recycling, treatment, generation,
transportation, processing, handling, labeling, production, release or
disposal of any substance presently listed, defined, designated or
classified as hazardous, toxic, radioactive or dangerous, or otherwise
regulated, whether by type or by quantity, including any material
containing any such substance as a component.
(dd) The Company has filed a registration statement for the Common
Shares under Section 12(g) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act Registration Statement").
(ee) The Company and its subsidiaries maintain 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
accountability for assets, (C) access to assets is permitted only in
accordance with management*s general or specific authorization, and
(D) the recorded accounts or assets is compared with the existing
assets at reasonable intervals and appropriate action is taken with
respect thereto. The books, records and accounts and systems of
internal accounting control of the Company and its subsidiaries comply
in all material respects with the requirements of Section 13(b)(2) of
the 1934 Act. The Company maintains "disclosure controls and
procedures" (as defined in Rule 13a- 14(c) under the Exchange Act)
that are effective in ensuring that the information it will be
required to disclose in the reports it files or submits under the
Exchange Act is accumulated and communicated to the Company*s
management (including the Company*s chief executive officer and chief
financial officer) in a timely manner and recorded, processed,
summarized and reported within the periods specified in the
Commission*s rules and forms.
(ff) All of the loans represented as assets of the Bank in the
Prospectus meet or are exempt from all requirements of federal, state
and local law pertaining to lending, including, without limitation,
truth in lending (including the requirements of Regulations
14
Z and 12 C.F.R. Part 226), real estate settlement procedures, consumer
credit protection, equal credit opportunity and all disclosure laws
applicable to such loans, except for violations which, if asserted,
would not have a material adverse effect on the financial condition,
results of operations, or business of the MHC, the Company or the Bank
considered as one enterprise.
(gg) The MHC, the Company and the Bank have taken all actions
necessary to obtain at Closing a Blue Sky Memorandum from ▇▇▇▇▇▇▇
Spidi & ▇▇▇▇▇, PC.
(hh) Any certificates signed by an officer of the MHC, the Company or
the Bank pursuant to the conditions of this Agreement and delivered to
the Agent or their counsel that refers to this Agreement shall be
deemed to be a representation and warranty by the MHC, the Company or
the Bank to the Agent as to the matters covered thereby with the same
effect as if such representation and warranty were set forth herein.
Section 5. Representations and Warranties of the Agent. The Agent
represents and warrants to the MHC, Company and the Bank as follows:
(a) The Agent is a corporation and is validly existing in good standing
under the laws of the State of New York with full power and authority
to provide the services to be furnished to the Bank, the MHC and the
Company hereunder.
(b) The execution and delivery of this Agreement and the consummation
of the transactions contemplated hereby have been duly and validly
authorized by all necessary action on the part of the Agent, and this
Agreement has been duly and validly executed and delivered by the Agent
and is a legal, valid and binding agreement of the Agent, enforceable
in accordance with its terms, except as the legality, validity, binding
nature and enforceability thereof may be limited by (i) bankruptcy,
insolvency, moratorium, reorganization, conservatorship, receivership
or other similar laws relating to or affecting the enforcement of
creditors' rights generally, and (ii) general equity principles
regardless of whether such enforceability is considered in a proceeding
in equity or at law.
(c) Each of the Agent and its employees, agents and representatives who
shall perform any of the services hereunder shall be duly authorized
and empowered, and shall have all licenses, approvals and permits
necessary to perform such services; and the Agent is a registered
selling agent in each of the jurisdictions in which the Shares are to
be offered by the Company in reliance upon the Agent as a registered
selling agent as set forth in the blue sky memorandum prepared with
respect to the Offering.
(d) The execution and delivery of this Agreement by the Agent, the
consummation of the transactions contemplated hereby and compliance
with the terms and provisions hereof will not conflict with, or result
in a breach of, any of the terms, provisions or conditions of, or
constitute a default (or an event which with notice or lapse of time or
both would constitute a default) under, the Articles of Incorporation
or Bylaws of the Agent or any agreement, indenture or other instrument
to which the Agent is a party or by which it or its property is bound.
15
(e) No approval of any regulatory or supervisory or other public
authority is required in connection with the Agent*s execution and
delivery of this Agreement, except as may have been received.
(f) There is no suit or proceeding or charge or action before or by any
court, regulatory authority or government agency or body or, to the
knowledge of the Agent, pending or threatened, which might materially
adversely affect the Agent*s performance under this Agreement.
Section 5.1 Covenants of the MHC, the Company and the Bank. The MHC,
-----------------------------------------------
the Company and the Bank hereby jointly and severally covenant with the Agent as
follows:
(a) The Company will not, at any time after the date the Registration
Statement is declared effective, file any amendment or supplement to
the Registration Statement without providing the Agent and its counsel
an opportunity to review such amendment or supplement or file any
amendment or supplement to which amendment or supplement the Agent or
its counsel shall reasonably object.
(b) The Bank will not, at any time after the MHC-l/MHC-2 Application
is approved by the OTS, file any amendment or supplement to such
MHC-l/MHC-2 Application without providing the Agent and its counsel an
opportunity to review such amendment or supplement or file any
amendment or supplement to which amendment or supplement the Agent or
its counsel shall reasonably object.
(c) The Company will not, at any time after the Holding Company
Application is approved by the OTS, file any amendment or supplement
to such Holding Company Application without providing the Agent and
its counsel an opportunity to review the non-confidential portions of
such amendment or supplement or file any amendment or supplement to
which amendment or supplement the Agent or its counsel shall
reasonably object.
(d) The Company, the MHC and the Bank will use their best efforts to
cause any post-effective amendment to the Registration Statement to be
declared effective by the Commission and any post-effective amendment
to the MHC-l/MHC-2 Application to be approved by the OTS and will
immediately upon receipt of any information concerning the events
listed below notify the Agent: (i) when the Registration Statement, as
amended, has become effective; (ii) when the MHC- 1 /MHC-2
Application, as amended, has been approved by the OTS; (iii) of any
comments from the Commission, the OTS or any other governmental entity
with respect to the Reorganization or the transactions contemplated by
this Agreement; (iv) of the request by the Commission, the OTS or any
other governmental entity for any amendment or supplement to the
Registration Statement, the MHC-1/MHC-2 Application or for additional
information; (v) of the issuance by the Commission, the OTS or any
other governmental entity of any order or other action suspending the
Offering or the use of the Registration Statement or the Prospectus or
any other filing of the Company or the Bank under the Reorganization
Regulations, or other applicable law, or the threat of any such
action; (vi) of the issuance by the Commission, the OTS or any
authority of any stop order suspending the
16
effectiveness of the Registration Statement or of the initiation or
threat of initiation or threat of any proceedings for that purpose; or
(vii) of the occurrence of any event mentioned in paragraph (h) below.
The Company, the MHC and the Bank will make every reasonable effort
(i) to prevent the issuance by the Commission, the OTS or any other
state authority of any such order and, (ii) if any such order shall at
any time be issued, to obtain the lifting thereof at the earliest
possible time.
(e) The Company, the MHC and the Bank will deliver to the Agent and to
its counsel two conformed copies of the Registration Statement, the
MHC-1/MHC-2 Application and the Holding Company Application, as
originally filed and of each amendment or supplement thereto,
including all exhibits. Further, the Company and the Bank will deliver
such additional copies of the foregoing documents to counsel to the
Agent as may be required for any NASD filings.
(f) The Company, the MHC and the Bank will furnish to the Agent, from
time to time during the period when the Prospectus (or any later
prospectus related to this offering) is required to be delivered under
the 1933 Act or the Securities Exchange Act of 1934 (the "1934 Act"),
such number of copies of such Prospectus (as amended or supplemented)
as the Agent may reasonably request for the purposes contemplated by
the 1933 Act, the 1933 Act Regulations, the 1934 Act or the rules and
regulations promulgated under the 1934 Act (the "1934 Act
Regulations"). The Company authorizes the Agent to use the Prospectus
(as amended or supplemented, if amended or supplemented) in any lawful
manner contemplated by the Plan in connection with the sale of the
Shares by the Agent.
(g) The Company, the MHC and the Bank will comply with any and all
material terms, conditions, requirements and provisions with respect
to the Reorganization and the transactions contemplated thereby
imposed by the Commission, the OTS or the Reorganization Regulations,
and by the 1933 Act, the 1933 Act Regulations, the 1934 Act and the
1934 Act Regulations to be complied with prior to or subsequent to the
Closing Date and when the Prospectus is required to be delivered, and
during such time period the Company and the Bank will comply, at their
own expense, with all material requirements imposed upon them by the
Commission, the OTS or the Reorganization Regulations, and by the 1933
Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act
Regulations, including, without limitation, Rule I Ob-5 under the 1934
Act, in each case as from time to time in force, so far as necessary
to permit the continuance of sales or dealing in the Common Shares
during such period in accordance with the provisions hereof and the
Prospectus.
(h) If, at any time during the period when the Prospectus relating to
the Shares is required to be delivered, any event relating to or
affecting the MHC, the Company or the Bank shall occur, as a result of
which it is necessary or appropriate, in the opinion of counsel for
the MHC, the Company and the Bank or in the reasonable opinion of the
Agent*s counsel, to amend or supplement the Registration Statement or
Prospectus in order to make the Registration Statement or Prospectus
not misleading in light of the circumstances existing at the time the
Prospectus is delivered to a purchaser, the MHC, the Company and the
Bank will immediately so inform the Agent and prepare and file, at
17
their own expense, with the Commission and the OTS, and furnish to the
Agent a reasonable number of copies, of an amendment or amendments of,
or a supplement or supplements to, the Registration Statement or
Prospectus (in form and substance reasonably satisfactory to the Agent
and its counsel after a reasonable time for review) which will amend
or supplement the Registration Statement or Prospectus so that as
amended or supplemented it will not contain an untrue statement of a
material fact or omit to state a material fact necessary in order to
make the statements therein, in light of the circumstances existing at
the time the Prospectus is delivered to a purchaser, not misleading.
For the purpose of this Agreement, the MHC, the Company and the Bank
each will timely furnish to the Agent such information with respect to
itself as the Agent may from time to time reasonably request.
(i) The Company, the MHC and the Bank will take all necessary actions
in cooperating with the Agent and furnish to whomever the Agent may
direct such information as may be required to qualify or register the
Shares for offering and sale by the Company or to exempt such Shares
from registration, or to exempt the Company as a broker-dealer and its
officers, directors and employees as broker-dealers or agents under
the applicable securities or blue sky laws of such jurisdictions in
which the Shares are required under the Reorganization Regulations to
be sold or as the Agent and the Company, the MHC and the Bank may
reasonably agree upon; provided, however, that the Company shall not
be obligated to file any general consent to service of process, to
qualify to do business in any jurisdiction in which it is not so
qualified, or to register its directors or officers as brokers,
dealers, salesmen or agents in any jurisdiction. In each jurisdiction
where any of the Shares shall have been qualified or registered as
above provided, the Company will make and file such statements and
reports in each fiscal period as are or may be required by the laws of
such jurisdiction.
(j) The Company and the Bank will not sell or issue, contract to sell
or otherwise dispose of, for a period of 90 days after the Closing
Date, without the Agent*s prior written consent, any of their Common
Shares, other than the Common Shares or other than in connection with
any plan or arrangement described in the Prospectus, including
existing stock benefit plans.
(k) The Company has registered its Common Shares under Section 12(g)
of the 1934 Act concurrently with the Offering and such registration
automatically became effective at the time the Registration Statement
was declared effective. The Company shall maintain the effectiveness
of such registration for not less than three years or such shorter
period as may be required by the OTS.
(l) During the period during which the Common Shares are registered
under the 1934 Act or for three years from the date hereof, whichever
period is greater, the Company will furnish to its shareholders as
soon as practicable after the end of each fiscal year an annual report
of the Company (including a consolidated balance sheet and statements
of consolidated income, shareholders* equity and cash flows of the
Company and its subsidiaries as at the end of and for such year,
certified by independent public accountants in accordance with
Regulation S-X under the 1933 Act and the 1934 Act).
18
(m) During the period of three years from the date hereof, the Company
will furnish to the Agent: (i) as soon as practicable after such
information is publicly available, a copy of each report of the
Company furnished to or filed with the Commission under the 1934 Act
or any national securities exchange or system on which any class of
securities of the Company is listed or quoted (including, but not
limited to, reports on Forms 10-K or 10-KSB, 10-Q or 10-QSB and 8-K
and all proxy statements and annual reports to stockholders), (ii) a
copy of each other non-confidential report of the Company mailed to
its shareholders or filed with the Commission, the OTS or any other
supervisory or regulatory authority or any national securities
exchange or system on which any class of securities of the Company is
listed or quoted, each press release and material news items and
additional documents and information with respect to the Company or
the Bank as the Agent may reasonably request; and (iii) from time to
time, such other nonconfidential information concerning the MHC, the
Company or the Bank as the Agent may reasonably request.
(n) The Company, the MHC and the Bank will use the net proceeds from
the sale of the Shares in the manner set forth in the Prospectus under
the caption "Use of Proceeds."
(o) Other than as permitted by the Reorganization Regulations, the
HOLA, the 1933 Act, the 1933 Act Regulations and the rules and
regulations and the laws of any state in which the Shares are
registered or qualified for sale or exempt from registration, neither
the Company nor the Bank will distribute any prospectus, offering
circular or other offering material in connection with the offer and
sale of the Shares.
(p) The Company will use its best efforts to maintain listing of the
Shares on the OTC Bulletin Board.
(q) The Bank will maintain appropriate arrangements for depositing all
funds received from persons mailing subscriptions for or orders to
purchase Shares in the Offering on an interest-bearing basis at the
rate described in the Prospectus until the Closing Date and
satisfaction of all conditions precedent to the release of the Bank*s
obligation to refund payments received from persons subscribing for or
ordering Shares in the Offering in accordance with the Plan and as
described in the Prospectus or until refunds of such funds have been
made to the persons entitled thereto or withdrawal authorizations
canceled in accordance with the Plan and as described in the
Prospectus. The Bank will maintain such records of all funds received
to permit the funds of each subscriber to be separately insured by the
FDIC (to the maximum extent allowable) and to enable the Bank to make
the appropriate refunds of such funds in the event that such refunds
are required to be made in accordance with the Plan and as described
in the Prospectus.
(r) The Company and the MHC will promptly take all necessary action to
register as savings and loan holding companies under the HOLA.
(s) The Company, the MHC and the Bank will take such actions and
furnish such information as are reasonably requested by the Agent in
order for the Agent to ensure compliance with the NASD*s
"Interpretation Relating to Free Riding and Withholding."
19
(t) Neither the Company, the MHC nor the Bank will amend the Plan of
Reorganization without notifying the Agent and the Agent*s counsel
prior thereto.
(u) The Company shall assist the Agent, if necessary, in connection
with the allocation of the Shares in the event of an oversubscription
and shall provide the Agent with any information necessary to assist
the Company in allocating the Shares in such event and such
information shall be accurate and reliable in all material respects.
(v) Prior to the Closing Date, the Company, the MHC and the Bank will
inform the Agent of any event or circumstances of which it is aware as
a result of which the Registration Statement and/or Prospectus, as
then amended or supplemented, would contain an untrue statement of a
material fact or omit to state a material fact necessary in order to
make the statements therein not misleading.
(w) The Company will not deliver the Shares until the MHC, the Company
and the Bank have satisfied or caused to be satisfied each condition
set forth in Section 7 hereof, unless such condition is waived in
writing by the Agent.
(x) Prior to the Closing Date, the Plan shall have been approved by
the voting members of the Bank in accordance with the Plan and the
Reorganization Regulations and the applicable provisions, if any, of
the Bank's charter and bylaws.
(y) The Company and the Bank shall notify the Agent when funds shall
have been received for the minimum number of Shares set forth in the
Prospectus.
(z) Subsequent to the date the Registration Statement is declared
effective by the Commission and prior to the Closing Date, except as
otherwise may be indicated or contemplated therein or set forth in an
amendment or supplement thereto, neither the MHC, the Company nor the
Bank will have: (i) issued any securities or incurred any liability or
obligation, direct or contingent, for borrowed money, except
borrowings from the same or similar sources indicated in the
Prospectus in the ordinary course of its business, or (ii) entered
into any transaction which is material in light of the business and
properties of the MHC, the Company and the Bank, taken as a whole.
(aa) The MHC, the Company and the Bank will take such actions and
furnish such information as are reasonably requested by the Agent in
order for the Agent to ensure compliance with the "Interpretation of
the Board of Governors of the NASD on Free Riding and Withholding."
(bb) Until the Closing Date, the MHC, the Company and the Bank will
conduct their businesses in compliance in all material respects with
all applicable federal and state laws, rules, regulations, decisions,
directives and orders, including all decisions, directives and orders
of the Commission, the FDIC and the OTS.
(cc) The MHC, the Company and the Bank shall comply with any and all
terms, conditions, requirements and provisions with respect to the
Reorganization and the transactions contemplated thereby imposed by
the OTS, the Reorganization Regulations, the Commission, the 1933 Act
and the 1933 Act Regulations, the 1934 Act and the 1934
20
Act Regulations to be complied with subsequent to the Closing Date.
The Company will comply with all provisions of all undertakings
contained in the Registration Statement.
(dd) The facts and representations provided to ▇▇▇▇▇▇▇ Spidi & ▇▇▇▇▇,
PC by the Bank and the Company and upon which ▇▇▇▇▇▇▇ Spidi & ▇▇▇▇▇,
PC will base its opinion under Section 7(c)( 1) are and will be
truthful, accurate and complete.
(ee) The Company shall comply with all applicable provisions of the
▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act.
Section 6. Payment of Expenses. Whether or not the Reorganization is
completed or the sale of the Shares by the Company is consummated, the Company
and the Bank jointly and severally agree to pay or reimburse the Agent for: (a)
all filing fees in connection with all filings related to the Offering with the
NASD; (b) any stock issue or transfer taxes which may be payable with respect to
the sale of the Shares; (c) subject to Section 2(d), all reasonable expenses of
the Reorganization, including but not limited to the Agent*s attorneys* fees and
expenses, blue sky fees, transfer agent, registrar and other agent charges, fees
relating to auditing and accounting or other advisors and costs of printing all
documents necessary in connection with the Reorganization. In the event the
Company is unable to sell the minimum number of shares necessary to complete the
offering or the Reorganization is terminated or otherwise abandoned, the
Company, the MHC and the Bank shall promptly reimburse the Agent in accordance
with Section 2(d) hereof.
In the event that the Agent incurs any expenses on behalf of the MHC,
the Company or the Bank, the MHC, the Company and the Bank will pay or reimburse
the Agent for such expenses regardless of whether the Reorganization is
successfully completed, and such reimbursements will not be included in the
expense limitations set forth in Section 2(d) hereof. The MHC, the Company and
the Bank acknowledge, however, that such limitations may be increased by the
mutual consent of the Bank and Agent in the event of delay in the Offering
requiring the Agent to utilize a Syndicated Community Offering, a delay as a
result of circumstances requiring material additional work by Agent or its
counsel or an update of the financial information in tabular form contained in
the Prospectus for a period later than ______________, 2004. Not later than two
days prior to the Closing Date, the Agent will provide the Bank with an
accounting of all reimbursable expenses to be paid at the Closing in next day
funds. In the event the Bank determines to abandon or terminate the Plan prior
to Closing, payment of such expenses shall be made in next day funds on the date
such determination is made.
Section 7. Conditions to the Agent*s Obligations. The obligations of
the Agent hereunder, as to the Shares to be delivered at the Closing Date, are
subject, to the extent not waived in writing by the Agent, to the condition that
alt representations and warranties of the Company, the MHC and the Bank herein
are, at and as of the commencement of the Offering and at and as of the Closing
Date, true and correct in all material respects, the condition that the Company,
the MHC and the Bank shall have performed all of their obligations hereunder to
be performed on or before such dates, and to the following further conditions:
21
(a) At the Closing Date, the Company, the MHC and the Bank shall have
conducted the Reorganization in all material respects in accordance
with the Plan, the Reorganization Regulations, the laws of Oklahoma,
and all other applicable laws, regulations, decisions and orders,
including all terms, conditions, requirements and provisions precedent
to the Reorganization imposed upon them by the OTS.
(b) The Registration Statement shall have been declared effective by
the Commission and the MHC-l/MHC-2 Application and the Holding Company
Application approved by the OTS not later than 5:30 p.m. on the date
of this Agreement, or with the Agent*s consent at a later time and
date; and at the Closing Date, no stop order suspending the
effectiveness of the Registration Statement shall have been issued
under the 1933 Act or proceedings therefore initiated or threatened by
the Commission or any state authority, and no order or other action
suspending the authorization of the Prospectus or the consummation of
the Reorganization shall have been issued or proceedings therefore
initiated or, to the Company*s or the Bank*s knowledge, threatened by
the Commission, the OTS, the FDIC or any other state authority.
(c) At the Closing Date, the Agent shall have received:
(1) The favorable opinion, dated as of the Closing Date and
addressed to the Agent and for its benefit, of ▇▇▇▇▇▇▇ ▇▇▇▇▇ &
▇▇▇▇▇, PC, special counsel for the Company, the MHC and the Bank,
in form and substance to the effect that:
(i) The Company and the MHC have been duly incorporated and
are validly existing as corporations under the laws of the
United States of America.
(ii) The Company and the MHC have corporate power and
authority to own, lease and operate their properties and to
conduct their business as described in the Registration
Statement and the Prospectus.
(iii) The Bank is a validly existing federally-chartered
savings and loan association in mutual form and immediately
following the completion of the Reorganization will be a
validly existing federally-chartered savings bank in stock
form in permanent capital stock form of organization, in
both instances duly authorized to conduct its business and
own its property as described in the Registration Statement
and the Prospectus. All of the outstanding capital stock of
the Bank upon completion of the Reorganization will be duly
authorized and, upon payment therefor, will be validly
issued, fully-paid and non-assessable and will be owned by
the Company, to such counsel*s Actual Knowledge, free and
clear of any liens, encumbrances, claims or other
restrictions.
(iv) The Bank is a member of the FHLB-Topeka. The deposit
accounts of the Bank are insured by the FDIC up to the
maximum amount allowed under law and to such counsel*s
Actual Knowledge, no proceedings for the termination or
revocation of such insurance are pending or threatened;
22
The Bank is a "qualified thrift lender" within the meaning
of 12 U.S.C. ss.l467(a)(m).
(v) Immediately following the consummation of the
Reorganization, the authorized, issued and outstanding
Common Shares of the Company will be within the range set
forth in the Prospectus under the caption "Capitalization,"
and no Common Shares have been issued prior to the Closing
Date; at the time of the Reorganization, the Common Shares
subscribed for pursuant to the Offering will have been duly
and validly 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 Prospectus, will be duly and validly issued and
fully paid and non-assessable, except for shares purchased
by the ESOP with funds borrowed from the Company to the
extent payment therefor in cash has not been received by the
Company; except to the extent that subscription rights and
priorities pursuant thereto exist pursuant to the Plan, the
issuance of the Shares is not subject to preemptive rights
and the terms and provisions of the Shares conform in all
material respects to the description thereof contained in
the Prospectus. Upon the issuance of the Shares, good title
to the Shares will be transferred from the Company to the
purchasers thereof against payment therefor, subject to such
claims as may be asserted against the purchasers thereof by
third-party claimants.
(vi) The Bank, the Company and the MHC have full corporate
power and authority to enter into this Agreement and to
consummate the transactions contemplated thereby and by the
Plan. The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby have
been duly and validly authorized by all necessary action on
the part of the Company, the MHC and the Bank; and this
Agreement is a valid and binding obligation of the Company,
the MHC and the Bank, enforceable against the Company, the
MHC and the Bank in accordance with its terms, except as the
enforceability thereof may be limited by (i) bankruptcy,
insolvency, reorganization, moratorium, conservatorship,
receivership or other similar laws now or hereafter in
effect relating to or affecting the enforcement of
creditors* rights generally or the rights of creditors of
federally chartered savings institutions, (ii) general
equitable principles, (iii) laws relating to the safety and
soundness of insured depository institutions, and (iv)
applicable law or public policy with respect to the
indemnification and/or contribution provisions contained
herein, including without limitation the provisions of
Sections 23A and 23B of the Federal Reserve Act and except
that no opinion need be expressed as to the effect or
availability of equitable remedies or injunctive relief
(regardless of whether such enforceability is considered in
a proceeding in equity or at law).
(vii) The MHC-1/MHC-2 Application has been approved by the
OTS and the Prospectus has been authorized for use by the
OTS. The OTS has
23
approved the Holding Company Application and the purchase by
the Company of all of the issued and outstanding capital
stock of the Bank and no action has been taken, and none is
pending or to such counsel*s Actual Knowledge threatened, to
revoke any such authorization or approval.
(viii) The Plan has been duly adopted by the required vote
of the directors of the Company, the MHC and the Bank, and
based upon the certificate of the inspectors of election, by
the members of the Bank.
(ix) Subject to the satisfaction of the conditions to the
OTS*s approval of the Reorganization, no further approval,
registration, authorization, consent or other order of any
federal regulatory agency is required in connection with the
execution and delivery of this Agreement, the issuance of
the Shares and the consummation of the Reorganization,
except as may be required under the securities or blue sky
laws of various jurisdictions (as to which no opinion need
be rendered) and except as may be required under the rules
and regulations of the NASD (as to which no opinion need be
rendered).
(x) The Registration Statement is effective under the 1933
Act and no stop order suspending the effectiveness has been
issued under the 1933 Act or proceedings therefor initiated
or, to such counsel*s Actual Knowledge, threatened by the
Commission.
(xi) At the time the MHC-l/MHC-2 Application, including the
Prospectus contained therein, was approved by the OTS, the
MHC-/MHC-2 Application, including the Prospectus contained
therein, complied as to form in all material respects with
the requirements of the Reorganization Regulations (other
than the financial statements, the notes thereto, and other
tabular, financial, statistical and appraisal data included
therein, as to which no opinion need be rendered).
(xii) At the time that the Registration Statement became
effective, (i) the Registration Statement (as amended or
supplemented, if so amended or supplemented) (other than the
financial statements, the notes thereto, and other tabular,
financial, statistical and appraisal data included therein,
as to which no opinion need be rendered), complied as to
form in all material respects with the requirements of the
1933 Act and the 1933 Act Regulations, and (ii) the
Prospectus (other than the financial statements, the notes
thereto, and other tabular, financial, statistical and
appraisal data included therein, as to which no opinion need
be rendered) complied as to form in all material respects
with the requirements of the 1933 Act and the 1933 Act
Regulations.
(xiii) The terms and provisions of the Shares of the Company
conform, in all material respects, to the description
thereof contained in the
24
Registration Statement and Prospectus, and the form of
certificate used to evidence the Shares is in due and proper
form.
(xiv) There are no legal or governmental proceedings
pending, or to the Actual Knowledge of such counsel
threatened (i) asserting the invalidity of this Agreement,
(ii) seeking to prevent the Reorganization or the offer,
sale or issuance of the Shares, or (iii) which are required
to be disclosed in the Registration Statement and
Prospectus, other than those disclosed therein.
(xv) Neither the MHC, the Company nor the Bank are required
to be registered as an investment company under the
Investment Company Act of 1940.
(xvi) To such counsel's Actual Knowledge, neither the MHC,
the Company nor the Bank is in violation of any directive
from the OTS or the FDIC to make any material change in the
method of conducting its respective business.
(xvii) To such counsel*s Actual Knowledge, there are no
material contracts, indentures, mortgages, loan agreements,
notes, leases or other instruments required to be described
or referred to in the MHC-1/MHC-2 Application, the
Registration Statement or the Prospectus or required to be
filed as exhibits thereto other than those described or
referred to therein or filed as exhibits thereto in the
MHC-l/MHC-2 Application, the Registration Statement or the
Prospectus. The description in the MHC-/MHC-2 Application,
the Registration Statement and the Prospectus of such
documents and exhibits is accurate in all material respects
and fairly presents the information required to be shown.
(xviii) The Plan complies in all material respects with all
applicable federal law, rules, regulations, decisions and
orders including, but not limited to, the Reorganization
Regulations; no order has been issued by the OTS, the
Commission, the FDIC, or any state authority to suspend the
Offering or the use of the Prospectus, and no action for
such purposes has been instituted or to such counsel*s
Actual Knowledge threatened by the OTS, the Commission, the
FDIC, or any other state authority and, to such counsel*s
Actual Knowledge, no person has sought to obtain regulatory
or judicial review of the final action of the OTS approving
the Plan, the MHC-1/MHC-2 Application, the Holding Company
Application or the Prospectus.
(xix) The Company, the MHC and the Bank have obtained all
material licenses, permits and other governmental
authorizations currently required for the conduct of their
businesses as described in the Registration Statement and
all such licenses, permits and other governmental
authorizations are in full force and effect, and to such
counsel*s Actual
25
Knowledge the Company, the MHC and the Bank are in all
material respects complying therewith.
(xx) Neither the MHC, the Company nor the Bank is in
violation of its Charter and Bylaws or its Articles of
Incorporation, Constitution and Bylaws, as appropriate or,
to such counsel*s Actual Knowledge, in default or violation
of any obligation, agreement, covenant or condition
contained in any contract, indenture, mortgage, loan
agreement, note, lease or other instrument to which it is a
party or by which it or its property may be bound, except
for such defaults or violations which would not have a
material adverse impact on the financial condition or
results of operations of the MHC, the Company and the Bank
on a consolidated basis; to such counsel*s Actual Knowledge,
the execution and delivery of this Agreement, the incurrence
of the obligations herein set forth and the consummation of
the transactions contemplated herein will not 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 MHC, the
Company or the Bank pursuant to any material contract,
indenture, mortgage, loan agreement, note, lease or other
instrument to which the MHC, the Company or the Bank is a
party or by which any of them may be bound, or to which any
of the property or assets of the MHC, the Company or the
Bank are subject (other than the establishment of the
liquidation account); and such action will not result in any
violation of the provisions of the Charter or Bylaws of the
Company or MHC or the Articles of Incorporation,
Constitution or the Bylaws of the Bank or result in any
violation of any applicable federal or state law, act,
regulation (except that no opinion with respect to the
securities and blue sky laws of various jurisdictions or the
rules or regulations of the NASD need be rendered) or order
or court order, writ, injunction or decree.
(xxi) The Company*s Charter and Bylaws comply in all
material respects with the laws of the United States of
America. The MHC*s Charter and Bylaws comply in all material
respects with the laws of the United States of America. The
Bank*s Articles of Incorporation, Constitution and Bylaws
comply in all material respects with Oklahoma law.
(xxii) The information in the Prospectus under the captions
"Regulation," "Taxation," "The Reorganization," "The Stock
Offering," "Restrictions on Acquisition of Osage Federal
Financial, Inc." and "Description of Capital Stock," to the
extent that such information constitutes matters of law,
summaries of legal matters, documents or proceedings, or
legal conclusions, has been reviewed by such counsel and is
correct in all material respects. The description of the
Reorganization process in the Prospectus under the caption
"The Reorganization" to the extent that such information
constitutes matters of law, summaries of legal matters,
documents or proceedings, or legal conclusions, has been
reviewed by
26
such counsel and fairly describes such process in all
material respects. The descriptions in the Prospectus of
statutes or regulations are accurate summaries and fairly
present the information required to be shown. The
information under the caption "The Reorganization--Federal
and State Tax Consequences of the Reorganization" has been
reviewed by such counsel and fairly describes the federal
and state tax opinions rendered by them and BKD, LLP,
respectively, to the Company, the MHC and the Bank with
respect to such matters.
In addition, such counsel shall state that during the
preparation of the MHC-l/MHC-2 Application, the Holding
Company Application, the Registration Statement and the
Prospectus, they participated in conferences with certain
officers of, the independent public and internal accountants
for, and other representatives of, the Company, the MHC and
the Bank, at which conferences the contents of the
MHC-l/MHC-2 Application, the Holding Company Application,
the Registration Statement and the Prospectus and related
matters were discussed and, while such counsel have not
confirmed the accuracy or completeness of or otherwise
verified the information contained in the MHC-1/MHC-2
Application, the Holding Company Application, the
Registration Statement or the Prospectus and do not assume
any responsibility for such information, based upon such
conferences and a review of documents deemed relevant for
the purpose of rendering their opinion (relying as to
materiality as to factual matters on certificates of
officers and other factual representations by the Company,
the MHC and the Bank), nothing has come to their attention
that would lead them to believe that the MHC-/MHC-2
Application, the Holding Company Application, the
Registration Statement, the Prospectus, or any amendment or
supplement thereto (other than the financial statements, the
notes thereto, and other tabular, financial, statistical and
appraisal data included therein as to which no view need be
rendered) 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, in
light of the circumstances under which they were made, not
misleading.
In giving such opinion, such counsel may rely as to all
matters of fact on certificates of officers or directors of
the Company, the MHC and the Bank and certificates of public
officials. Such counsel*s opinion shall be limited to
matters governed by federal laws and by the laws of the
State of Oklahoma.
For purposes of such opinion, no proceedings shall be deemed
to be pending, no order or stop order shall be deemed to be
issued, and no action shall be deemed to be instituted
unless, in each case, a director or executive officer of the
Company, the MHC or the Bank shall have received a copy of
such proceedings, order, stop order or action. In addition,
such opinion may be limited to present statutes, regulations
and
27
judicial interpretations and to facts as they presently
exist; in rendering such opinion, such counsel need assume
no obligation to revise or supplement it should the present
laws be changed by legislative or regulatory action,
judicial decision or otherwise; and such counsel need
express no view, opinion or belief with respect to whether
any proposed or pending legislation, if enacted, or any
proposed or pending regulations or policy statements issued
by any regulatory agency, whether or not promulgated
pursuant to any such legislation, would affect the validity
of the Reorganization or any aspect thereof. Such counsel
may assume that any agreement is the valid and binding
obligation of any parties to such agreement other than the
Company or the Bank.
(d) A Blue Sky Memorandum from ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇, PC relating to
the Offering, including Agent's participation therein, and should be
furnished to Agent with a copy thereof addressed to Agent or upon
which ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇, PC shall state Agent may rely. The Blue
Sky Memorandum will relate to the necessity of obtaining or confirming
exemptions, qualifications or the registration of the Shares under
applicable state securities law.
(e) At the Closing Date, the Agent shall receive a certificate of the
Chief Executive Officer and the Chief Financial Officer of the
Company, the MHC and the Bank in form and substance reasonably
satisfactory to the Agent*s Counsel, dated as of such Closing Date, to
the effect that: (i) they have carefully examined the Prospectus and,
in their opinion, at the time the Prospectus became authorized for
final use, the Prospectus did not contain any untrue statement of a
material fact or omit to state a material fact necessary in order to
make the statements therein, in light of the circumstances under which
they were made, not misleading; (ii) since the date the Prospectus
became authorized for final use, no event has occurred which should
have been set forth in an amendment or supplement to the Prospectus
which has not been so set forth, including specifically, but without
limitation, any material adverse change in the condition, financial or
otherwise, or in the earnings, capital, properties or business of the
Company, the MHC or the Bank and the conditions set forth in this
Section 7 have been satisfied; (iii) since the respective dates as of
which information is given in the Registration Statement and the
Prospectus, there has been no material adverse change in the
condition, financial or otherwise, or in the earnings, capital or
properties of the Company, the MHC or the Bank independently, or of
the Company, the MHC and the Bank considered as one enterprise,
whether or not arising in the ordinary course of business; (iv) the
representations and warranties in Section 4 are true and correct with
the same force and effect as though expressly made at and as of the
Closing Date; (v) the Company, the MHC and the Bank have complied in
all material respects with all agreements and satisfied all conditions
on their part to be performed or satisfied at or prior to the Closing
Date and will comply in all material respects with all obligations to
be satisfied by them after the Reorganization; (vi) no stop order
suspending the effectiveness of the Registration Statement has been
initiated or, to the best knowledge of the Company, the MHC or the
Bank, threatened by the Commission or any state authority; (vii) no
order suspending the Offering, the Reorganization, the acquisition of
all of the shares of the Bank by the Company or the effectiveness of
the Prospectus has been issued and no
28
proceedings for that purpose are pending or, to the best knowledge of
the Company, the MHC or the Bank, threatened by the OTS, the
Commission, the FDIC, or any state authority; and (viii) to the best
knowledge of the Company or the Bank, no person has sought to obtain
review of the final action of the OTS approving the Plan.
(f) Neither the MHC, the Company nor the Bank shall have sustained,
since the date of the latest financial statements included in the
Registration Statement and Prospectus, any material loss or
interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, otherwise
than as set forth in the Registration Statement and the Prospectus,
and since the respective dates as of which information is given in the
Registration Statement and the Prospectus, there shall not have been
any material adverse effect on the financial condition, results of
operations, or business of the MHC, the Company or the Bank that is in
the Agent's reasonable judgment sufficiently material and adverse as
to make it impracticable or inadvisable to proceed with the Offerings
or the delivery of the Shares on the terms and in the manner
contemplated in the Prospectus.
(g) Prior to and at the Closing Date: (i) in the reasonable opinion of
the Agent, there shall have been no material adverse change in the
financial condition, results of operations or business of the Company,
the MHC and the Bank considered as one enterprise, from that as of the
latest dates as of which such condition is set forth in the
Prospectus, other than transactions referred to or contemplated
therein; (ii) the Company, the MHC or the Bank shall not have received
from the OTS or the FDIC any direction (oral or written) to make any
material change in the method of conducting their business with which
it has not complied (which direction, if any, shall have been
disclosed to the Agent) or which materially and adversely would affect
the financial condition, results of operations or business of the
Company, the MHC and the Bank taken as a whole; (iii) neither the
Company nor the Bank shall have been in default (nor shall an event
have occurred which, with notice or lapse of time or both, would
constitute a default) under any provision of any agreement or
instrument relating to any outstanding indebtedness; (iv) no action,
suit or proceeding, at law or in equity or before or by any federal or
state commission, board or other administrative agency, shall be
pending or, to the knowledge of the Company, the MHC or the Bank,
threatened against the Company, the MHC or the Bank or affecting any
of their properties wherein an unfavorable decision, ruling or finding
would materially and adversely affect the financial condition, results
of operations or business taken as a whole; and (v) the Shares shall
have been qualified or registered for offering and sale or exempted
therefrom under the securities or blue sky laws of the jurisdictions
as the Agent shall have reasonably requested and as agreed to by the
Company, the MHC and the Bank.
(h) Concurrently with the execution of this Agreement, the Agent shall
receive a letter from BKD, LLP dated as of the date of the Prospectus
and addressed to the Agent: (i) confirming that BKD, LLP is a firm of
independent public accountants within the meaning of Rule 101 of the
Code bf Professional Ethics of the American Institute of Certified
Public Accountants and applicable regulations of the OTS and stating
in effect that in its opinion the financial statements, schedules and
related notes of the Bank as of
29
June 30, 2003 and 2002, and for each of the two years in the period
ended June 30, 2003, included in the Prospectus and covered by their
opinion included therein, comply as to form in all material respects
with the applicable accounting requirements and related published
rules and regulations of the OTS and the 1933 Act; (ii) stating in
effect that, on the basis of certain agreed upon procedures (but not
an audit in accordance with generally accepted auditing standards)
consisting of a reading of the latest available unaudited interim
financial statements of the Bank prepared by the Bank, a reading of
the minutes of the meetings of the Board of Directors and members of
the Bank and consultations with officers of the Bank responsible for
financial and accounting matters, nothing came to their attention
which caused them to believe that: (A) the unaudited financial
statements included in the Prospectus are not in conformity with the
1933 Act, applicable accounting requirements of the OTS and accounting
principles generally accepted in the United States of America applied
on a basis substantially consistent with that of the audited financial
statements included in the Prospectus; or (B) during the period from
the date of the latest unaudited financial statements included in the
Prospectus to a specified date not more than three business days prior
to the date of the Prospectus, except as has been described in the
Prospectus, there was any increase in borrowings, other than normal
deposit fluctuations, by the Bank; or (C) there was any decrease in
the net assets of the Bank at the date of such letter as compared with
amounts shown in the latest unaudited balance sheets included in the
Prospectus; and (iii) stating that, in addition to the audit referred
to in their opinion included in the Prospectus and the performance of
the procedures referred to in clause (ii) of this subsection (g), they
have compared with the general accounting records of the Bank, which
are subject to the internal controls of the Bank, the accounting
system and other data prepared by the Bank, directly from such
accounting records, to the extent specified in such letter, such
amounts and/or percentages set forth in the Prospectus as the Agent
may reasonably request; and they have reported on the results of such
comparisons.
(i) At the Closing Date, the Agent shall receive a letter dated the
Closing Date, addressed to the Agent, confirming the statements made
by BKD, LLP in the letter delivered by it pursuant to subsection (g)
of this Section 7, the "specified date" referred to in clause (ii) of
subsection (g) to be a date specified in the letter required by this
subsection (h) which for purposes of such letter shall not be more
than three business days prior to the Closing Date.
(j) At the Closing Date, the Bank shall receive a letter from FinPro,
Inc., dated the Closing Date (i) confirming that said firm is
independent of the Company, the MHC and the Bank and is experienced
and expert in the area of corporate appraisals within the meaning of
Title 12 of the Code of Federal Regulations, Section 563b.200(b), (ii)
stating in effect that the Appraisal prepared by such firm complies in
all material respects with the applicable requirements of Title 12 of
the Code of Federal Regulations, and (iii) further stating that its
opinion of the aggregate pro forma market value of the Company and the
Bank, as most recently updated, remains in effect.
(k) At or prior to the Closing Date, the Agent shall receive: (i) a
copy of the letters from the OTS approving the MHC-l/MHC-2 Application
and authorizing the use of the Prospectus; (ii) a copy of the order
from the Commission declaring the Registration
30
Statement effective; (iii) a certificate from the OTS evidencing the
valid existence of the Bank; (iv) a certificate from the FDIC
evidencing the Bank*s insurance of accounts; (v) a certificate from
the FHLB-Topeka evidencing the Bank*s membership therein; (vi) a copy
of the letter from the OTS approving the Company*s Holding Company
Application; and (vii) a certified copy of the Bank*s Charter and
Bylaws.
(l) Subsequent to the date hereof, there shall not have occurred any
of the following; (i) a suspension or limitation in trading in
securities generally on the New York Stock Exchange (the "NYSE") or in
the over-the-counter market, or quotations halted generally on The
Nasdaq Stock Market, or minimum or maximum prices for trading have
been fixed, or maximum ranges for prices for securities have been
required by either of such exchanges or the NASD or by order of the
Commission or any other governmental authority; (ii) a general
moratorium on the operations of commercial banks, or federal savings
and loan associations or a general moratorium on the withdrawal of
deposits from commercial banks or federal savings and loan
associations declared by federal or state authorities; (iii) the
engagement by the United States in hostilities which have resulted in
the declaration, on or after the date hereof, of a national emergency
or war; or (iv) a material decline in the price of equity or debt
securities if the effect of such a declaration or decline, in the
Agent*s reasonable judgment, makes it impracticable or inadvisable to
proceed with the Offering or the delivery of the Shares on the terms
and in the manner contemplated in the Registration Statement and the
Prospectus.
(m) At or prior to the Closing Date, counsel to the Agent shall have
been furnished with such documents and opinions as they may reasonably
require for the purpose of enabling them to pass upon the sale of the
Shares as herein contemplated and related proceedings or in order to
evidence the occurrence or completeness of any of the representations
or warranties, or the fulfillment of any of the conditions, herein
contained; and all proceedings taken by the Company or the Bank in
connection with the Reorganization and the sale of the Shares as
herein contemplated shall be satisfactory in form and substance to the
Agent and its counsel.
(n) All such opinions, certificates, letters and documents will be in
compliance with the provisions hereof only if they are reasonably
satisfactory in form and substance to the Agent and to counsel for the
Agent. Any certificate signed by an officer of the MHC, the Holding
Company or the Bank and delivered to the Agent or to counsel for the
Agent shall be deemed a representation and warranty by the MHC, the
Holding Company or the Bank, as the case may be, to the Agent as to
the statements made therein.
Section 8. Indemnification.
(a) The Company, the MHC and the Bank jointly and severally agree to
indemnify and hold harmless the Agent, its respective officers and
directors, employees and agents, and each person, if any, who controls
the Agent within the meaning of Section 15 of the 1933 Act or Section
20(a) of the 1934 Act, against any and all loss, liability, claim,
damage or expense whatsoever (including, but not limited to,
settlement expenses), joint or several, that the Agent or any of them
may suffer or to which the Agent and any such persons may become
subject under all applicable federal or state laws or otherwise, and
31
to promptly reimburse the Agent and any such persons upon written
demand for any expense (including reasonable fees and disbursements of
counsel) incurred by the Agent or any of them in connection with
investigating, preparing or defending any actions, proceedings or
claims (whether commenced or threatened) to the extent such losses,
claims, damages, liabilities or actions: (i) arise out of or are based
upon any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement (or any amendment or
supplement thereto), preliminary or final Prospectus (or any amendment
or supplement thereto), the MHC-l/MHC-2 Application (or any amendment
or supplement thereto), the Holding Company Application or any
instrument or document executed by the Company, the MHC or the Bank or
based upon written information supplied by the Company, the MHC or the
Bank filed in any state or jurisdiction to register or qualify any or
all of the Shares or to claim an exemption therefrom or provided to
any state or jurisdiction to exempt the Company as a broker-dealer or
its officers, directors and employees as broker-dealers or agent,
under the securities laws thereof (collectively, the "Blue Sky
Application"), or any document, advertisement, oral statement or
communication ("Sales Information") prepared, made or executed by or
on behalf of the Company, the MHC or the Bank with their consent or
based upon written or oral information furnished by or on behalf of
the Company, the MHC or the Bank, whether or not filed in any
jurisdiction, in order to qualify or register the Shares or to claim
an exemption therefrom under the securities laws thereof; (ii) arise
out of or are based upon the omission or alleged omission to state in
any of the foregoing documents or information a material fact required
to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading;
or (iii) arise from any theory of liability whatsoever relating to or
arising from or based upon the Registration Statement (or any
amendment or supplement thereto), preliminary or final Prospectus (or
any amendment or supplement thereto), the MHC-1/MHC-2 Application (or
any amendment or supplement thereto), any Blue Sky Application or
Sales Information or other documentation distributed in connection
with the Reorganization; provided, however, that no indemnification is
required under this paragraph (a) to the extent such losses, claims,
damages, liabilities or actions arise out of or are based upon any
untrue material statement or alleged untrue material statement in, or
material omission or alleged material omission from, the Registration
Statement (Or any amendment or supplement thereto), preliminary or
final Prospectus (or any amendment or supplement thereto), the
MHC-1/MHC-2 Application, any Blue Sky Application or Sales Information
made in reliance upon and in conformity with information furnished in
writing to the Company, the MHC or the Bank by the Agent or its
counsel regarding the Agent, provided, that it is agreed and
understood that the only information furnished in writing to the
Company, the MHC or the Bank by the Agent regarding the Agent is set
forth in the Prospectus under the caption "The Reorganization and
Offering--Plan of Distribution and Marketing Arrangements"; and,
provided further, that such indemnification shall be to the extent not
prohibited by the Commission, the OTS, the FDIC and the Board of
Governors of the Federal Reserve.
(b) The Agent agrees to indemnify and hold harmless the Company, the
MHC and the Bank, their directors and officers and each person, if
any, who controls the Company, the MHC or the Bank within the meaning
of Section 15 of the 1933 Act or Section 20(a) of the 1934 Act against
any and all loss, liability, claim, damage or expense whatsoever
32
(including but not limited to settlement expenses), joint or several,
which they, or any of them, may suffer or to which they, or any of
them may become subject under all applicable federal and state laws or
otherwise, and to promptly reimburse the Company, the Bank, and any
such persons upon written demand for any expenses (including
reasonable fees and disbursements of counsel) incurred by them, or any
of them, in connection with investigating, preparing or defending any
actions, proceedings or claims (whether commenced or threatened) to
the extent such losses, claims, damages, liabilities or actions: (i)
arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement
(or any amendment or supplement thereto), the MHC-1/MHC-2 Application
(or any amendment or supplement thereto), the preliminary or final
Prospectus (or any amendment or supplement thereto), any Blue Sky
Application or Sales Information, (ii) are based upon the omission or
alleged omission to state in any of the foregoing documents a material
fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading, or (iii) arise from any theory of liability whatsoever
relating to or arising from or based upon the Registration Statement
(or any amendment or supplement thereto), preliminary or final
Prospectus (or any amendment or supplement thereto), the MHC-l/MHC-2
Application (or any amendment or supplement thereto), or any Blue Sky
Application or Sales Information or other documentation distributed in
connection with the Reorganization; provided, however, that the
Agent*s obligations under this Section 8(b) shall exist only if and
only to the extent that such untrue statement or alleged untrue
statement was made in, or such material fact or alleged material fact
was omitted from, the Registration Statement (or any amendment or
supplement thereto), the preliminary or final Prospectus (or any
amendment or supplement thereto), the MHC-1/MHC-2 Application (or any
amendment or supplement thereto), any Blue Sky Application or Sales
Information in reliance upon and in conformity with information
furnished in writing to the Company, the MHC or the Bank by the Agent
or its counsel regarding the Agent, provided, that it is agreed and
understood that the only information furnished in writing to the
Company, the MHC or the Bank by the Agent regarding the Agent is set
forth in the Prospectus under the caption "The Reorganization and
Offering--Plan of Distribution and Marketing Arrangements."
(c) Each indemnified party shall give prompt written notice to each
indemnifying party of any action, proceeding, claim (whether commenced
or threatened), or suit instituted against it in respect of which
indemnity may be sought hereunder, but failure to so notify an
indemnifying party shall not relieve it from any liability which it
may have on account of this Section 8 or otherwise. An indemnifying
party may participate at its own expense in the defense of such
action. In addition, if it so elects within a reasonable time after
receipt of such notice, an indemnifying party, jointly with any other
indemnifying parties receiving such notice, may assume defense of such
action with counsel chosen by it and approved by the indemnified
parties that are defendants in such action, unless such indemnified
parties reasonably object to such assumption on the ground that there
may be legal defenses available to them that are different from or in
addition to those available to such indemnifying party. If an
indemnifying party assumes the defense of such action, the
indemnifying parties shall not be liable for any fees and expenses of
counsel for the indemnified parties incurred thereafter in connection
with such action, proceeding or claim, other than reasonable costs of
investigation. In no event
33
shall the indemnifying parties be liable for the fees and expenses of
more than one separate firm of attorneys (and any special counsel that
said firm may retain) for each indemnified party in connection with
any one action, proceeding or claim or separate but similar or related
actions, proceedings or claims in the same jurisdiction arising out of
the same general allegations or circumstances.
Section 9. Contribution. In order to provide for just and equitable
contribution in circumstances in which the indemnification provided for in
Section 8 is due in accordance with its terms but is for any reason held by a
court to be unavailable from the Company, the Bank or the Agent, the Company,
the MHC, the Bank and the Agent shall contribute to the aggregate losses,
claims, damages and liabilities (including any investigation, legal and other
expenses incurred in connection with, and any amount paid in settlement of, any
action, suit or proceeding, but after deducting any contribution received by the
Company, the MHC, the Bank or the Agent from persons other than the other
parties thereto, who may also be liable for contribution) in such proportion so
that the Agent is responsible for that portion represented by the percentage
that the fees paid to the Agent pursuant to Section 2 of this Agreement (not
including expenses) bears to the gross proceeds received by the Company from the
sale of the Shares in the Offering, and the Company, the MHC and the Bank shall
be responsible for the balance. If, however, the allocation provided above is
not permitted by applicable law, then each indemnifying party shall contribute
to such amount paid or payable by such indemnified party in such proportion as
is appropriate to reflect not only such relative fault of the Company, the MHC
and the Bank on the one hand and the Agent on the other in connection with the
statements or omissions which resulted in such losses, claims, damages or
liabilities (or actions, proceedings or claims in respect thereto), but also the
relative benefits received by the Company, the MHC and the Bank on the one hand
and the Agent on the other from the Offering (before deducting expenses). The
relative fault shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by the
Company, the MHC and/or the Bank on the one hand or the Agent on the other and
the parties* relative intent, good faith, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Company, the
MHC, the Bank and the Agent agree that it would not be just and equitable if
contribution pursuant to this Section 9 were determined by pro-rata allocation
or by any other method of allocation which does not take into account the
equitable considerations referred to above in this Section 9. The amount paid or
payable by an indemnified party as a result of the losses, claims, damages or
liabilities (or actions, proceedings or claims in respect thereof) referred to
above in this Section 9 shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action, proceeding or claim. It is expressly agreed that
the Agent shall not be liable for any loss, liability, claim, damage or expense
or be required to contribute any amount pursuant to Section 8(b) or this Section
9 which in the aggregate exceeds the amount paid (excluding reimbursable
expenses) to the Agent under this Agreement. It is understood that the above
stated limitation on the Agent*s liability is essential to the Agent and that
the Agent would not have entered into this Agreement if such limitation had not
been agreed to by the parties to this Agreement. No person found guilty of any
fraudulent misrepresentation (within the meaning of Section 11(f) of the 1933
Act) shall be entitled to contribution from any person who was not found guilty
of such fraudulent misrepresentation. The obligations of the Company, the Bank
and the Agent under this Section 9 and under Section 8 shall be in addition to
any liability which the Company, the Bank and the
34
Agent may otherwise have. For purposes of this Section 9, each of the Agent*s,
the Company*s or the Bank*s officers and directors and each person, if any, who
controls the Agent or the Company, the MHC or the Bank within the meaning of the
1933 Act and the 1934 Act shall have the same rights to contribution as the
Agent, or the MHC, the Company or the Bank. Any party entitled to contribution,
promptly after receipt of notice of commencement of any action, suit, claim or
proceeding against such party in respect of which a claim for contribution may
be made against another party under this Section 9, will notify such party from
whom contribution may be sought, but the omission to so notify such party shall
not relieve the party from whom contribution may be sought from any other
obligation it may have hereunder or otherwise than under this Section 9.
Section 10. Survival of Agreements, Representations and Indemnities.
The respective indemnities of the Company, the MHC, the Bank and the Agent, the
representations and warranties and other statements of the Company, the MHC, the
Bank and the Agent set forth in or made pursuant to this Agreement and the
provisions relating to contribution shall remain in full force and effect,
regardless of any termination or cancellation of this Agreement or any
investigation made by or on behalf of the Agent, the Company, the MHC, the Bank
or any controlling person referred to in Section 8 hereof, and shall survive the
issuance of the Shares, and any successor or assign of the Agent, the Company,
the MHC, the Bank, and any such controlling person shall be entitled to the
benefit of the respective agreements, indemnities, warranties and
representations.
Section 11. Termination. The Agent may terminate this Agreement by
giving the notice indicated below in this Section 11 at any time after this
Agreement becomes effective as follows:
(a) If any domestic or international event or act or occurrence has
materially disrupted the United States securities markets such as to
make it, in the Agent*s reasonable opinion, impracticable to proceed
with the offering of the Shares; or if trading on the NYSE shall have
suspended (except that this shall not apply to the imposition of NYSE
trading collars imposed on program trading); or if the United States
shall have become involved in a war or major hostilities; or if a
general banking moratorium has been declared by a state or federal
authority which has a material effect on the Bank or the
Reorganization; or if a moratorium in foreign exchange trading by
major international banks or persons has been declared; or if there
shall have been a material adverse change in the financial condition,
results of operations or business of the Bank, or if the Bank shall
have sustained a material or substantial loss by fire, flood,
accident, hurricane, earthquake, theft, sabotage or other calamity or
malicious act, whether or not said loss shall have been insured; or if
there shall have been a material adverse change in the financial
condition, results of operations or business of the Company, the MHC
or the Bank.
(b) In the event the Company fails to sell the required minimum number
of the Shares by March 31, 2004, and in accordance with the provisions
of the Plan or as required by the Reorganization Regulations, and
applicable law, this Agreement shall terminate upon refund by the
Company to each person who has subscribed for or ordered any of the
Shares the full amount which it may have received from such person,
together with
35
interest as provided in the Prospectus, and no party to this Agreement
shall have any obligation to the other hereunder, except as set forth
in Sections 2(b), 6, 8 and 9 hereof.
(c) If any of the conditions specified in Section 7 shall not have
been fulfilled when and as required by this Agreement, unless waived
in writing, or by the Closing Date, this Agreement and all of the
Agent*s obligations hereunder may be cancelled by the Agent by
notifying the Company, the MHC and the Bank of such cancellation in
writing or by telegram at any time at or prior to the Closing Date,
and any such cancellation shall be without liability of any party to
any other party except as otherwise provided in Sections 2(b), 6, 8
and 9 hereof.
(d) If the Agent elects to terminate this Agreement as provided in
this Section, the Company, the MHC and the Bank shall be notified
promptly by telephone or telegram, confirmed by letter.
The Company, the MHC and the Bank may terminate this Agreement in the
event the Agent is in material breach of the representations and warranties or
covenants contained in Section 5 and such breach has not been cured after the
Company and the Bank have provided the Agent with notice of such breach.
This Agreement may also be terminated by mutual written consent of the
parties hereto.
Section 12. Notices. All communications hereunder, except as herein
otherwise specifically provided, shall be mailed in writing and if sent to the
Agent shall be mailed, delivered or telegraphed and confirmed to ▇▇▇▇▇, ▇▇▇▇▇▇▇▇
& ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: ▇▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇ (with a copy to Silver, ▇▇▇▇▇▇▇▇ & ▇▇▇▇, L.L.P., ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, P.C. and, if sent to
the Company and the Bank, shall be mailed, delivered or telegraphed and
confirmed to the Company and the Bank at ▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇ ▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇, Attention: ▇▇▇▇ ▇. ▇▇▇▇▇, President (with a copy
to Malizia Spidi & ▇▇▇▇▇, PC, ▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇.
Section 13. Parties. The Company, the MHC and the Bank shall be
entitled to act and rely on any request, notice, consent, waiver or agreement
purportedly given on behalf of the Agent when the same shall have been given by
the undersigned. The Agent shall be entitled to act and rely on any request,
notice, consent, waiver or agreement purportedly given on behalf of the Company,
the MHC or the Bank, when the same shall have been given by the undersigned or
any other officer of the Company, the MHC or the Bank This Agreement shall inure
solely to the benefit of, and shall be binding upon, the Agent, the Company, the
MHC, the Bank, and their respective successors and assigns, and no other person
shall have or be construed to have any legal or equitable right, remedy or claim
under or in respect of or by virtue of this Agreement or any provision herein
contained. It is understood and agreed that this Agreement is the exclusive
agreement among the parties hereto, and supersedes any prior agreement among the
parties and may not be varied except in writing signed by all the parties.
36
Section 14. Closing. The closing for the sale of the Shares shall take
place on the Closing Date at such location as mutually agreed upon by the Agent
and the Company and the Bank. At the closing, the Company and the Bank shall
deliver to the Agent in next day funds the commissions, fees and expenses due
and owing to the Agent as set forth in Sections 2 and 6 hereof and the opinions
and certificates required hereby and other documents deemed reasonably necessary
by the Agent shall be executed and delivered to effect the sale of the Shares as
contemplated hereby and pursuant to the terms of the Prospectus.
Section 15. Partial Invalidity. In the event that any term, provision
or covenant herein or the application thereof to any circumstance or situation
shall be invalid or unenforceable, in whole or in part, the remainder hereof and
the application of said term, provision or covenant to any other circumstances
or situation shall not be affected thereby, and each term, provision or covenant
herein shall be valid and enforceable to the full extent permitted by law.
Section 16. Construction. This Agreement shall be construed in
accordance with the laws of the State of Oklahoma.
Section 17. Counterparts. This Agreement may be executed in separate
counterparts, each of which so executed and delivered shall be an original, but
all of which together shall constitute but one and the same instrument.
Section 18. Entire Agreement. This Agreement, including schedules and
exhibits hereto, which are integral parts hereof and incorporated as though set
forth in full, constitutes the entire agreement between the parties pertaining
to the subject matter hereof superseding any and all prior or contemporaneous
oral or prior written agreements, proposals, letters of intent and
understandings, and cannot be modified, changed, waived or terminated except by
a writing which expressly states that it is an amendment, modification or
waiver, refers to this Agreement and is signed by the party to be charged. No
course of conduct or dealing shall be construed to modify, amend or otherwise
affect any of the provisions hereof.
37
If the foregoing correctly sets forth the arrangement among the
Company, the MHC, the Bank and the Agent, please indicate acceptance thereof in
the space provided below for that purpose, whereupon this letter and the Agent*s
acceptance shall constitute a binding agreement.
Very truly yours,
OSAGE FEDERAL FINANCIAL, INC. OSAGE FEDERAL SAVINGS AND LOAN ASSOCIATION
(In formation)
By Its Authorized Representative: By Its Authorized Representative
----------------------------------- ------------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇, President ▇▇▇▇ ▇. ▇▇▇▇▇, President
OSAGE FEDERAL MHC
(In formation)
By Its Authorized Representative:
-----------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇, President
Accepted as of the date first above
written
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, Inc.
By Its Authorized Representative:
-----------------------------------
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Managing Director
38
If the foregoing correctly sets forth the arrangement among the
Company, the MHC, the Bank and the Agent, please indicate acceptance thereof in
the space provided below for that purpose, whereupon this letter and the Agent*s
acceptance shall constitute a binding agreement.
Very truly yours,
OSAGE FEDERAL FINANCIAL, INC. OSAGE FEDERAL SAVINGS AND LOAN ASSOCIATION
(In formation)
By Its Authorized Representative: By Its Authorized Representative:
----------------------------------- ------------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇, President ▇▇▇▇ ▇. ▇▇▇▇▇, President
OSAGE FEDERAL MHC
(In formation)
By Its Authorized Representative:
-----------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇, President
Accepted as of the date first above
written
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, Inc.
-----------------------------------
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Managing Director
39
