EXHIBIT 1.2 DRAFT FORM OF AGENCY AGREEMENT
Exhibit 1.2
FIRST PLACE FINANCIAL CORP.
Up to 13,754,000 Shares
COMMON STOCK
($0.01 Par Value)
Subscription Price $10.00 Per Share
FORM OF
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AGENCY AGREEMENT
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November __, 1998
Xxxxxxx Xxxx & Company,
a division of Xxxxx, Xxxxxxxx & Xxxxx, Inc.
000 Xxxxxxxxx Xxxxx
Xxxxxx, Xxxx 00000-0000
Ladies and Gentlemen:
First Place Financial Corp., a Delaware corporation (the "Company") and
First Federal Savings and Loan Association of Xxxxxx, a federally chartered
mutual savings and loan association (the "Association," which shall include all
references to the Association 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 Xxxxxxx Xxxx & Company, a division
of Xxxxx, Xxxxxxxx & Xxxxx, Inc. ("Xxxx") as follows:
SECTION 1. THE OFFERING. The Association, in accordance with its plan of
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conversion, adopted by its Board of Directors of the Association (the "Plan"),
intends to convert from a federally chartered mutual savings and loan
association to a federally chartered stock savings and loan association, and to
issue all of its issued and outstanding capital stock to the Company. In
addition, pursuant to the Plan, the Company will offer and sell up to 13,754,000
shares of its common stock, par value $0.01 per share (the "Shares" or "Common
Stock"), in a subscription offering (the "Subscription Offering") to (1)
depositors of the Association with savings accounts of $100 or more as of March
31, 1997 ("Eligible Account Holders"), (2) the Company's and Association's
Employee Stock Ownership Plan ("ESOP"), (3) depositors of the Association with
savings accounts of $100 or more as of September 30, 1998 ("Supplemental
Eligible Account Holders") and (4) other members (borrowers and depositors) of
the Association as of the Voting Record Date, _______ __, 1998 ("Other
Members"). Subject to the prior subscription rights of the above-listed
parties, the Company is offering for sale in a direct community offering (the
"Community Offering" and, when
referred to together with the Subscription Offering, the "Subscription and
Community Offering") conducted concurrently with the Subscription Offering, the
Shares not so subscribed for or ordered in the Subscription Offering to certain
members of the general public to whom a copy of the Prospectus (as hereinafter
defined) is delivered, with a preference given to natural persons who are
residents of Trumbull and Mahoning Counties of Ohio (the "Local Community")
("Preferred Subscribers") (all such offerees being referred to in the aggregate
as "Eligible Offerees"). It is anticipated that shares not subscribed for in the
Subscription and Community Offering will be offered to members of the general
public on a best efforts basis by a selling group of broker-dealers managed by
Xxxx (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 Association 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 "Conversion."
In connection with the Conversion and pursuant to the terms of the Plan as
described in the Prospectus, immediately following the consummation of the
Conversion, subject to the approval of the members of the Association and
compliance with certain conditions as may be imposed by regulatory authorities,
the Company will contribute newly issued Common Stock equal to 7.7% of such
Shares sold in the Conversion to the First Federal of Xxxxxx Community
Foundation (the "Foundation") such shares hereinafter being referred to as the
("Foundation 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, if any, and such amended
prospectuses as may have been required to the date hereof. 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 the Part 563b of the Regulations Applicable to All
Savings Associations (the "Conversion Regulations"), the Association has filed
with the Office of Thrift Supervision (the "OTS") an Application for Conversion
on Form AC (the "Conversion Application"), including the prospectus, and has
filed such amendments thereto, if any, as may have been required by the OTS.
The Conversion 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 an application to become a savings and loan holding company
and for approval to acquire the Association.
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SECTION 2. RETENTION OF XXXX; COMPENSATION; SALE AND DELIVERY OF THE
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SHARES. Subject to the terms and conditions herein set forth, the Company and
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the Association hereby appoint Xxxx (i) as their exclusive financial advisory
and marketing agent to utilize its best efforts to solicit subscriptions for
Shares of the Common Stock and to advise and assist the Company and the
Association 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 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, Xxxx
accepts such appointment and agrees to consult with and advise the Company and
the Association as to the matters set forth in the letter agreement ("Letter
Agreement"), dated March 23, 1998, between the Association and Xxxx (a copy of
which is attached hereto as Exhibit A). It is acknowledged by the Company and
the Association that Xxxx shall not be required to purchase any Shares and shall
not be obligated to take any action which is inconsistent with all applicable
laws, regulations, decisions or orders. In the event of a Syndicated Community
Offering, Xxxx will assemble and manage a selling group of broker-dealers which
are members of the National Association of Securities Dealers, Inc. (the "NASD")
to participate in the solicitation of purchase orders for shares under a
selected dealers' agreement ("Selected Dealers' Agreement"), the form of which
is set forth as Exhibit B to this Agreement.
The obligations of Xxxx pursuant to this Agreement 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 March 31, 1999 (the "End
Date"). All fees or expenses due to Xxxx but unpaid will be payable to Xxxx 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 Association and Xxxx may agree to renew this Agreement under
mutually acceptable terms.
In the event the Company is unable to sell a minimum of 8,840,000 Shares
(or such lesser amount approved by the OTS) 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 otherwise 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 Xxxx, Xxxx shall be paid the fees and expenses due to
the date of such termination pursuant to subparagraphs (a) and (d) below.
If all conditions precedent to the consummation of the Conversion,
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
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until the conditions specified in Section 7 hereof shall have been complied with
to the reasonable satisfaction of Xxxx and its counsel. The release of Shares
against payment therefor shall be made at 10:00 a.m., Eastern Time, on a date
and at a place acceptable to the Company, the Association and Xxxx or such other
time or place as shall be agreed upon by the Company, the Association and Xxxx.
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, or have released or delivered, the Shares sold in the Offering, in
accordance with the terms herein, is called the "Closing Date."
Xxxx shall receive the following compensation for their services hereunder:
(a) A management fee to Xxxx in the amount of $25,000 payable in four
consecutive [MONTHLY] installments of $10,000 commencing on March 23, 1998. As
of the date of this Agreement, $_______ had been received by Xxxx.
(b) A success fee of 1.25% of the dollar amount of Common Stock sold in the
Subscription and Community Offering, excluding Common Stock purchased by
directors, officers and employees (and members of their immediate families) of
the Association and by the ESOP and any tax-qualified or stock-based
compensation plan and any similar plan created by the Association for some or
all of its directors or employees, payable on the Closing Date. [THE MANAGEMENT
FEE OF $25,000 REFERRED TO IN SUBPARAGRAPH (A) ABOVE WILL BE APPLIED AGAINST THE
SUCCESS FEE].
(c) If any shares of the Company's stock remain available after the
Subscription and Community Offering, at the request of the Association, Xxxx
will seek to form a syndicate of registered broker-dealers to assist in the sale
of such shares of Common Stock on a best efforts basis, subject to the terms and
conditions set forth in the selected dealers agreement. Xxxx will endeavor to
distribute the Common Stock among dealers in a fashion which best meets the
distribution objectives of the Association and the Plan of Conversion. Xxxx
will be paid a fee not to exceed 5.5% of the aggregate Purchase Price of the
shares of Common Stock sold pursuant to the selected dealers agreement and then
will pass on to selected broker-dealers who assist in the syndicated community
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 affected with the assistance
of a broker/dealer shall be transmitted by Xxxx to such broker/dealer. The
decision to utilize selected broker-dealers will be made by the Association upon
consultation with Xxxx. In the event, with respect to any stock purchases, fees
are paid pursuant to this subparagraph 2(c), such fees shall be in lieu of, and
not in addition to, payment pursuant to subparagraph 2(b).
(d) The Association and the Company hereby agree to reimburse Xxxx, from
time to time upon Xxxx'x request, for its reasonable out-of-pocket expenses and
the reasonable fees and expenses of its counsel (such fees of counsel will not
be incurred without the prior approval of the Association). Xxxx'x reasonable
out-of-pocket expenses shall not exceed $15,000 and the fees and expenses of
counsel shall no exceed $________. The Association will bear the expenses of
the Offering customarily borne by issuers including, without limitation, OTS,
SEC, "Blue Sky," and
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NASD filing and registration fees; the fees of the Association's accountants,
conversion agent, attorneys, appraiser, transfer agent and registrar, printing,
mailing and marketing expenses associated with the Conversion; and the fees set
forth under this Section 2.
Full payment of Xxxx'x 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 Association to terminate or abandon the Plan.
Xxxx will provide financial advisory assistance for a period of one year
following completion of the Conversion as set forth in the Letter Agreement.
Following this initial one-year term, if Xxxx and the Company wish to continue
the relationship, a fee will be negotiated and an agreement entered into at that
time.
Section 3. PROSPECTUS: OFFERING. The Shares are to be initially offered
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in the Offering at the Purchase Price as defined and set forth on the cover page
of the Prospectus.
SECTION 4. REPRESENTATIONS AND WARRANTIES. The Company and the
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Association jointly and severally represent and warrant to Xxxx on the date
hereof as follows:
(a) The Registration Statement was declared effective by the Commission on
November __, 1998. At the time the Registration Statement, including the
Prospectus contained therein (including any amendment or supplement thereto),
became effective, the Registration Statement complied 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 Association contained in Sales Information (as such term is defined in
Section 8 hereof) authorized by the Company or the Association 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 was
filed with the Commission; 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 Association by Xxxx expressly regarding Xxxx for use in the
Prospectus under the captions "The Conversion-Marketing and Underwriting
Arrangements" or statements in or omissions from any Sales Information (as
defined below) or information filed pursuant to state securities or blue sky
laws or regulations regarding Xxxx.
(b) The Conversion Application which was prepared by the Company and the
Association and filed with the OTS was approved by the OTS on November __, 1998,
including the waiver of certain provisions of the Conversion Regulations
specified in such approval with respect to the establishment of and contribution
to the Foundation, and the related Prospectus has been authorized for use by the
OTS. At the time of the approval of the Conversion Application, including the
Prospectus (including any amendment or supplement thereto), by the OTS and at
all times
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subsequent thereto until the Closing Date, the Conversion Application, 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 Association by the Agent or its
counsel expressly regarding the Agent for use in the Prospectus contained in the
Conversion Application under the caption "The Conversion-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. The Holding Company Application for approval
pursuant to the HOLA and the regulations promulgated thereunder (the "Control
Act Regulations"), has been prepared by the Association and the Company in
material conformity with the requirements of the Control Act Regulations and has
been filed with the OTS. A conformed copy of the Holding Company Application has
been delivered to the Agent.
(c) The Company has filed with the OTS an Application H-(e)1-S (the
"Holding Company Application") under the Home Owners' Loan Act, as amended, (the
"HOLA") and the regulations promulgated thereunder.
(d) No order has been issued by the Commission, the FDIC or the OTS
preventing or suspending the use of the Prospectus and no action by or before
any such government entity to revoke any approval, authorization or order of
effectiveness related to the Conversion is, to the best knowledge of the Company
or the Association, pending or threatened.
(e) At the Closing Date, the Plan will have been adopted by the Boards of
Directors of the Company and the Association and approved by the members of the
Association, and the offer and sale of the Shares and all actions in connection
with the contribution to the Foundation will have been conducted in all material
respects in accordance with the Plan, the Conversion Regulations, and all other
applicable laws, regulations, decisions and orders, including all terms,
condition, requirements and provisions precedent to the Conversion imposed upon
the Company or the Association by the OTS, the Commission, or any other
regulatory authority and in the manner described in the Prospectus. Upon
completion of the sale by the Company of the Shares contemplated by the
Prospectus, (i) the Association will be converted pursuant to the Plan to a
federally chartered stock savings and loan association, (ii) all of the issued
and outstanding capital stock of the Association will be owned by the Company,
and (iii) the Company will have no direct subsidiaries other than the
Association. The Conversion will have been effected in all material respects in
accordance with all applicable statutes, regulations, decisions and orders; and
upon consummation of the Conversion, the liquidation account for the benefit of
Eligible Account Holders will be duly established in accordance with the
requirements of the Conversion Regulations.
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No person has sought to obtain review of the final action of the OTS in
approving the Plan or in approving the Conversion or the Holding Company
Application pursuant to the Conversion Regulations, the HOLA, or any other
applicable statute or regulation.
(f) At the time of their use, the Proxy Statement and any other proxy
solicitation materials will comply in all material respects with the applicable
provisions of the Conversion Regulations and will not contain an untrue
statement of a material fact or omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances under which
they were made, not misleading. The Company and the Association will promptly
file the Prospectus and any supplemental sales literature with the OTS. The
Prospectus and all supplemental sales literature, as of the date the
Registration Statement became effective and at the Closing Date referred to in
Section 2, complied and will comply in all material respects with the applicable
requirements of the Conversion Regulations and, at or prior to the time of
their first use, will have received all required authorizations of the OTS for
use in final form.
(g) The Association has been duly organized and is a validly existing
federally chartered savings and loan association in the mutual form of
organization and upon consummation of the Conversion will become a duly
organized and validly existing federally chartered savings and loan association
in the 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 Association has obtained all material
licenses, permits and other governmental authorizations currently required for
the conduct of its business; all such licenses, permits and governmental
authorizations are in full force and effect, and the Association is in all
material respects complying with all laws, rules, regulations and orders
applicable to the operation of its business; the Association 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, or the business, operations or income of the
Association. The Association 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 Association.
(h) The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware with
corporate power and authority to own, lease and operate its properties and to
conduct its business as described in the Registration Statement and the
Prospectus, and the Company is 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, or the business, operations or income
of the Company. The Company has obtained all material licenses, permits and
other governmental authorizations currently required for the conduct of its
business; all such licenses, permits and governmental authorizations are in full
force and effect, and the Company is in all material respects complying with all
laws, rules, regulations and orders applicable to the operation of its business.
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(i) The Association has no active subsidiaries.
(j) The Association is a member of the Federal Home Loan Association of
Cincinnati ("FHLB-Cincinnati"). The deposit accounts of the Association 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 Association, threatened.
(k) The Company and the Association have good and marketable title to all
real property and other assets material to the business of the Company and the
Association and to those properties and assets described in the Registration
Statement and the 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 the Prospectus or are not material to the business of
the Company and the Association, taken as a whole; and all of the leases and
subleases material to the business of the Company and the Association under
which the Company or the Association hold properties, including those described
in the Registration Statement and Prospectus, are valid and binding agreements
of the Company or the Association, enforceable in accordance with their terms,
subject, as to enforceability, to Bankruptcy, insolvency, reorganization,
moratorium and other laws of general applicability relating to or affecting
creditors' rights, and to general principles of equity.
(l) The Company and the Association 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 (i) the capital stock of the Association to the Company and (ii) the Shares
to be sold by the Company as provided herein and as described in the Prospectus
and to issue and contribute the Foundation Shares, as provided herein and as
described in the Prospectus except approval or confirmation by the OTS of the
final appraisal of the Association. The consummation of the Conversion, 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 Company and the Association
and this Agreement has been validly executed and delivered by the Company and
the Association and is valid, legal and binding agreement of the Company and the
Association 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 proceeding in equity or at law, and except to the extent if any,
that the provisions of Sections 8 and 9 hereof my be unenforceable as against
public policy).
(m) The Company and the Association are not in violation of any directive
received from the FDIC or the OTS 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 FDIC and the OTS), and, except as set
forth in the Registration Statement and the Prospectus, there is no action, suit
or proceeding before
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or by any court, regulatory authority or governmental agency or body, pending
or, to the knowledge of the Company and the Association, threatened, which would
materially and adversely affect the Conversion, 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 would
result in any material adverse change in the financial condition, results of
operations or business prospects of the Company and the Association, taken as a
whole.
(n) The Association has obtained opinions of its special counsel, Xxxxxx
Xxxxx, L.L.P. with respect to the legality of the Securities issued and the
federal income tax consequences of the Conversion and has obtained an opinion of
Xxxxx Xxxxxx and Company L.L.P. ("Xxxxx Xxxxxx") regarding the Ohio income tax
consequences of the Conversion, copies of which are filed as exhibits to the
Registration Statement; the summaries of the aforesaid opinions as disclosed in
the Prospectus are accurate and complete in all material respects; and the facts
and representations upon which such opinions are based are truthful, accurate
and complete in all material respects, and neither the Association nor the
Company has taken or will take any action inconsistent therewith.
(o) The financial statements and schedules and notes related thereto which
are included in the Prospectus fairly present the financial condition, results
of operations, retained earnings and cash flows of the Association at the
respective dates thereof and for the respective periods covered thereby and
comply as to form in all material respects with the applicable accounting
requirements of the Commission, applicable accounting requirements of Title 12
of the Code of Regulations and generally accepted accounting principles. Such
financial statements have been prepared in accordance with generally accepted
accounting principles consistently applied through the periods involved except
as noted therein, 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 Association with the OTS and the FDIC.
The other financial, statistical and pro forma information and related notes
(except the appraisal data) included in the Prospectus present fairly the
information shown therein on a basis consistent with the audited and unaudited
consolidated financial statements of the Association included in the Prospectus,
and as to the pro forma adjustments, the adjustments made therein have been
properly applied on the basis described therein.
(p) Since the respective dates as of which information is given in the
Registration Statement and the Prospectus: (i) there has not been any material
adverse change in the financial condition of the Company or the Association
considered as one enterprise, or in the financial condition, results of
operations or business prospects of the Company or the Association, whether or
not arising in the ordinary course of business; (ii) except as disclosed in the
Registration Statement and Prospectus, there has not been any material increase
in the long term debt of the Association 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 retained earnings or total
assets of the Association nor has the Company or the Association issued any
securities (other than as contemplated by this Agreement) or incurred any
liability or obligation for borrowing other than in the ordinary course of
business and (iii) there have not been any material
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transactions entered into by the Company or the Association, except with respect
to those transactions entered into in the ordinary course of business.
(q) The capitalization, liabilities, assets, properties and business of the
Company and the Association conform in all material respects to the descriptions
thereof contained in the Prospectus.
(r) Neither the Company nor the Association has any material contingent
liabilities, except as set forth in the Prospectus.
(s) As of the date hereof, neither the Company nor the Association is in
violation of its articles of incorporation or bylaws or charter or bylaws, as
applicable (and the Association will not be in violation of its charter or
bylaws in capital stock form at the time of consummation of the Conversion), or
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 other instrument to which it is a party or by which it or any of its
property may be bound; the consummation of the Conversion, 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 Company and the Association and
this Agreement has been validly executed and delivered by the Company and the
Association and is the valid, legal and binding Agreement of the Company and the
Association enforceable in accordance with its terms, except as the
enforceability thereof may be limited by (i) bankruptcy, insolvency, or other
laws now or hereafter in effect affecting the enforceability of the rights of
creditors generally or the rights of creditors of federally chartered savings
associations and their holding companies, (ii) general equitable principles, and
(iii) applicable law with respect to the indemnification and/or contribution
provisions contained herein (regardless of whether such enforceability is
considered in a proceeding in equity or at law). The consummation of the
transactions herein contemplated will not: (i) conflict with or constitute a
breach of, or default under, the articles of incorporation and bylaws of the
Company or the charter and bylaws of the Association (in either mutual or
capital stock form), or any material contract, lease or other instrument to
which the Company or the Association is a party, or any applicable law, rule,
regulation or order; (ii) violate any authorization, approval, judgement,
decree, order, statute, rule or regulation applicable to the Company or the
Association, except for such violation which would not have a material adverse
effect on the financial condition and results of operations of the Company and
the Association on a consolidated basis; or (iii) with the exception of the
liquidation account established in the Conversion, result in the creation of any
material lien, charge or encumbrance upon any property of the Company or the
Association.
(t) No default exists, and no event has occurred which with notice or lapse
of time, or both, would constitute a default on the part of the Company or the
Association, 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 of agreement to which the Company or the
Association is a party or by which any of them or any of their property is bound
or affected except such defaults which would not have a material adverse effect
on the financial
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condition or results of operations of the Company and the Association 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
Company and the Association, threatened any action or proceeding wherein the
Company, the Association would be alleged to be in default thereunder under
circumstances where such action or proceeding, if determined adversely to the
Company or the Association would have a material adverse effect on the Company
and the Association, taken as a whole.
(u) Upon consummation of the Conversion and the contribution of the
Foundation Shares as described in the Prospectus, 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 of Common Stock
have been or will be issued and outstanding prior to the Closing Date referred
to in Section 2; the Shares and the Foundation Shares 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; no preemptive rights exist 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,
with respect to the Shares or the Foundation Shares; and the terms and
provisions of the Shares and the Foundation 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 Association, upon
the issuance of the Shares and the Foundation Shares, good title to the Shares
and the Foundation 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.
(v) Neither the Company nor the Association is required to obtain any
approval or notice of non-objection from any regulatory or supervisory or other
public authority in connection with the execution and delivery of this Agreement
or the issuance of the Shares and the Foundation 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 NASD.
(w) Xxxxx Xxxxxx, which has certified the consolidated financial statements
of the Association included in the Prospectus as of June 30, 1998 and 1997 and
for each of the years in the three-year period ended June 30, 1998, has advised
the Company and the Association in writing that they are, with respect to the
Company and the Association, independent public accountants within the meaning
of the Code of Professional Ethics of the American Institute of Certified Public
Accountants as required by the 1933 Act and the 1933 Act Regulations and Title
12 of the Code of Federal Regulations and Section 571.2(c)(3).
11
(x) Xxxxxx and Company, Inc. (the "Xxxxxx") which has prepared the
Association's Conversion Valuation Appraisal Report as of August 14, 1998 (as
amended, updated or supplemented) (the "Appraisal"), has advised the Company in
writing that it is independent of the Company and the Association within the
meaning of the Conversion Regulations.
(y) The Company and the Association have timely filed all required federal,
state and local tax returns for the last five years or such shorter period as
may be applicable; the Company and the Association have paid all taxes that have
become due and payable in respect of such returns, except where permitted to be
extended; and no deficiency has been asserted with respect thereto by any taxing
authority and, to the best knowledge of the Association, adequate reserves have
been made for similar future tax liabilities.
(z) The Company and the Association are 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.
(aa) To the knowledge of the Company and the Association, neither the
Company, the Association nor employees of the Company or the Association have
made any payment of funds of the Company or the Association as a loan for the
purchase of the Shares.
(bb) To the knowledge of the Company and the Association, all of the loans
represented as assets on the most recent consolidated financial statements or
consolidated selected financial information of the Company and the Association
included in the Prospectus meet or are exempt from all requirements of federal,
state or local law pertaining to lending, including without limitation, truth in
lending (including requirements of Regulations Z and 12 C.F.R. Part 226), real
estate settlement procedures, consumer credit protection, equal credit
opportunity and all disclosure laws applicable to such loans, except for
violations which, if asserted, would not result in a material adverse effect on
the financial condition, results of operations or business of the Company and
the Association, taken as a whole.
(cc) Prior to the Conversion, the Association was not authorized to issue
shares of capital stock and neither the Company nor the Association has: (i)
issued any securities within the last 18 months (except for notes to evidence
other Association 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 securities;
(iii) entered into a financial or management consulting agreement except as
contemplated hereunder and except for the Letter Agreement set forth in
Exhibit A; and (iv) engaged any intermediary between Xxxx and the Company and
the Association in connection with the offering of the Shares, and no person is
being compensated in any manner for such service.
12
(dd) The Company and the Association have not relied upon Xxxx or Xxxx'x
counsel or other advisors for any legal, tax or accounting advice in connection
with the Conversion.
(ee) The Company is not required to be registered under the Investment
Company Act of 1940, as amended.
(ff) At the Closing Date referred to in Section 2, the Foundation will be
duly incorporated and validly existing as a non-stock corporation in good
standing under the laws of the State of Delaware with corporate power and
authority to own, lease and operate its properties and to conduct its business
as described in the Prospectus; the Foundation will not be a savings and loan
holding company within the meaning of the HOLA as a result of the issuance of
Foundation Shares to it in accordance with the terms of the Plan and in the
amounts as described in the Prospectus; no approvals are required to establish
the Foundation and to contribute the shares of Common Stock thereto as described
in the Prospectus other than those received from the OTS; except as specifically
disclosed in the Prospectus and the Proxy Statement, there are no agreements
and/or understandings, written or oral, between the Company and/or the
Association and the Foundation with respect to the control, directly or
indirectly, over the voting and the acquisition or disposition of the Foundation
Shares.
Any certificates signed by an officer of the Company or the Association
pursuant to the conditions of this Agreement and delivered to Xxxx or its
counsel that refers to this Agreement shall be deemed to be a representation and
warranty by the Company or the Association to Xxxx 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 XXXX.
--------------------------------------
(a) Xxxx represents and warrants to the Company and the Association that:
(i) Xxxxx, Xxxxxxxx & Xxxxx, Inc. 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 Association and the Company hereunder.
(ii) 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 Xxxx,
and this Agreement has been duly and validly executed and
delivered by Xxxx and is the legal, valid and binding agreement
of Xxxx, enforceable in accordance with its terms, except as may
be limited by Bankruptcy, insolvency or other laws affecting the
enforceability of the rights of creditors generally and judicial
limitations on the right of specific performance and except as
the enforceability of indemnification and contribution provisions
may be limited by applicable securities laws.
13
(iii) Each of Xxxx 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.
(iv) The execution and delivery of this Agreement by Xxxx, 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 event which with
notice or lapse of time or both would constitute a default)
under, the articles of incorporation of Xxxx or any agreement,
indenture or other instrument to which Xxxx is a party or by
which it or its property is bound.
(v) No approval of any regulatory or supervisory or other public
authority is required in connection with Xxxx'x execution and
delivery of this Agreement, except as may have been received.
(vi) 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 best knowledge of Xxxx, pending or threatened, which might
materially adversely affect Xxxx'x performance under this
Agreement.
SECTION 5.1 COVENANTS OF THE COMPANY AND THE ASSOCIATION. The Company and
--------------------------------------------
the Association hereby jointly and severally covenant with Xxxx 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 Xxxx and its counsel an opportunity to
review such amendment or supplement or file any amendment or supplement to which
amendment or supplement Xxxx or its counsel shall reasonably object.
(b) The Association will not, at any time after the Conversion Application
is approved by the OTS, file any amendment or supplement to such Conversion
Application without providing Xxxx and its counsel an opportunity to review such
amendment or supplement or file any amendment or supplement to which amendment
or supplement Xxxx or its counsel shall reasonably object.
(c) The Company will not, at any time before the Holding Company
Application is approved by the OTS, file any amendment or supplement to such
Holding Company Application without providing Xxxx and its counsel an
opportunity to review such amendment or supplement or file any amendment or
supplement to which amendment or supplement Xxxx or its counsel shall reasonably
object.
14
(d) The Company and the Association will use their best efforts to cause
any post-effective amendment to the Registration Statement to be declared
effective by the Commission and any post-effective amendment to the Conversion
Application to be approved by the OTS and will immediately upon receipt of any
information concerning the events listed below notify Xxxx: (i) when the
Registration Statement, as amended, has become effective; (ii) when the
Conversion Application, as amended, has been approved by the OTS; (iii) when the
Holding Company Application, as amended, has been approved by the OTS; (iv) of
any comments from the Commission, the OTS or any other governmental entity with
respect to the Conversion or the transactions contemplated by this Agreement;
(v) of the request by the Commission, the OTS or any other governmental entity
for any amendment or supplement to the Registration Statement, the Conversion
Application, or the Holding Company Application or for additional information;
(vi) 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 Association under the Conversion Regulations, or other applicable law, or
the threat of any such action; (vii) the issuance by the Commission, the OTS or
any state authority of any stop order suspending the effectiveness of the
Registration Statement or the approval of the Conversion Application or Holding
Company Application, or of the initiation or threat of initiation or threat of
any proceedings for any such purpose; or (viii) of the occurrence of any event
mentioned in paragraph (i) below. The Company and the Association will make
every reasonable effort (i) to prevent the issuance by the Commission, the OTS,
or any state authority of any such order and, if any such order shall at any
time be issued, (ii) to obtain the lifting thereof at the earliest possible
time.
(e) The Company and the Association will deliver to Xxxx and to its counsel
two conformed copies of the Registration Statement, the Conversion Application,
and the Holding Company Application, as originally filed and of each amendment
or supplement thereto, including all exhibits. Further, the Company and the
Association will deliver such additional copies of the foregoing documents to
counsel to Xxxx as may be required for any NASD filings.
(f) The Company and the Association will furnish to Xxxx, 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 Xxxx 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 Xxxx 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 Xxxx.
(g) The Company and the Association will comply with any and all material
terms, conditions, requirements and provisions with respect to the Conversion
and the establishment and operation of the Foundation imposed by the Commission,
the OTS, the Conversion Regulations, or the HOLA, 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
15
is required to be delivered, the Company and the Association will comply, at
their own expense, with all material requirements imposed upon them by the
Commission, the OTS, the Conversion Regulations, or the HOLA, and by the 1993
Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulations, in
each case as from time to time in force, so far as necessary to permit the
continuance of sales or dealing in shares of Common Stock during such period in
accordance with the provisions hereof and the Prospectus. The Company and the
Association shall use their best efforts to ensure that the Foundation submits
within the timeframes required by applicable law a request to the Internal
Revenue Service to be recognized as a tax-exempt organization under Section
501(c)(3) of the Internal Revenue Code of 1986, as amended (the "Code"); the
Company and the Association will take no action which will result in the
possible loss of the Foundation's tax-exempt status; and neither the Company nor
the Association will contribute any additional assets to the Foundation until
such time that such additional contributions will be deductible for federal and
state income tax purposes.
(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
Company or the Association shall occur, as a result of which it is necessary or
appropriate, in the opinion of counsel for the Company and the Association 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 Company and the Association will, at their expense, prepare and file with
the Commission, the OTS and furnish to Xxxx a reasonable number of copies of an
amendment or amendments of, or a supplement or supplements to, the Registration
Statement and Prospectus (in form and substance satisfactory to Xxxx and its
counsel after a reasonable time for review) which will amend or supplement the
Registration Statement and 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 Company and the
Association each will timely furnish to Xxxx such information with respect to
itself as Xxxx may from time to time reasonably request.
(i) At the Closing Date referred to in Section 2, the Plan will have been
adopted by the Board of Directors of the Company and the Association and the
offer and sale of the Shares and the contribution of the Foundation Shares will
have been conducted in all material respects in accordance with the Plan, the
Conversion Regulations, the HOLA and all other applicable laws, regulations,
decisions and orders, including all terms, conditions, requirements and
provisions precedent to the Conversion imposed upon the Company or the
Association by the Commission, OTS, or any other regulatory authority and in the
manner described in the Prospectus.
(j) Upon completion of the sale by the Company of the Shares contemplated
by the Prospectus, (i) the Association will be converted pursuant to the Plan to
a federally chartered stock savings and loan association, (ii) all of the
authorized and outstanding capital stock of the Association will be owned by the
Company, and (iii) the Company will have no direct subsidiaries other than the
Association. The Conversion will have been effected in all material respects in
16
accordance with all applicable statutes, regulations, decisions and orders; and,
except with respect to the filing of certain post-sale, post-Conversion reports,
and documents in compliance with the 1933 Act Regulations, and all terms,
conditions, requirements and provisions with respect to the Conversion (except
those that are conditions subsequent) imposed by the Commission and the OTS,
if any, will have been complied with by the Company and the Association 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.
(k) The Company and the Association will take all necessary actions, in
cooperation with Xxxx, and furnish to whomever Xxxx 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 to be offered and sold as Xxxx and the Company and the
Association may reasonably agree upon; provided, however, that the Company shall
not be obligated to file any general consent to service of process or to qualify
to do business in any jurisdiction in which it is not so qualified. 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.
(l) The liquidation account for the benefit of Eligible Account Holders and
Supplemental Eligible Account Holders will be duly established and maintained in
accordance with the requirements of the OTS and such Eligible Account Holders
and Supplemental Eligible Account Holders who continue to maintain their savings
accounts in the Association will have an inchoate interest in their pro rata
portion of the liquidation account which shall have a priority superior to that
of the holders of the Common Shares in the event of a complete liquidation of
the Association.
(m) The Company and the Association will not sell or issue, contract to
sell or otherwise dispose of, for a period of 180 days after the Closing Date,
without Xxxx'x prior written consent, any shares of Common Stock other than the
Shares or the Foundation Shares or other than in connection with any plan or
arrangement described in the Prospectus
(n) The Company shall register its Common Stock under Section 12(b) of the
1934 Act concurrent with the Offering pursuant to the Plan and shall request
that such registration be effective no later than upon completion of the
Conversion. For a period of not less than three (3) years following Conversion,
the Company shall not deregister the shares or such shorter period as may be
required by the OTS.
(o) During the period during which the Company's Common Stock is registered
under the 1934 Act or for three years from the date hereof, whichever period is
greater, the Company will furnish to its stockholders 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, stockholders'
equity and cash flows of the Company and its subsidiaries as at the end of and
for such
17
year, certified by independent public accountants in accordance with Regulation
S-X under the 1933 Act and the 1934 Act).
(p) During the period of three years from the date hereof, the Company will
furnish to Xxxx: (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, 10-Q 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 stockholders 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 Association as Xxxx
may reasonably request; and (iii) from time to time, such other nonconfidential
information concerning the Company or the Association as Xxxx may reasonably
request.
(q) The Company and the Association 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."
(r) Other than as permitted by the Conversion Regulations, the 1933 Act,
the 1933 Act 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 Association will distribute any prospectus or other offering
material in connection with the offer and sale of the Shares.
(s) The Company will use its best efforts to (i) encourage and assist a
market maker to establish and maintain a market for the Shares and (ii) list the
Shares on a national or regional securities exchange or on the Nasdaq National
Market of the Nasdaq Stock Market effective on or prior to the Closing Date.
(t) The Association 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 Association'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 cancelled
in accordance with the Plan and as described in the Prospectus. The Association
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 Association 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.
18
(u) Prior to the Closing Date, the Holding Company Application shall have
been approved by the OTS. The Company will promptly take all necessary action
to register as a savings and loan holding company under the HOLA within 90 days
of the Closing Date.
(v) The Company and the Association will take such actions and furnish such
information as are reasonably requested by Xxxx in order for Xxxx to ensure
compliance with the NASD's "Interpretation Relating to Free Riding and
Withholding."
(w) The Association will not amend the Plan of Conversion without notifying
Xxxx prior thereto.
(x) The Company shall assist Xxxx, if necessary, in connection with the
allocation of the Shares in the event of an oversubscription and shall provide
Xxxx with any information necessary in allocating the Shares in such event and
such information shall be accurate and reliable in all material respects.
(y) Prior to the Closing Date, the Company and the Association will inform
Xxxx of any event or circumstances of which it is aware as a result of which the
Registration Statement, the Conversion Application 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.
(z) The facts and representations provided to Xxxxxx Xxxxx, L.L.P. by the
Bank and the Company and upon which Xxxxxx Xxxxx, L.L.P. will base its opinion
under Section 7(c)(1) are and will be truthful, accurate and complete.
(aa) The Company and the Association shall use their best efforts to ensure
that the Foundation submits within the timeframes required by applicable law a
request to the Internal Revenue Service to be recognized as a tax-exempt
organization under Section 501(c)(3) of the Internal Revenue Code of 1986, as
amended (the "Code"); the Company and the Association will take no action which
will result in the possible loss of the Foundation's tax-exempt status; and
neither the Company nor the Association will contribute any additional assets to
the Foundation until such time that such additional contributions will be
deductible for federal and state income tax purposes.
SECTION 5.2 COVENANTS OF XXXX. Xxxx hereby covenants with the Company and
-----------------
the Association as follows:
(a) During the period when the Prospectus is delivered, Xxxx will comply,
in all material respects and at its own expense, with all requirements imposed
upon it by the Commission and the NASD, including to the extent applicable, by
the 1933 Act and the 1934 Act and the rules and regulations promulgated
thereunder.
19
(b) Xxxx will distribute copies of the Prospectus and Sales Information in
connection with the sales of the Common Stock only in accordance with NASD and
Commission regulations, the 1933 Act and the rules and regulations promulgated
thereunder.
SECTION 6. PAYMENT OF EXPENSES. Whether or not the Conversion is
-------------------
completed or the sale of the Shares by the Company is consummated, the Company
and the Association jointly and severally agree to pay or reimburse Xxxx for:
(a) all filing fees in connection with all filings with the NASD; (b) any stock
issue or transfer taxes which may be payable with respect to the sale of the
Shares; (c) all reasonable expenses of the Conversion, including but not limited
to, the Company's and the Association's attorneys' 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 Conversion and (d) all reasonable out-of-pocket expenses incurred by Xxxx
not to exceed $15,000, and all legal fees not to exceed $_______. Such out-of-
pocket expenses include, but are not limited to, travel, communications and
postage. However, such out-of-pocket expenses do not include expenses incurred
with respect to the matters set forth in (a) and (b) above. In the event the
Company is unable to sell a minimum of 8,840,000 Shares or the Conversion is
terminated or otherwise abandoned, the Company and the Association shall
reimburse Xxxx in accordance with Section 2 hereof.
SECTION 7. CONDITIONS TO XXXX'X OBLIGATIONS. Xxxx'x obligations
--------------------------------
hereunder, as to the Shares to be issued at the Closing Date, are subject, to
the extent not waived by Xxxx, to the condition that all representations and
warranties of the Company and the Association 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 and the Association
shall have performed all of their obligations hereunder to be performed on or
before such dates, and to the following further conditions:
(a) At the Closing Date, the Company and the Association shall have
conducted the Conversion in all material respects in accordance with the Plan,
the Conversion Regulations and all other applicable laws, regulations, decisions
and orders, including all terms, conditions, requirements and provisions
precedent to the Conversion imposed upon them by the OTS.
(b) The Registration Statement shall have been declared effective by the
Commission, and the Conversion Application approved by the OTS not later than
5:30 p.m. on the date of this Agreement, or with Xxxx'x consent at a later time
and date; and at the Closing Date, the Holding Company Application shall have
been approved by the OTS and 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 Conversion shall have been issued or proceedings therefore
initiated or, to the Company's or the Association's knowledge threatened by the
Commission, the OTS or any other federal or state authority.
20
(c) At the Closing Date, Xxxx shall have received:
(1) The favorable opinion, dated as of the Closing Date and addressed
to Xxxx and for its benefit, of Xxxxxx Xxxxx, L.L. P., special
counsel for the Company and the Association, in form and
substance to the effect that:
(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the
laws of the State of Delaware and has full corporate
power and authority to own, lease and operate its
properties and to conduct its business as described in
the Registration Statement and the Prospectus and to
enter into and perform its obligations under this
Agreement. The Company is duly qualified as a foreign
corporation to transact business and is in good
standing in each jurisdiction where it owns or leases
any material properties or conducts any material
business as described in the Registration Statement and
the Prospectus, unless the failure to so qualify would
not have a material adverse effect on the consolidated
financial condition, results of operations or business
of the Company.
(ii) The Association is organized and is validly existing as
a federally chartered savings and loan association in
mutual form of organization and upon the Conversion
will become an organized and validly existing federally
chartered savings Association in 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 Prospectus. All of
the outstanding capital stock of the Association will
be duly authorized and, upon payment therefor, will be
validly issued, fully paid and non-assessable and, to
the best of such counsel's knowledge, will be owned by
the Company, free and clear of any liens, encumbrances,
claims or other restrictions.
(iii) The Association is a member of the FHLB-Cincinnati. The
Association is an insured depository institution under
the provisions of Section 4(a) of the FDI Act, as
amended, and no proceedings for the termination or
revocation of such insurance are, to the best of such
counsel's knowledge, pending or threatened; the
description of the liquidation account as set forth in
the Prospectus under the caption "The Conversion-
Liquidation Rights" to the extent that such
21
information constitutes matters of law and legal
conclusions has been reviewed by such counsel and is
accurate in all material respects.
(iv) Upon consummation of the Conversion, and issuance of
the Foundation Shares to the Foundation immediately
upon completion thereof, subject to compliance with all
conditions imposed upon the Foundation and the
contribution thereto by the OTS under the terms of the
OTS's approval of the Conversion, the authorized,
issued and outstanding capital stock of the Company
will be within the range set forth in the Prospectus
under the caption "Capitalization," and except for
shares issued upon incorporation of the Company, which
such shares will be canceled upon the successful
consummation of the Conversion, no shares of Common
Stock have been issued prior to the Closing Date; at
the time of the Conversion, the Shares and the
Foundation Shares will have been duly and validly
authorized for issuance, and when the Shares have been
issued and delivered by the Company pursuant to the
Plan against payment of the consideration calculated as
set forth in the Plan and the Prospectus, and when the
Foundation Shares have been issued and contributed by
the Company pursuant to the Gift Instrument will be
duly and validly issued and fully paid and non-
assessable; the issuance of the Shares and the
Foundation Shares is not subject to statutory
preemptive rights (except for Subscription Rights
granted pursuant to the Plan) and the terms and
provisions of the Shares and the Foundation Shares
conform in all material respects to the description
thereof contained in the Prospectus. To the best of
such counsel's knowledge, upon the issuance of the
Shares and the Foundation Shares, good title to the
Shares and the Foundation 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.
(v) The OTS has approved the Holding Company Application
and, to the best of such counsel's knowledge, no action
is pending or threatened respecting the Holding Company
Application or the acquisition by the Company of all of
the Association's issued and outstanding capital stock;
the Holding Company Application complies as to form in
all material respects with the HOLA.
22
(vi) The OTS has approved the Conversion Application and, to
the best of such counsel's knowledge, no action is
pending or threatened respecting the OTS's approval of
the Conversion Application; the Conversion Application
complies as to form in all material respects with the
Conversion Regulations except in such instances wherein
the OTS has waived such compliance.
(vii) The execution and delivery of the Agreement and the
consummation of the transactions contemplated hereby,
including the establishment of the Foundation and the
issuance and contribution thereto of the Foundation
Shares pursuant to the Gift Instrument, have been duly
and validly authorized by all necessary action on the
part of the Company and the Association; and the
Agreement is a valid and binding obligation of the
Company and the Association, enforceable in accordance
with its terms, except as the enforceability thereof
may be limited by (i) bankruptcy, insolvency, or other
laws now or hereafter in effect affecting the
enforceability of the rights of creditors generally or
the rights of creditors of federally chartered savings
and loan associations and their holding companies, (ii)
general principles of equity, (iii) applicable law with
respect to the indemnification and/or contribution
provisions contained herein, (regardless of whether
such enforceability is considered in a proceeding in
equity or at law); and such action will not result in
any violation of the provisions of the articles of
incorporation, bylaws or charter, as applicable, of the
Company or the Association or any applicable federal
law, act, or regulation.
(viii) The Plan, including the establishment of and the
issuance of the Foundation Shares to the Foundation,
has been duly adopted and approved by the required vote
of the directors of the Company and the Association
and, based upon the certificate of the inspector of
election, approved by the voting members of the
Association.
(ix) Subject to the satisfaction of the conditions to the
OTS' approval of the Conversion, no further approval,
authorization, consent or other order of any public
board or body is required in connection with the
execution and delivery of the Agreement, the issuance
of the Shares, the establishment of and issuance of the
Foundation Shares to the
23
Foundation and the consummation of the Conversion,
except as may be required under the securities or blue
sky laws of various jurisdictions (as to which no
opinion need be rendered).
(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, to the best of such
counsel's knowledge, proceedings therefor pending or
threatened by the Commission.
(xi) At the time the Conversion Application, including the
Prospectus contained therein, was approved by the OTS,
the Conversion Application, including the Prospectus
contained therein, complied as to form in all material
respects with the requirements of the Conversion
Regulations, federal law and all applicable rules and
regulations promulgated thereunder (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 or omitted therefrom, 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 or omitted therefrom, as to which
no opinion need be rendered) complied as to form in all
material respects with the requirements of the 1933
Act, the 1933 Act Regulations, the Conversion
Regulations and federal law.
(xiii) The terms and provisions of the Shares of the Company
conform, in all material respects, to the description
thereof contained in the Registration Statement and
Prospectus, and the form of certificate used to
evidence the Shares complies with applicable law.
24
(xiv) The descriptions in the Conversion Application, the
Registration Statement and the Prospectus of the
contracts, indentures, mortgages, loan agreements,
notes, leases or other instruments filed as exhibits
thereto are accurate in all material respects and
fairly present the information required to be shown.
(xv) To the best of such counsel's knowledge, the Company
and the Association have conducted the Conversion and
the establishment and funding of the Foundation in all
material respects in accordance with applicable
requirements of the Plan, the Conversion Regulations,
HOLA and all other applicable regulations, decisions
and orders thereunder, including all material
applicable terms, conditions, requirements and
conditions precedent to the Conversion imposed upon the
Company or the Association by the OTS and, to the best
of such counsel's knowledge, no person has sought to
obtain review of the final action of the OTS in
approving or not objecting to the Conversion
Application (which includes the Plan which provides for
the establishment of the Foundation) or of the OTS in
approving the Holding Company Application.
(xvi) To the best of such counsel's knowledge, the Company
and the Association have obtained all material
licenses, permits and other governmental authorizations
for the conduct of their businesses and to the best of
such counsel's knowledge all such licenses, permits and
other governmental authorizations are in full force and
effect, and the Company and the Association are in all
material respects complying therewith, except where the
failure to have such licenses, permits and other
governmental authorizations or the failure to be in
compliance therewith would not have a material adverse
affect on the business or operations of the Association
and the Company, taken as a whole.
(xvii) The Company's certificate of incorporation and bylaws
comply in all material respects with the Delaware
General Corporation Law. The Association's charter and
bylaws in mutual form and, upon the completion of the
Conversion, in stock form, comply in all material
respects with the HOLA and the regulation promulgated
thereunder.
25
(xviii) To the best of such counsel's knowledge, neither the
Company nor the Association 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.
(xix) The information in the Prospectus under the captions
"Risk Factors," "Federal and State Taxation," (with
respect to Federal taxation only) "Regulation and
Supervision," "The Conversion," "Restrictions on
Acquisition of the Company and the Association,"
"Description of Capital Stock of the Company" and
"Description of Capital Stock of the Association" 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 Conversion process under the
caption "The Conversion" in the Prospectus has been
reviewed by such counsel and is in all material
respects correct. The discussion of Delaware and
Federal statutes or regulations described or referred
to in the Prospectus are accurate summaries. The
information regarding the federal tax opinion under the
caption "The Conversion-Tax Effects" has been reviewed
by such counsel and constitutes an accurate summary of
the opinion rendered by such counsel to the Company and
the Association with respect to such matters subject to
the qualifications and limitations noted therein.
(xx) The Foundation has been duly incorporated and is
validly existing as a non-stock corporation in good
standing under the laws of the State of Delaware with
corporate power and authority to own, lease and operate
its properties and to conduct its business as described
in the Prospectus; the Foundation is not a savings and
loan holding company within the meaning of the HOLA as
a result of the issuance of shares of Common Stock to
it in accordance with the terms of the Plan and in the
amounts as described in the Prospectus; no approvals
are required to establish the Foundation and to
contribute the shares of Common Stock thereto as
described in the Prospectus other than those set forth
in any written notice or order of approval of the
Conversion, Conversion Application or the Holding
Company Application copies of which were provided to
Xxxx prior to the Closing Date.
26
In rendering such opinion, such counsel may rely as to all matters of fact
on certificates of officers or directors of the Company and the Association and
certificates of public officials, and as to state law matters, such counsel may
rely upon the opinion of Ohio counsel and their opinion.
In addition, such counsel shall provide a letter to Xxxx stating that
nothing has come to their attention that would lead them to believe that the
Conversion Application and the Registration Statement, or any amendment or
supplement thereto (other than the financial statements, the notes thereto, and
other tabular, financial, statistical and appraisal data included therein or
omitted therefrom as to which no statement need be made), as of the date of
approval or effectiveness, as the case may be, and the Prospectus, as of its
date and as of the Closing Date, 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.
(2) The favorable opinion, dated as of the Closing Date and addressed
to Xxxx and for their benefit, of [LOCAL COUNSEL], the
Association's local counsel, in form and substance to the effect
that:
(i) to the best of such counsel's knowledge, the Company and the
Association have good and marketable title to all properties
and assets which are material to the business of the Company
and the Association 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 in relation to the business of the Company and the
Association considered as one enterprise;
(ii) to the best of such counsel's knowledge, all of the leases
and subleases material to the business of the Company and
the Association under which the Company and the Association
hold properties, as described in the Registration Statement
and Prospectus, are in full force and effect;
(iii) the Association is duly qualified to transact business 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, or the business,
operations or income of the Association;
(iv) to the best of such counsel's knowledge, the execution and
delivery of the Agreement, the occurrence of the obligations
therein set forth
27
and the consummation of the transactions contemplated
therein will not conflict with or constitute a breach of, or
default under, or result in the creation or imposition of
any lien, charge or encumbrance upon any property or assets
of the Company or the Association pursuant to any contract,
indenture, mortgage, loan agreement, note, lease or other
instrument described in the Prospectus or filed as an
exhibit to the Registration Statement to which the Company
or the Association is a party or by which any of them may be
bound, or to which any of the property or assets of the
Company or the Association is subject (other than the
establishment of a liquidation account) and such action will
not result in any violation of any court order, writ,
injunction or decree naming the Company or the Association;
(v) to the best of such counsel's knowledge, the Company and the
Association have obtained all material licenses, permits and
other governmental authorizations currently required for the
conduct of their businesses and to the best of such
counsel's knowledge, all such licenses, permits and other
governmental authorizations are in full force and effect,
and the Company and the Association are in all material
respects complying therewith, except where the failure to
have such licenses, permits and other governmental
authorizations or the failure to be in compliance therewith
would not have a material adverse affect on the business or
operations of the Association and the Company, taken as a
whole;
(vi) there are no legal or governmental proceedings pending or to
the best of such counsel's knowledge, threatened which are
required to be disclosed in the Registration Statement and
Prospectus, other than those disclosed therein, and to the
best of such counsel's knowledge, all pending legal and
governmental proceedings to which the Company and the
Association is a party or of which any of their property is
the subject, which are not described in the Registration
Statement and the Prospectus, including ordinary routine
litigation incidental to the Company's or the Association's
business, are, considered in the aggregate, not material;
and
(vii) neither the Company nor the Association is in violation of
its articles of incorporation, bylaws or charter nor, to the
best of such counsel's knowledge, in default (nor has any
event occurred which, with notice or lapse of time or both,
would constitute a default) in the performance or observance
of any obligation, agreement, covenant or condition
contained in any material contract, indenture, mortgage,
loan agreement, note, lease or other instrument to which the
28
Company or the Association is a party or by which the
Company or the Association or any of their property may be
bound (in any respect that would have a material adverse
effect upon the financial condition, results of operations
or business of the Company and the Association, taken as a
whole).
(3) The favorable opinion, dated as of the Closing Date, of Elias,
Matz, Xxxxxxx & Xxxxxxx L.L.P., Xxxx'x counsel, with respect to
such matters as Xxxx may reasonably require. Such opinion may
rely upon the opinions of counsel to the Company and the
Association, and as to matters of fact, upon certificates of
officers and directors of the Company and the Association
delivered pursuant hereto or as such counsel shall reasonably
request.
(d) At the Closing Date, Xxxx shall receive a certificate of the Chief
Executive Officer and the Chief Financial Officer of the Company and a
certificate of the Chief Executive Officer and the Chief Financial Officer of
the Association, both dated as of such Closing Date, to the effect that: (i)
they have reviewed 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 material adverse change in the financial condition,
or in the earnings, capital, properties or business of the Company and the
Association has occurred and, to their knowledge, no other event has occurred,
which should have been set forth in an amendment or supplement to the Prospectus
which has not been so set forth, 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 Prospectus, there has been no material
adverse change in the financial condition, results of operations or business
prospects of the Company and the Association, independently, or of the Company
and the Association 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 a though expressly made at
and as of the Closing Date; (v) the Company and the Association 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 Conversion; (vi) no stop order suspending the effectiveness of the
Registration Statement is pending or, to the best knowledge of the Company or
the Association, threatened by the Commission or any state authority; (vii) no
order suspending the Offering, the Conversion, the acquisition of all of the
shares of the Association by the Company or the effectiveness of the Prospectus
has been issued and no proceedings for that purpose are pending or, to the best
knowledge of the Company or the Association, threatened by the OTS, the FDIC,
the Commission or any other federal or state authority; and (viii) to the best
knowledge of the Company or the Association, no person has sought to obtain
review of the final action of the OTS approving the Plan.
29
(e) Prior to and at the Closing Date: (i) in the reasonable opinion of
Xxxx, there shall have been no material adverse change in the financial
condition, or in the earnings or business of the Association independently, or
of the Company or the Association 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; (iii) the Company or the
Association 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 Xxxx) or which materially and adversely would affect the
business, operations or financial condition or income of the Company and the
Association considered as one enterprise; (iv) the Company and the Association
shall not have been in material default (nor shall an event have occurred which,
with notice or lapse of time or both, would constitute a default) under any
material provision of any agreement or instrument relating to any outstanding
indebtedness; (v) no action, suit or proceedings, 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 or the Association,
threatened against the Company or the Association or affecting any of their
properties wherein an unfavorable decision, ruling or finding would materially
and adversely affect the business operations, financially condition or income of
the Company and the Association considered as one enterprise; and (vi) the
Shares have been qualified or registered for offering and sale or exempted
therefore under the securities or blue sky laws of the jurisdictions as Xxxx
shall have requested and as agreed to by the Company and the Association.
(f) Concurrently with the execution of this Agreement, Xxxx shall receive a
letter from Xxxxx Xxxxxx dated as of the date of the Prospectus and addressed to
Xxxx: (i) confirming that Xxxxx Xxxxxx is a firm of independent public
accountants within the meaning of the 1933 Act and stating in effect that in
Xxxxx Chizek's opinion the consolidated financial statements of the Association
as of June 30, 1997 and 1998 and for each of the three years in the period ended
June 30, 1998, as are included in the Prospectus and covered by its opinion
included therein, comply as to form in all material respects with the applicable
accounting requirements and related published rules and regulations of the 1933
Act; (ii) a statement from Xxxxx Xxxxxx 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 consolidated financial statements of the Association prepared by the
Association, a reading of the minutes of the meetings of the Board of Directors
and members of the Association and consultations with officers of the
Association responsible for financial and accounting matters, nothing came to
their attention which caused them to believe that: (A) the unaudited
consolidated financial statements included in the Prospectus, are not in
conformity with the 1933 Act and generally accepted accounting principles
applied on a basis substantially consistent with that of the audited
consolidated financial statements included in the Prospectus; or (B) during the
period from the date of the latest unaudited consolidated financial statements
included in the Prospectus to a specified date not more than three business days
prior to the date of the Prospectus, except as has been described in the
Prospectus, other than normal deposit fluctuations, there was any material
increase in consolidated long-term debt, short-term debt, real estate owned or
real estate acquired by deed in lieu of foreclosure by the Association; or (C)
there was any decrease in consolidated total assets, allowance for estimated
30
losses on loans, total savings deposits or capital of the Association at the
date of such letter as compared with amounts shown in the latest unaudited
consolidated statement of condition included in the Prospectus; and (iii) a
statement from Xxxxx Xxxxxx 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 (f), they have compared with the
general accounting records of the Association, which are subject to the internal
controls of the Association, the accounting system and other data prepared by
the Association, directly from such accounting records, to the extent specified
in such letter, such amounts and/or percentages set forth in the Prospectus as
Xxxx may reasonably request; and they have reported on the results of such
comparisons.
(g) At the Closing Date, Xxxx shall receive a letter from Xxxxx Xxxxxx
dated the Closing Date, addressed to Xxxx, confirming the statements made by
them in the letter delivered by it pursuant to subsection (f) of this Section 7,
the "specified date" referred to in clause (ii) of subsection (f) thereof to be
a date specified in such letter, which shall not be more than three business
days prior to the Closing Date.
(h) At the Closing Date, Xxxx shall receive a letter from Xxxxxx, dated the
date thereof and addressed to counsel for Xxxx, (i) confirming that said firm is
independent of the Company and the Association and is experienced and expert in
the area of corporate appraisals and (ii) stating that its opinion of the
aggregate pro forma market value of the Company and the Association expressed in
its Appraisal dated as of August 14, 1998, and most recently updated, remains in
effect.
(i) The Company and the Association shall not have sustained since the date
of the latest audited financial statements included in the Prospectus any
material loss or interference with their businesses 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 or contemplated in the Registration Statement and Prospectus.
(j) At or prior to the Closing Date, Xxxx shall receive: (i) a copy of the
letter from the OTS approving the Conversion Application and authorizing the use
of the Prospectus; (ii) a copy of the order from the Commission declaring the
Registration Statement effective; (iii) a certificate from the OTS evidencing
the existence of the Association in mutual form; (iv) certificates of good
standing from the State of Delaware evidencing the good standing of the Company;
(v) a certificate from the FDIC evidencing the Association's insurance of
accounts; (vi) a certificate of the FHLB-Cincinnati evidencing the Association's
membership thereof; and (vii) a copy of the letter from the OTS approving the
Company's Holding Company Application;
(k) As soon as available after the Closing Date, Xxxx shall receive, upon
request, a copy of the Association's federal stock charter.
(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 or in the over-the-counter market, or quotations
halted generally on the Nasdaq Stock Market or minimum
31
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 Associations or federal or state
savings associations or a general moratorium on the withdrawal of deposits from
commercial Associations or federal savings associations declared by federal
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 decline, in Xxxx'x 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 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 and the
issuance of the Foundation 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 Conversion and the sale of the Shares and the issuance of
the Foundation Shares as herein contemplated shall be satisfactory in form and
substance to Xxxx and its counsel.
SECTION 8. INDEMNIFICATION.
----------------
(a) The Company and the Association jointly and severally agree to
indemnify and hold harmless Xxxx, its officers, directors, agents, servants and
employees and each person, if any, who controls Xxxx 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 reasonable and documented settlement expenses), joint or several, that Xxxx
or any of them may suffer or to which Xxxx and any such persons may become
subject under all applicable federal or state laws or otherwise, and to promptly
reimburse Xxxx and any such persons upon written demand for any expense
(including reasonable and documented fees and disbursements of counsel) incurred
by Xxxx 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 Conversion Application (or any amendment or supplement thereto),
the Holding Company Application or any blue sky application or other instrument
or document executed by the Company or the Association or based upon written
information supplied by the Company or the Association 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 agents, under the securities laws thereof (collectively, the "Blue
Sky Application"), or any application or other document,
32
advertisement, oral statement or communication ("Sales Information") prepared,
made or executed by or on behalf of the Company or the Association with their
consent or based upon written or oral information furnished by or on behalf of
the Company or the Association, 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 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 Conversion Application (or any amendment or supplement
thereto), any Blue Sky Application or Sales Information or other documentation
distributed in connection with the Conversion; 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 Xxxx'x
gross negligence, bad faith or willful misconduct (as determined in a final
judgment by a court of competent jurisdiction) or upon any untrue material
statement or alleged untrue material statements 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 Conversion Application, any Blue Sky Application or
Sales Information made in reliance upon and in conformity with information
furnished in writing to the Company or the Association by Xxxx regarding Xxxx or
statistical information regarding national averages provided by Xxxx for the
Sales Information and provided further that such indemnification shall be to the
----------------
extent permitted by Sections 23A and 23B of the Federal Reserve Act, as amended.
(b) Xxxx agrees to indemnify and hold harmless the Company and the
Association, their directors and officers and each person, if any, who controls
the Company or the Association 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 reasonable and
documented settlement expenses), joint or several, which it, or any of them, may
suffer or to which it, or any of them may become subject under all applicable
federal and state laws or otherwise, and to promptly reimburse the Company, the
Association, and any such persons upon written demand for any expenses
(including reasonable and documented fees and disbursements of counsel) incurred
by it, 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 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 Conversion Application (or any amendment or supplement thereto) or
the preliminary or final Prospectus (or any amendment or supplement thereto), or
are based upon the omission or alleged omission to state in any of the foregoing
documents a material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; provided, however, that Xxxx'x 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
33
Registration Statement (or any amendment or supplement thereto), the preliminary
or final Prospectus (or any amendment or supplement thereto) or the Conversion
Application (or any amendment or supplement thereto), or Sales Information in
reliance upon and in conformity with information furnished in writing to the
Company or the Association by Xxxx regarding Xxxx or statistical information
regarding national averages provided by Xxxx for the Sales Information.
Provided, that it is agreed and understood that the only information furnished
in writing to the Company or the Association by the Agent regarding the Agent is
set forth in the Prospectus under the caption "The Conversion Marketing and
Underwriting 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 assumed 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
shall the indemnifying parties be liable for the reasonable 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, 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.
(d) The agreements contained in this Section 8 and in Section 9 hereof and
the representations and warranties of the Company and the Association set forth
in this Agreement shall remain operative and in full force and effect regardless
of: (i) any investigation made by or on behalf of Xxxx or its officers,
directors or controlling persons, agents or employees or by or on behalf of the
Company or the Association or any officers, directors or controlling persons,
agents or employees of the Company or the Association; (ii) delivery of and
payment hereunder for the Shares; or (iii) any termination of this Agreement.
SECTION 9. CONTRIBUTION. In order to provide for just and equitable
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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 Association or Xxxx, the Company,
the Association and Xxxx 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 of any claims asserted,
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but after deducting any contribution received by the Company, the Association or
Xxxx from persons other than the other party thereto, who may also be liable for
contribution) in such proportion so that Xxxx are responsible for that portion
represented by the percentage that the fees paid to Xxxx 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 and
the Association shall be responsible for the balance. If, however, the
allocation provided above is not permitted by applicable law or if the
indemnified party failed to give the notice required under Section 8 above, 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 and the Association on the one hand and Xxxx 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 and the
Association on the one hand and Xxxx 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 and/or the Association on the one hand or
Xxxx 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 Association and Xxxx 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 Xxxx shall not be required to contribute any amount
which in the aggregate exceeds the amount paid (excluding reimbursable expenses)
to Xxxx under this Agreement. It is understood that the above stated limitation
on Xxxx'x liability for contribution is essential to Xxxx and that Xxxx 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 ll(f) of the 0000 Xxx) shall be
entitled to contribution from any person who was not found guilty of such
fraudulent misrepresentation. The obligations of the Company and the Association
under this Section 9 and under Section 8 shall be in addition to any liability
which the Company and the Association may otherwise have. For purposes of this
Section 9, each of Xxxx'x, the Company's or the Association's officers and
directors and each person, if any, who controls Xxxx or the Company or the
Association within the meaning of the 1933 Act and the 1934 Act shall have the
same rights to contribution as Xxxx, the Company or the Association. 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.
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SECTION 10. SURVIVAL OF AGREEMENTS REPRESENTATIONS AND INDEMNITIES. The
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respective indemnities of the Company, the Association and Xxxx and the
representations and warranties and other statements of the Company, the
Association and Xxxx set forth in or made pursuant to this Agreement shall
remain in full force and effect, regardless of any termination or cancellation
of this Agreement or any investigation made by or on behalf of Xxxx, the
Company, the Association or any controlling person referred to in Section 8
hereof, and shall survive the issuance of the Shares, and any legal
representative, successor or assign of Xxxx, the Company, the Association, and
any such controlling person shall be entitled to the benefit of the respective
agreements, indemnities, warranties and representations.
SECTION 11. TERMINATION. Xxxx may terminate its obligations under this
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Agreement by giving the notice indicated below in this Section 11 at any time
after this Agreement becomes effective as follows:
(a) In the event the Company fails to sell all of the Shares by March 31,
1999, and in accordance with the provisions of the Plan or as required by the
Conversion Regulations, and applicable law, this Agreement shall terminate upon
refund by the Association to each person who has subscribed for or ordered any
of the Shares the full amount which it may have received from such person,
together with interest as provided in the Prospectus, and no party to this
Agreement shall have any obligation to the other hereunder, except for payment
by the Company and/or the Association as set forth in Sections 2(a) and (d), 6,
8 and 9 hereof.
(b) 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 Xxxx'x obligations hereunder may be
cancelled by Xxxx by notifying the Company and the Association of such
cancellation in writing 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, 6, 8 and 9 hereof.
(c) If Xxxx elects to terminate this Agreement with respect to it as
provided in this Section, the Company and the Association shall be notified
promptly by such Agent by telephone or telegram, confirmed by letter.
The Company and the Association may terminate this Agreement with respect
to Xxxx in the event Xxxx 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 Association have provided Xxxx 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
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otherwise specifically provided, shall be mailed in writing and if sent to Xxxx
shall be mailed, delivered or telegraphed and confirmed to Xxxxxxx Xxxx &
Company, 000 Xxxxxxxxx, Xxxxxx, Xxxx 00000-0000, Attention:
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Xxxx Xxxxx, Esq. (with a copy to Elias, Matz, Xxxxxxx & Xxxxxxx L.L.P., 000 00xx
Xxxxxx, X.X., Xxxxxxxxxx, X.X. 00000, Attention: Xxxx X. Xxxxxxxx, Esq.) and, if
sent to the Company and the Association, shall be mailed, delivered or
telegraphed and confirmed to the Company and the Association at First Place
Financial Corp., 000 Xxxx Xxxxxx Xxxxxx, Xxxxxx , Xxxx 00000, Attention: Xxxxxx
X. Xxxxx, President and Chief Executive Officer, (with a copy to Xxxxxx Xxxxx,
L.L.P., 0000 X Xxxxxx, XX, Xxxxxxxxxx, X.X. 00000, Attention: Xxxxxx Passaic,
Esq.).
SECTION 13. PARTIES. The Company and the Association shall be entitled to
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act and rely on any request, notice, consent, waiver or agreement purportedly
given on behalf of Xxxx when the same shall have been given by the undersigned.
Xxxx shall be entitled to act and rely on any request, notice, consent, waiver
or agreement purportedly given on behalf of the Company or the Association, when
the same shall have been given by the undersigned or any other officer of the
Company or the Association. This Agreement shall inure solely to the benefit
of, and shall be binding upon, Xxxx, the Company, the Association, and their
respective successors, legal representatives and assigns, and no other person
shall have or be construed to have any legal or equitable right, remedy or claim
under or in respect of or by virtue of this Agreement or any provision herein
contained. It is understood and agreed that this Agreement, including Exhibit A
thereto, 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.
SECTION 14. CLOSING. The closing for the sale of the Shares shall take
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place on the Closing Date at such location as mutually agreed upon by Xxxx and
the Company and the Association. At the closing, the Company and the
Association shall deliver to Xxxx in next day funds the commissions, fees and
expenses due and owing to Xxxx as set forth in Sections 2 and 6 hereof and the
opinions and certificates required hereby and other documents deemed reasonably
necessary by Xxxx 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
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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
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with the laws of the State of Ohio.
SECTION 17. COUNTERPARTS. This Agreement may be executed in separate
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counterparts, each of which so executed and delivered shall be an original, but
all of which together shall constitute a binding agreement.
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If the foregoing correctly sets forth the arrangement among the Company,
the Association and Xxxx, please indicate acceptance thereof in the space
provided below for that purpose, whereupon this letter and Xxxx'x acceptance
shall constitute a binding agreement.
Very truly yours,
FIRST PLACE FINANCIAL CORP. FIRST FEDERAL SAVINGS AND LOAN
ASSOCIATION OF XXXXXX
By: _____________________________ By: _____________________________
Xxxxxx X. Xxxxx Xxxxxx X. Xxxxx
President and Chief Executive President and Chief Executive
Officer Officer
Accepted as of the date first above written
XXXXXXX XXXX & COMPANY, A DIVISION OF XXXXX,
XXXXXXXX & XXXXX, INC.
By: ____________________________
Xxxx Xxxxx
Senior Vice President
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