1,437,500 Shares (subject to increase up to 1,653,125 shares in the event of an increase in the pro forma market value of the Company’s Common Stock) HIBERNIA HOMESTEAD BANCORP, INC. (a Louisiana corporation) Common Stock (par value $0.01 per share)...
Exhibit 1.1
1,437,500 Shares
(subject to increase up to 1,653,125 shares
in the event of an increase in the pro forma market value
of the Company’s Common Stock)
(subject to increase up to 1,653,125 shares
in the event of an increase in the pro forma market value
of the Company’s Common Stock)
HIBERNIA HOMESTEAD BANCORP, INC.
(a Louisiana corporation)
(a Louisiana corporation)
Common Stock
(par value $0.01 per share)
(par value $0.01 per share)
FORM OF
AGENCY AGREEMENT
AGENCY AGREEMENT
, 2008
Sandler X’Xxxxx & Partners, L.P.
000 Xxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
000 Xxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Hibernia Homestead Bancorp, Inc., a Louisiana corporation (the “Company”), and Hibernia
Homestead Bank, a Louisiana savings bank (the “Bank”), hereby confirm their agreement with Sandler
X’Xxxxx & Partners, L.P. (“Sandler X’Xxxxx” or the “Agent”) with respect to the offer and sale by
the Company of 1,437,500 shares (subject to increase up to 1,653,125 shares in the event of an
increase in the pro forma market value of the Company’s Common Stock, par value $0.01 per share
(the “Common Stock”)). The shares of Common Stock to be sold by the Company are hereinafter called
the “Securities.”
The Securities are being offered for sale in accordance with the plan of conversion (the
“Plan”) adopted by the Board of Directors of the Bank, pursuant to which the Bank intends to
convert from a Louisiana chartered mutual savings bank to a Louisiana chartered stock savings bank
and issue all of its outstanding capital stock to the Company. Pursuant to the Plan, the Company
is offering to the Bank’s tax qualified employee benefit plans, including the Bank’s Employee Stock
Ownership Plan (the “ESOP” ) (collectively, the “Employee Plans”), and to certain current and
former depositors of the Bank rights to subscribe for the Securities in a subscription offering
(the “Subscription Offering”). To the extent the Securities are not subscribed for in the
Subscription Offering, such Securities may be offered to certain members of the general public,
with preference given to natural persons residing in Orleans Parish and Xxxxxxxxx Xxxxxx,
Louisiana, in a direct community offering (the “Community Offering” and,
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together with the Subscription Offering, as each may be extended or reopened from time to time, the
“Subscription and Community Offering” or the “Offerings”) to be commenced concurrently with, during
or promptly after the Subscription Offering. The conversion of the Bank from the mutual to stock
form, the acquisition of all of the to be issued and outstanding capital stock of the Bank by the
Company and the Offerings are hereinafter referred to collectively as the “Conversion.” It is
acknowledged that the number of Securities to be sold in the Conversion may be increased or
decreased in accordance with the Prospectus (as hereinafter defined). If the number of Securities
is increased or decreased in accordance with the Plan, the term “Securities” shall mean such
greater or lesser number, where applicable.
The Company has filed with the Securities and Exchange Commission (the “Commission”) a
registration statement on Form S-1 (No. 333-151656), including a related prospectus, for the
registration of the Securities under the Securities Act of 1933, as amended (the “Securities Act”),
has filed such amendments thereto, if any, and such amended prospectuses as may have been required
to the date hereof by the Commission in order to declare such registration statement effective, and
will file such additional amendments thereto and such amended prospectuses and prospectus
supplements as may hereafter be required. Such registration statement (as amended to date, if
applicable, and as from time to time amended or supplemented hereafter) and the prospectuses
constituting a part thereof (including in each case all documents incorporated or deemed to be
incorporated by reference therein and the information, if any, deemed to be a part thereof pursuant
to the rules and regulations of the Commission under the Securities Act, as from time to time
amended or supplemented pursuant to the Securities Act or otherwise (the “Securities Act
Regulations”)), are hereinafter referred to as the “Registration Statement” and the “Prospectus,”
respectively, except that if any revised prospectus shall be used by the Company in connection with
the Subscription and Community Offering which differs from the Prospectus on file with the
Commission at the time the Registration Statement becomes effective (whether or not such revised
prospectus is required to be filed by the Company pursuant to Rule 424(b) or (c) of the Securities
Act Regulations), the term “Prospectus” shall refer to such revised prospectus from and after the
time it is first provided to the Agent for such use.
Concurrently with the execution of this Agreement, the Company is delivering to the Agent
copies of the Prospectus to be used in the Subscription and Community Offering. Such prospectus
contains information with respect to the Bank, the Company and the Securities.
Section 1. Representations and Warranties
(a) The Company and the Bank jointly and severally represent and warrant to the Agent as of
the date hereof as follows:
(i) The Registration Statement has been declared effective by the Commission, no stop
order has been issued with respect thereto and no proceedings therefor have been initiated
or, to the knowledge of the Company and the Bank, threatened by the Commission. At the time
the Registration Statement became effective and at the Closing Time referred to in Section 2
hereof, the Registration Statement complied and will comply in all material respects with
the requirements of the Securities
2
Act and the Securities Act Regulations and did not and will not contain an untrue
statement of a material fact or omit to state a material fact required to be stated therein
or necessary to make the statements therein not misleading. The Prospectus at the date
hereof does not and at the Closing Time referred to in Section 2 hereof will not include an
untrue statement of a material fact or omit to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under which they were made,
not misleading; provided, however, that the representations and warranties in this
subsection shall not apply to statements in or omissions from the Registration Statement or
Prospectus made in reliance upon and in conformity with information with respect to the
Agent furnished to the Company in writing by the Agent expressly for use in the Registration
Statement or Prospectus (the “Agent Information”), which the Company and the Bank
acknowledge appears only in the second sentence of the section entitled “Summary — Market
For Common Stock” and the third sentence of the first paragraph of the section entitled
“Market For Our Common Stock” in the Prospectus).
(ii) At the time of filing the Registration Statement and at the date hereof, the
Company was not, and is not, an ineligible issuer, as defined in Rule 405 of the Securities
Act Regulations. At the time of the filing of the Registration Statement and at the time
of the use of any issuer free writing prospectus, as defined in Rule 433(h) of the
Securities Act Regulations, the Company met the conditions required by Rules 164 and 433 of
the Securities Act Regulations for the use of a free writing prospectus. If required to be
filed, the Company has filed any issuer free writing prospectus related to the Securities
at the time it is required to be filed under Rule 433 of the Securities Act Regulations
and, if not required to be filed, will retain such issuer free writing prospectus in the
Company’s records pursuant to Rule 433(g) of the Securities Act Regulations and if any
issuer free writing prospectus is used after the date hereof in connection with the
offering of the Securities the Company will file or retain such issuer free writing
prospectus as required by Rule 433 of the Securities Act Regulations.
(iii) As of the Applicable Time, none of the Issuer-Represented General Use Free
Writing Prospectuses issued at or prior to the Applicable Time and the Statutory
Prospectus, all considered together (collectively, the “General Disclosure Package”),
included any untrue statement of a material fact or omitted to state any material fact
necessary in order to make the statements therein, in the light of the circumstances under
which they were made, not misleading; provided, however, that this representation and
warranty shall not apply to any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Company by the Agent expressly for
use therein. As used in this paragraph and elsewhere in this Agreement:
“Applicable Time” means each and every date when a potential purchaser
submitted a subscription or otherwise committed to purchase securities, and
at the Closing Time as defined herein.
“Issuer-Represented Free Writing Prospectus” means any “issuer free
writing prospectus,” as defined in Rule 433(h) under the Securities Act
Regulations, relating to the Securities in the form filed or required to be
3
filed with the Commission or, if not required to be filed, in the form
retained in the Company’s records pursuant to Rule 433(g) of the Securities
Act Regulations. The term does not include any writing exempted from the
definition of prospectus pursuant to clause (a) or (b) of Section 2(a)(10) of
the Securities Act Regulations.
“Issuer-Represented General Use Free Writing Prospectus” means any
Issuer Represented Free Writing Prospectus that is intended for general
distribution to prospective investors, as evidenced by its being specified in
Schedule A to this Agreement.
“Issuer-Represented Limited-Use Free Writing Prospectus” means any
Issuer Represented Free Writing Prospectus that is not an Issuer Represented
General Use Free Writing Prospectus. The term Issuer-Represented Limited-Use
Free Writing Prospectus also includes any “bona fide” electronic road show,
as defined in Rule 433 of the Securities Act Regulations, that is made
available without restriction pursuant to Rule 433(d)(8)(ii) of the
Securities Act Regulations or otherwise, even though not required to be filed
with the Commission.
“Statutory Prospectus,” as of any time, means the most recent Prospectus
that is included in the Registration Statement or filed pursuant to Rule 424
of the Securities Act Regulations immediately prior to the Applicable Time,
including any document incorporated therein.
(iv) Other than the Issuer-Represented General Use Free Writing Prospectus specified
in Schedule A, neither the Company nor the Bank will issue any Issuer-Represented Free
Writing Prospectus prior to completion of the Offerings other than press releases which
will not include any more information therein than permitted by the provisions of Rule 134
of the Securities Act Regulations and are otherwise not deemed a free writing prospectus as
defined in Rule 405 of the Securities Act Regulations. Neither the Company nor the Bank
will issue prior to completion of the Offerings any Issuer Represented Limited-Use Free
Writing Prospectus without the prior written consent of the Agent, which shall not be
unreasonably withheld. Each Issuer-Represented Free Writing Prospectus, as of its date of
first use and at all subsequent times through the completion of the Offerings and the sale
of the Securities or until any earlier date that the Company notified or notifies the Agent
(as described in the next sentence), did not, does not and will not include any information
that conflicted, conflicts or will conflict with the information contained in the
Registration Statement, including any document incorporated by reference therein that has
not been superseded or modified. If at any time following the date of first use of an
Issuer-Represented Free Writing Prospectus there occurred or occurs an event or development
as a result of which such Issuer-Represented Free Writing Prospectus conflicted or would
conflict with the information contained in the Registration Statement or included or would
include an untrue statement of a material fact or omitted or would omit to state a material
fact necessary in order to make the statements therein, in the light of the circumstances
prevailing at that
4
subsequent time, not misleading, the Company has notified or will notify promptly the
Agent so that any use of such Issuer-Represented Free Writing Prospectus may cease until it
is amended or supplemented and the Company has promptly amended or will promptly amend or
supplement such Issuer-Represented Free Writing Prospectus to eliminate or correct such
conflict, untrue statement or omission. The foregoing two sentences do not apply to
statements in or omissions from any Issuer-Represented Free Writing Prospectus based upon
and in conformity with written information furnished to the Company by the Agent
specifically for use therein.
(v) Pursuant to the rules and regulations of the Louisiana Office of Financial Institutions
(the “OFI”) governing the conversion of Louisiana mutual savings banks to stock form (the “OFI
Conversion Regulations”), the Bank has filed with the OFI an application for conversion, and has
filed such amendments thereto and supplementary materials as may have been required to the date
hereof (such application, as amended to date, if applicable, and as from time to time amended or
supplemented hereafter, is hereinafter referred to as the “Conversion Application”), including a
proxy statement for the special meeting of members called to approve the Plan (the “Proxy
Statement”), and the Prospectus. The Board of Directors of the Bank has duly adopted the Plan and
such adoption has not been rescinded or revoked. The Conversion Application, the Proxy Statement
and the Prospectus have been approved by the OFI and such approvals remain in full force and effect
and no order has been issued by the OFI suspending or revoking such approvals and no proceedings
therefor have been initiated or, to the knowledge of the Company or the Bank, threatened by the
OFI. At the date of the approval of the Conversion Application, including the Proxy Statement and
Prospectus and at the Closing Time referred to in Section 2 hereof, the Conversion Application and
the Proxy Statement and Prospectus complied and will comply in all material respects with the
applicable provisions of the OFI Conversion Regulations and the Conversion Application was truthful
and accurate in all material respects.
(vi) Pursuant to the rules and regulations of the Federal Deposit Insurance Corporation (the
“FDIC”) governing the conversion of state chartered mutual savings banks to stock form (the “FDIC
Conversion Regulations” and, together with the OFI Conversion Regulations, the “Conversion
Regulations”) the Bank has filed a Notice of Intent to Convert to Stock Form with the FDIC, and has
filed such amendments thereto and supplementary materials as may have been required to the date
hereof (such notice, as amended to date, if applicable, and as from time to time amended or
supplemented hereafter, is hereinafter referred to as the “FDIC Conversion Notice”). The FDIC has
provided its non-objection to the FDIC Conversion Notice and such non-objection remains in full
force and effect and no order has been issued by the FDIC suspending or revoking such non-objection
and no proceedings therefor have been initiated or, to the knowledge of the Company or the Bank,
threatened by the FDIC. At the date of the FDIC’s non-objection to the FDIC Conversion Notice and
at the Closing Time referred to in Section 2 hereof, the FDIC Conversion Notice complied and will
comply in all material respects with the FDIC Regulations and was truthful and accurate in all
material respects.
5
(vii) 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 Bank will promptly file the Prospectus and any
supplemental sales literature with the Commission, the OFI and the FDIC. The Prospectus and all
supplemental sales literature, as of the date the Registration Statement became effective and at
the Closing Time referred to in Section 2, complied and will comply in all material respects with
the applicable requirements of the Conversion Regulations and, at or prior to the time of their
first use, will have received all required authorizations of the OFI for use in final form.
(viii) None of the Commission, the OFI or the FDIC or any state securities (“Blue Sky”)
authority has, by order or otherwise, prevented or suspended the use of the Proxy Statement, the
Prospectus or any supplemental sales literature authorized by the Company or the Bank for use in
connection with the Offerings and no action by or before any such governmental entity to prevent or
suspend the use of the Proxy Statement, the Prospectus or any supplemental sales literature is
pending, or to the best knowledge of the Company and the Bank, threatened.
(ix) At the Closing Time referred to in Section 2, the Company and the Bank will have
completed the conditions precedent to the Conversion of the Bank in accordance with the Plan, the
applicable Conversion Regulations and all other applicable laws, regulations, decisions and orders,
including all material terms, conditions, requirements and provisions precedent to the Conversion
imposed upon the Company or the Bank by the OFI, the FDIC or any other regulatory authority, other
than those which the regulatory authority permits to be completed after the Conversion.
(x) RP Financial, LC. (“RP Financial” or the “Appraiser”), which prepared the valuation of the
Bank as part of the Conversion, has advised the Company and the Bank in writing that it satisfies
all requirements for an appraiser set forth in the Conversion Regulations and any interpretations
or guidelines issued by the OFI with respect thereto.
(xi) LaPorte, Sehrt, Xxxxx and Hand, a Professional Accounting Corporation (“Xxxxxxx”), who
audited and reported on the financial statements of the Bank included in the Registration
Statement, has advised the Company and the Bank in writing that they are independent public
accountants within the meaning of the Code of Ethics of the American Institute of Certified Public
Accountants (the “AICPA”), and such accountants are, with respect to the Company and the Bank,
independent certified public accountants as required by the Securities Act and the Securities Act
Regulations and such accountants are not in violation of the auditor independence requirements of
the Xxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx Act”) and the Securities Exchange Act of 1934,
as amended (the “Exchange Act”), and the rules and regulations promulgated thereunder (the
“Exchange Act Regulations”).
6
(xii) The financial statements and the related notes thereto included in the Registration
Statement and the General Disclosure Package, including the Prospectus, present fairly the
financial position of the Bank at the dates indicated and the results of operations, retained
earnings, changes in equity and cash flows for the periods specified, and comply as to form with
the applicable accounting requirements of the Securities Act Regulations and the Conversion
Regulations; except as otherwise stated in the Registration Statement and Prospectus, said
financial statements have been prepared in conformity with accounting principles generally accepted
in the United States applied on a consistent basis; and the supporting schedules and tables
included in the Registration Statement and Prospectus present fairly the information required to be
stated therein. The other financial, statistical and pro forma information and related notes
included in the General Disclosure Package, including the Prospectus, present fairly the
information shown therein on a basis consistent with the audited and unaudited financial statements
included in the Prospectus, and as to the pro forma adjustments, the adjustments made therein have
been consistently applied on the basis described therein. The capitalization, liabilities, assets,
properties and business of the Company and the Bank conform in all material respects to the
descriptions contained in the General Disclosure Package, including the Prospectus, and, neither
the Company nor the Bank has any material liabilities of any kind, contingent or otherwise, except
as disclosed in the Registration Statement or the Prospectus or the General Disclosure Package,
including the Prospectus.
(xiii) Since the respective dates as of which information is given in the Registration
Statement and the General Disclosure Package, including the Prospectus, except as otherwise
stated therein (A) there has been no material adverse change in the financial condition,
results of operations, business affairs or prospects of the Company and the Bank considered
as one enterprise, whether or not arising in the ordinary course of business, and (B) except
for transactions specifically referred to or contemplated in the Prospectus, there have been
no transactions entered into by the Company or the Bank, other than those in the ordinary
course of business consistent with past practice, which are material with respect to the
Company and the Bank considered as one enterprise.
(xiv) The Company has been duly incorporated and is validly existing as a corporation
in good standing under the laws of the State of Louisiana, with corporate power and
authority to own, lease and operate its properties and to conduct its business as described
in the Prospectus and to enter into and perform its obligations under this Agreement and the
transactions contemplated hereby; and the Company is duly qualified to transact business and
is in good standing in the State of Louisiana. The Company is not required to be qualified
as a foreign corporation in any other jurisdiction in order to conduct its business. The
Company will be a registered savings and loan holding company under the Home Owners’ Loan
Act, as amended (the “HOLA”). Upon consummation of the Conversion, the only direct or
indirect subsidiary of the Company will be the Bank.
(xv) Upon consummation of the Conversion, the issued and outstanding capital stock of
the Company will be within the range as set forth in the Prospectus under “Our
Capitalization” (except for the inclusion of subsequent issuances of Common Stock, if
7
any, pursuant to reservations, agreements or employee benefit plans referred to under Our
Capitalization). The authorized capital stock of the Company consists of 9,000,000 shares
of Common Stock, par value $0.01 per share, and 1,000,000 shares of serial preferred stock,
par value of $0.01 per share. No shares of Common Stock or other capital stock of the
Company have been or will be issued and outstanding prior to the Closing Time referred to in
Section 2; at the Closing Time, the Securities will have been duly authorized for issuance
and, when issued and delivered by the Company pursuant to the Plan against payment of the
consideration calculated as set forth in the Plan and stated on the cover page of the
Prospectus, will be duly and validly issued and fully paid and non-assessable; the terms and
provisions of the Common Stock and the other capital stock of the Company conform in all
material respects to all statements relating thereto contained in the Prospectus; the
certificates representing the shares of Common Stock will conform to the requirements of
applicable law and regulations; and the issuance of the Securities is not subject to
preemptive or other similar rights, except for subscription rights granted by the Plan in
accordance with the Conversion Regulations.
(xvi) The Bank, as of the date hereof, is a Louisiana chartered savings bank in mutual
form and upon consummation of the Conversion in accordance with the Plan will be a Louisiana
chartered savings bank in stock form, in both instances with full corporate power and
authority to own, lease and operate its properties and to conduct its business as described
in the Prospectus and to enter into and perform its obligations under this Agreement and the
transactions contemplated hereby; the Company and the Bank have obtained all licenses,
permits and other governmental authorizations currently required for the conduct of their
respective businesses or required for the conduct of their respective businesses as
contemplated by the Conversion Application and the Prospectus, except where the failure to
obtain such licenses, permits or other governmental authorizations would not have a material
adverse effect on the financial condition, results of operations, business affairs or
prospects of the Company, the Bank or their subsidiaries considered as one enterprise (a
“Material Adverse Effect”); all such licenses, permits and other governmental authorizations
are in full force and effect and the Company and the Bank are in all material respects in
compliance therewith; neither the Company nor the Bank has received notice of any proceeding
or action relating to the revocation or modification of any such license, permit or other
governmental authorization which, singly or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, might have a Material Adverse Effect; and the Bank
is validly existing and in good standing under the laws of the State of Louisiana and is
qualified as a foreign corporation in any jurisdiction in which the failure to so qualify
would have a Material Adverse Effect.
(xvii) Hibernia Homestead Development Corporation has been duly incorporated and is
validly existing as a corporation in good standing under the laws of the State of Louisiana,
with corporate power and authority to own, lease and operate its properties and to conduct
its business as described in the Prospectus. The activities of Hibernia Homestead
Development Corporation are permitted to subsidiaries of a Louisiana chartered savings bank
by the rules, regulations and practices of the OFI and all of the issued and outstanding
capital stock of Hibernia Homestead Development
8
Corporation has been duly authorized and validly issued, is fully paid and non-assessable
and, except as disclosed in the Prospectus, is owned by the Bank free and clear of any
security interest, mortgage, pledge, lien or encumbrance.
(xviii) The deposit accounts of the Bank are insured by the FDIC up to the applicable
limits. Upon consummation of the Conversion, the liquidation account for the benefit of
eligible account holders and supplemental eligible account holders of the Bank will be duly
established in accordance with the requirements of the Plan and the Conversion Regulations.
(xix) The authorized capital stock of the Bank consists of shares of common
stock, par value $ per share (the “Bank Common Stock”) and the issued and outstanding
capital stock of the Bank will be shares of Bank Common Stock and no shares of Bank
Common Stock have been or will be issued prior to the Closing Time referred to in Section 2;
and as of the Closing Time referred to in Section 2, all of the issued and outstanding
capital stock of the Bank will be duly authorized, validly issued and fully paid and
nonassessable, have been issued in compliance with all federal and state securities laws and
will be owned of record and beneficially by the Company. The shares of Bank Common Stock to
be issued to the Company will have been duly authorized for issuance and, when issued and
delivered by the Bank pursuant to the Plan, against payment of the consideration calculated
as set forth in the Plan and as described in the Prospectus will be duly and validly issued
and fully paid and nonassessable, and all such Bank Common Stock will be owned beneficially
and of record by the Company free and clear of any security interest, mortgage, pledge,
lien, encumbrance or legal or equitable claim; the terms and provisions of the Bank Common
Stock conform to all statements relating thereto contained in the Prospectus, and the
certificates representing the shares of the Bank Common Stock will conform with the
requirements of applicable laws and regulations; and the issuance of the Bank Common Stock
is not subject to preemptive or similar rights; and there are no other warrants, options or
rights of any kind to acquire additional shares of Bank Common Stock.
(xx) The Company and the Bank have taken all corporate action necessary for them to
execute, deliver and perform this Agreement and the transactions contemplated hereby, and
this Agreement has been duly authorized, executed and delivered by, and is the valid and
binding agreement of, the Company and the Bank, enforceable in accordance with its terms,
except as may be limited by bankruptcy, insolvency or other laws affecting the
enforceability of the rights of creditors generally and judicial limitations on the right of
specific performance and except as the enforceability of indemnification and contribution
provisions may be limited by applicable securities laws.
(xxi) Subsequent to the respective dates as of which information is given in the
Registration Statement and the General Disclosure Package, including the Prospectus, and
prior to the Closing Time, except as otherwise may be indicated or contemplated therein,
neither the Company nor the Bank will have (A) issued any securities or incurred any
liability or obligation, direct or contingent, or borrowed money, except borrowings in the
ordinary course of business consistent with past practice from the same or similar
9
sources and in similar amounts as indicated in the Prospectus, or (B) entered into any
transaction or series of transactions which are material in light of the business of the
Company and the Bank, considered as one enterprise, excluding the origination, purchase and
sale of loans or the purchase or sale of investment securities or mortgaged-backed
securities in the ordinary course of business consistent with past practice.
(xxii) No approval of any regulatory or supervisory or other public authority is
required in connection with the execution and delivery of this Agreement or the issuance of
the Securities that has not been obtained and a copy of which has been delivered to the
Agent, except as may be required under the “blue sky” or state securities laws of various
jurisdictions.
(xxiii) Neither the Company nor the Bank is in violation of its articles of
incorporation or charter, as the case may be, or bylaws (and the Bank will not be in
violation of its charter or bylaws in stock form upon consummation of the Conversion); and
neither the Company nor the Bank is in default (nor has any event occurred which, with
notice or lapse of time or both, would constitute a default) in the performance or
observance of any obligation, agreement, covenant or condition contained in any contract,
indenture, mortgage, loan agreement, note, lease or other instrument to which the Company or
the Bank is a party or by which it or any of them may be bound, or to which any of the
property or assets of the Company or the Bank is subject, except for such defaults that
would not, individually or in the aggregate, have a Material Adverse Effect.
(xxiv) The consummation of the Conversion, the execution, delivery and performance of
this Agreement and the consummation of the transactions contemplated herein do not and will
not conflict with or constitute a breach of, or default under, or result in the creation or
imposition of any lien, charge or encumbrance upon any property or assets of the Company or
the Bank pursuant to, any contract, indenture, mortgage, loan agreement, note, lease or
other instrument to which the Company and the Bank is a party or by which it or any of them
may be bound, or to which any of the property or assets of the Company or the Bank is
subject, except for such defaults that would not, individually or in the aggregate, have a
Material Adverse Effect; nor will such action result in any violation of the provisions of
the articles of incorporation or charter or bylaws of the Company or the Bank, as the case
may be, or any applicable law, administrative regulation or administrative or court decree.
(xxv) No labor dispute with the employees of the Company or the Bank exists or, to the
knowledge of the Company or the Bank, is imminent or threatened; and the Company and the
Bank are not aware of any existing or threatened labor disturbance by the employees of any
of its principal suppliers or contractors which might be expected to result in any Material
Adverse Effect.
(xxvi) The Company and the Bank have good and marketable title to all properties and
assets for which ownership is material to the business of the Company or the Bank and to
those properties and assets described in the General Disclosure Package,
10
including the Prospectus, as owned by them, free and clear of all liens, charges,
encumbrances or restrictions, except such as are described in the Prospectus or are not
material in relation to the business of the Company and the Bank considered as one
enterprise; and all of the leases and subleases material to the business of the Company or
the Bank under which the Company or the Bank hold properties, including those described in
the General Disclosure Package, including the Prospectus, are valid and binding agreements
of the Company and the Bank in full force and effect, enforceable in accordance with their
terms (except as enforceability may be limited by applicable bankruptcy, insolvency, or
other laws, 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.
(xxvii) Neither the Company nor the Bank is in violation of any directive from the
Commission, the OFI or the FDIC or any other governmental entity to make any material change
in the method of conducting its respective business; the Bank has conducted and is
conducting its business so as to comply with all applicable statutes, regulations and
administrative and court decrees (including, without limitation, all regulations, decisions,
directives and orders of the Commission, the OFI and the FDIC). Neither the Company nor the
Bank is subject or is party to, or has received any notice or advice that any of them may
become subject or party to, any investigation with respect to any cease-and-desist order,
agreement, consent agreement, memorandum of understanding or other regulatory enforcement
action, proceeding or order with or by, or is a party to any commitment letter or similar
undertaking to, or is subject to any directive by, or has been a recipient of any
supervisory letter from, or has adopted any board resolutions at the request of, any
Regulatory Agency (as defined below) that currently restricts the conduct of its business or
that in any material manner relates to its capital adequacy, its credit policies, its
management or its business (each, a “Regulatory Agreement”), nor has the Company or the Bank
been advised by any Regulatory Agency that it is considering issuing or requesting any such
Regulatory Agreement; and there is no unresolved violation, criticism or exception by any
Regulatory Agency with respect to any report or statement relating to any examinations of
the Company or the Bank which is expected to result in a Material Adverse Effect or which
might materially and adversely affect the properties or assets thereof or which might
adversely affect the consummation of the Conversion or the performance of this Agreement.
As used herein, the term “Regulatory Agency” means any federal or state agency charged with
the supervision or regulation of depositary institutions or holding companies of depositary
institutions, or engaged in the insurance of depositary institution deposits, or any court,
administrative agency or commission or other governmental agency, authority or
instrumentality having supervisory or regulatory authority with respect to the Company or
the Bank.
(xxviii) There is no action, suit or proceeding before or by any court or governmental
agency or body, domestic or foreign, now pending, or, to the knowledge of the Company or the
Bank, threatened, against or affecting the Company or the Bank which is required to be
disclosed in the Registration Statement or the General Disclosure Package (other than as
disclosed therein), or which might result in any Material Adverse Effect, or which might
materially and adversely affect the properties or assets thereof or
11
which might materially and adversely affect the consummation of the Conversion or the
performance of this Agreement; all pending legal or governmental proceedings to which the
Company or the Bank is a party or of which any of their respective property or assets is the
subject which are not described in the Registration Statement, including ordinary routine
litigation incidental to the business, are considered in the aggregate not material; and
there are no contracts or documents of the Company or the Bank which are required to be
filed as exhibits to the Registration Statement, the Conversion Application or the FDIC
Conversion Notice which have not been so filed.
(xxix) The Company and the Bank have obtained opinions of their outside legal and tax
counsel, Elias, Matz, Xxxxxxx & Xxxxxxx L.L.P. (“Xxxxx Xxxx”), with respect to the legality
of the Securities to be issued and the federal income tax consequences of the Conversion and
the Plan, copies of which are filed as exhibits to the Registration Statement; all material
aspects of the aforesaid tax opinions are accurately summarized in the Prospectus under
“Federal and State Taxation”; the facts and representations upon which such opinions are
based are truthful, accurate and complete in all material respects; and neither the Bank nor
the Company has taken or will take any action inconsistent therewith.
(xxx) The Company and the Bank have received a letter from XxXxxxx, with respect to the
tax consequences of the Conversion under the laws of the State of Louisiana; the facts and
representations upon which such letter is based are truthful, accurate and complete in all
material respects; and neither the Bank nor the Company has taken or will take any action
inconsistent therewith.
(xxxi) The Company is not and, upon completion of the Conversion and the Offerings and
sale of the Common Stock and the application of the net proceeds therefrom, will not be,
required to be registered under the Investment Company Act of 1940, as amended.
(xxxii) All of the loans represented as assets on the most recent consolidated
financial statements or in selected consolidated financial and other data of the Bank or the
Company included in the General Disclosure Package, including the Prospectus, meet or are
exempt from all requirements of federal, state or local law pertaining to lending, including
without limitation truth in lending (including the requirements of Regulations Z and 12
C.F.R. Part 226 and 12 C.F.R. § 563.99), real estate settlement procedures, consumer credit
protection, equal credit opportunity and all disclosure laws applicable to such loans,
except for violations which, if asserted, would not result in a Material Adverse Effect.
(xxxiii) To the knowledge of the Company and the Bank, with the exception of the
intended loan to the Bank’s ESOP by the Company to enable the ESOP to purchase shares of
Common Stock in an amount of up to 8.0% of the Common Stock issued in the Conversion, none
of the Company, the Bank or employees of the Bank has made any payment of funds of the
Company or the Bank as a loan for the purchase of the Common
12
Stock or made any other payment of funds prohibited by law, and no funds have been set aside
to be used for any payment prohibited by law.
(xxxiv) To the knowledge of the Company, there are no affiliations or associations (as
such terms are defined by the Financial Industry Regulatory Authority (“FINRA”)) between any
member of the FINRA and any of the Company’s or Bank’s officers or directors. Neither the
Company nor the Bank has: (i) issued any securities within the last 18 months (except for
notes to evidence bank loans or other liabilities in the ordinary course of business or as
described in the General Disclosure Package, including the Prospectus; (ii) had any dealings
with respect to sales of securities within the 12 months prior to the date hereof with any
member of the FINRA, or any person related to or associated with such member, other than
discussions and meetings relating to the Offerings and purchases and sales of U.S.
government and agency and other securities in the ordinary course of business; (iii) entered
into a financial or management consulting agreement except for the letter agreements set
forth in Schedule B hereto and as contemplated hereunder; or (iv) engaged any intermediary
between the Agent and the Company and the Bank in connection with the Offerings, and no
person is being compensated in any manner for such services.
(xxxv) The Company and the Bank each carries, or is covered by, insurance in such
amounts and covering such risks as is adequate for the conduct of their respective
businesses and the value for their respective properties as is customary for companies
engaged in similar industries.
(xxxvi) Each of the Company and the Bank maintains a system of internal accounting
controls sufficient to provide reasonable assurance that (a) transactions are executed in
accordance with management’s general or specific authorizations; (b) transactions are
recorded as necessary to permit preparation of financial statements in conformity with
generally accepted accounting principles and to maintain asset accountability; (c) access to
assets is permitted only in accordance with management’s general or specific authorization;
and (d) the recorded accountability for assets is compared with the existing assets at
reasonable intervals and appropriate action is taken with respect to any differences.
(xxxvii) The Company and the Bank are in compliance in all material respects with the
applicable financial recordkeeping and reporting requirements of the Currency and Foreign
Transaction Reporting Act of 1970, as amended, and the rules and regulations thereunder.
The Bank has established compliance programs to ensure compliance with and is in compliance
in all material respects with the requirements of the USA Patriot Act and all applicable
regulations promulgated thereunder. There is no charge, investigation, action, suit or
proceeding before any court, regulatory authority or governmental agency or body pending or,
to the best knowledge of the Company and the Bank, threatened regarding the Bank’s
compliance with the USA Patriot Act or any regulations promulgated thereunder.
13
(xxxviii) The Company and the Bank have not relied on Agent or its counsel for any
legal, tax or accounting advice in connection with the Conversion.
(xxxix) The records of eligible account holders, supplemental eligible account holders
and other depositors are accurate and complete in all material respects.
(xl) The Company and the Bank are each in compliance in all material respects with all
presently applicable provisions of the Employee Retirement Income Security Act of 1974, as
amended, including the regulations and published interpretations thereunder (“ERISA”); no
“reportable event” (as defined in ERISA) has occurred with respect to any “pension plan” (as
defined in ERISA) for which the Company and the Bank, respectively, would have any
liability; neither the Company nor the Bank has incurred and does expect to incur liability
under (i) Title IV of ERISA with respect to termination of, or withdrawal from, any “pension
plan” or (ii) Sections 412 or 4971 of the Internal Revenue Code of 1986, as amended,
including the regulations and published interpretations thereunder (the “Code”); and each
“pension plan” for which the Company and the Bank would have any liability that is intended
to be qualified under Section 401(a) of the Code is so qualified in all material respects
and nothing has occurred, whether by action or by failure to act, which would cause the loss
of such qualification.
(xli) Neither the Company nor the Bank nor any properties owned or operated by the
Company or the Bank is in violation of or liable under any Environmental Law (as defined
below), except for such violations or liabilities that, individually or in the aggregate,
would not result in a Material Adverse Effect. There are no actions, suits or proceedings,
or demands, claims, notices or investigations (including, without limitation, notices,
demand letters or requests for information from any environmental agency) instituted or
pending, or to the knowledge of the Company or the Bank threatened, relating to the
liability of any property owned or operated by the Company or the Bank, under any
Environmental Law. For purposes of this subsection, the term “Environmental Law” means any
federal, state, local or foreign law, statute, ordinance, rule, regulation, code, license,
permit, authorization, approval, consent, order, judgment, decree, injunction or agreement
with any regulatory authority relating to (i) the protection, preservation or restoration of
the environment (including, without limitation, air, water, vapor, surface water,
groundwater, drinking water supply, surface soil, subsurface soil, plant and animal life or
any other natural resource), and/or (ii) the use, storage, recycling, treatment, generation,
transportation, processing, handling, labeling, production, release or disposal of any
substance presently listed, defined, designated or classified as hazardous, toxic,
radioactive or dangerous, or otherwise regulated, whether by type or by quantity, including
any material containing any such substance as a component.
(xlii) The Company and the Bank have timely filed all federal, state and local income
and franchise tax returns required to be filed and have made timely payments of all taxes
shown as due and payable in respect of such returns, and no deficiency has been asserted
with respect thereto by any taxing authority. The Company and the Bank have no knowledge of
any tax deficiency which has been asserted or could be asserted against the Company or the
Bank.
14
(xliii) The Company has, or will have, received all approvals required to consummate
the Offerings and to have the Securities quoted on the OTC Bulletin Board effective as of
the Closing Time referred to in Section 2 hereof.
(xliv) The Company has filed a registration statement for the Common Stock under
Section 12(g) of the Exchange Act and such registration statement was declared effective
concurrent with the effectiveness of the Registration Statement.
(xlv) The Company is in compliance with the applicable provisions of the Xxxxxxxx-Xxxxx
Act and will use its best efforts to comply with those provisions of the Xxxxxxxx-Xxxxx Act
that will become effective in the future upon their effectiveness.
(xlvi) There is no contract or other document of a character required to be described
in the Registration Statement or the General Disclosure Package, including the Prospectus,
or to be filed as an exhibit to the Registration Statement or Conversion Application which
is not described or filed as required.
(xlvii) At the time the Company’s securities are registered pursuant to Section 12 of
the Exchange Act, the Company shall have established and will maintain disclosure controls
and procedures (as such term is defined in Rule 13a-14 and 15d-14 under the Exchange Act);
which (A) are designed to ensure that material information relating to the Company including
its consolidated subsidiaries, is made known to the Company’s principal executive officer
and its principal financial officer by others within those entities, (B) have been (or will
be) evaluated for effectiveness as of a date within 90 days prior to the filing of the
Company’s most recent annual or quarterly report filed with the Commission and (C) are
effective in all material respects to perform the functions for which they were established.
The Company’s auditors and the Audit Committee of the Board of Directors have been advised
of: (i) any significant deficiencies in the design or operation of internal controls which
could adversely affect the Company’s ability to record, process, summarize, and report
financial data and (ii) any fraud, whether or not material, that involves management or
other employees who have a role in the Company’s internal controls; and such deficiencies or
fraud have either been disclosed in the Prospectus and the General Disclosure Package or are
not material to the Company and the Bank considered as one enterprise; and since the date of
the most recent evaluation of such disclosure controls and procedures, there have been no
significant changes in internal controls or in other factors that could significantly affect
internal controls, including any corrective actions with regard to significant deficiencies,
material weaknesses or fraud.
(xlviii) Except as described in the General Disclosure Package, including the
Prospectus, there are no contractual encumbrances or contractual restrictions or regulatory
restrictions on the ability (i) of the Company or the Bank to pay dividends or make any
other distributions on the Company’s or the Bank’s capital stock (with respect to the Bank,
subsequent to the Closing Time) or (ii) of the Company or the Bank (A) to pay any
indebtedness owed to the Company or the Bank, or (B) to make any loans or
15
advances to, or investments in, the Company or the Bank, or (C) to transfer any of its
property or assets to the Company or the Bank.
(b) Any certificate signed by any officer of the Company or the Bank and delivered to either
of the Agent or counsel for the Agent shall be deemed a representation and warranty by the Company
or the Bank to the Agent and, for purposes of the opinion to be delivered to the Agent pursuant to
Section 5(b)(2) hereof, to the counsel for the Agent as to the matters covered thereby.
Section 2. Appointment of Sandler X’Xxxxx; Sale and Delivery of the Securities;
Closing.
On the basis of the representations and warranties herein contained and subject to the terms
and conditions herein set forth, the Company and the Bank hereby appoint Sandler X’Xxxxx as their
Agent to consult with and advise the Company and the Bank, and to assist the Company and the Bank
with the solicitation of subscriptions and purchase orders for Securities, in connection with the
Company’s sale of Common Stock in the Subscription and Community Offering. On the basis of the
representations and warranties herein contained, and subject to the terms and conditions herein set
forth, Sandler X’Xxxxx accepts such appointment and agrees to use its best efforts to assist the
Company and the Bank with the solicitation of subscriptions and purchase orders for Securities in
accordance with this Agreement; provided, however, that the Agent shall not be obligated to take
any action which is inconsistent with any applicable laws, regulations, decisions or orders. The
services to be rendered by Sandler X’Xxxxx pursuant to this appointment include the following: (i)
consulting as to the securities marketing implications of the Plan and related corporate documents;
(ii) reviewing with the Board of Directors of the Company and the Bank the financial impact of the
offering on the Company and the Bank based on the independent appraiser’s appraisal of the Common
Stock; (iii) reviewing all offering documents, including the Prospectus, stock order forms and
related offering materials (it being understood that preparation and filing of such documents is
the sole responsibility of the Company and its counsel); (iv) assisting in the design and
implementation of a marketing strategy for the offering; (vi) assisting management of the Company
in scheduling and preparing for meetings with potential investors and broker-dealers in connection
with the offering; and (vii) providing such other general advice and assistance as may be requested
to promote the successful completion of the offering.
The appointment of the Agent hereunder shall terminate upon the earlier to occur of (a)
forty-five (45) days after the last day of the Subscription and Community Offering, unless the
Company and the Agent agree in writing to extend such period and the OFI agrees to extend the
period of time in which the Securities may be sold, or (b) the receipt and acceptance of
subscriptions and purchase orders for all of the Securities.
If any of the Securities remain available after the expiration of both the Subscription and
Community Offering, at the request of the Company, Sandler X’Xxxxx will seek to form a syndicate of
registered brokers or dealers (“Selected Dealers”) to assist in the solicitation of purchase orders
for such Securities on a best efforts basis, subject to the terms and conditions set forth in a
selected dealers’ agreement (the “Selected Dealers’ Agreement”). Sandler X’Xxxxx will endeavor to
limit the aggregate fees to be paid by the Company and the Bank under any such
16
Selected Dealers’ Agreement to an amount competitive with gross underwriting discounts charged at
such time for underwritings of comparable amounts of stock sold at a comparable price per share in
a similar market environment; provided, however, that the aggregate fees payable to Xxxxxx X’Xxxxx
and Selected Dealers shall not exceed the limits set forth below. Sandler X’Xxxxx will endeavor to
distribute the Securities among the Selected Dealers in a fashion which best meets the distribution
objective of the Company and the requirements of the Plan, which may result in limiting the
allocation of stock to certain Selected Dealers. It is understood that in no event shall Sandler
X’Xxxxx be obligated to act as a Selected Dealer or to take or purchase any Securities.
In the event the Company is unable to sell at least the total minimum of the Securities, as
set forth on the cover page of the Prospectus, within the period herein provided, this Agreement
shall terminate and the Company shall refund to any persons who have subscribed for any of the
Securities the full amount which it may have received from them, together with interest as provided
in the Prospectus, and no party to this Agreement shall have any obligation to the others
hereunder, except for the obligations of the Company and the Bank as set forth in Sections 4, 6(a)
and 7 hereof and the obligations of the Agent as provided in Sections 6(b) and 7 hereof.
Appropriate arrangements for placing the funds received from subscriptions for Securities or other
offers to purchase Securities in special interest-bearing accounts with the Bank or other financial
institution until all Securities are sold and paid for were made prior to the commencement of the
Subscription Offering, with provision for refund to the purchasers as set forth above, or for
delivery to the Company if the total minimum of the Securities are sold.
If at least the total minimum of Securities, as set forth on the cover page of the Prospectus,
are sold, the Company agrees to issue or have issued the Securities sold and to release for
delivery certificates for such Securities at the Closing Time against payment therefor by release
of funds from the special interest-bearing accounts referred to above. The closing shall be held
at the offices of Xxxxx Xxxx, at 10:00 a.m., Eastern Time, or at such other place and time as shall
be agreed upon by the parties hereto, on a business day to be agreed upon by the parties hereto.
The Company shall notify the Agent by telephone, confirmed in writing, when funds shall have been
received for all the Securities. Certificates for Securities shall be delivered directly to the
purchasers thereof in accordance with their directions. Notwithstanding the foregoing,
certificates for Securities purchased through Selected Dealers shall be made available to the Agent
for inspection at least 48 hours prior to the Closing Time at such office as the Agent shall
designate. The hour and date upon which the Company shall release for delivery all of the
Securities, in accordance with the terms hereof, is herein called the “Closing Time.”
The Company will pay any stock issue and transfer taxes which may be payable with respect to
the sale of the Securities.
In addition to the reimbursement of the expenses specified in Section 4 hereof, the Agent will
receive for its services hereunder one and a half percent (1.5%) of the aggregate purchase price of
the Securities sold in the Subscription and Community Offering, excluding in each case shares
purchased by or on behalf of (i) any employee benefit plan or trust of the Company or the Bank
established for the benefit of their directors, officers and employees, and (ii) any director,
17
officer or employee of the Company or the Bank, members of their immediate families, their personal
trusts and business entities controlled by them.
If this Agreement is terminated by the Agent in accordance with the provisions of Section 9(a)
hereof or the Conversion is terminated by the Company, no fee shall be payable by the Company to
Sandler X’Xxxxx; provided, however, that the Company shall reimburse the Agent for all of its
documented out-of-pocket expenses actually incurred prior to termination, including the reasonable
fees and disbursements of counsel for the Agent in accordance with the provisions of Section 4
hereof. In addition, the Company shall be obligated to pay the fees and expenses as contemplated
by the provisions of Section 4 hereof in the event of any such termination.
All fees payable to the Agent hereunder shall be payable in immediately available funds at
Closing Time, or upon the termination of this Agreement, as the case may be. In recognition of the
long lead times involved in the conversion process, the Bank has made an advance payment to the
Agent in the amount of $25,000, which shall be credited against any fees or reimbursement of
documented expenses actually incurred which are payable hereunder. To the extent that the actual
expenses incurred or fees due hereunder aggregate less than such amount, Agent will reimburse such
excess amount to the Bank.
Section 3. Covenants of the Company. The Company and the Bank covenant
with the Agent as follows:
(a) The Company and the Bank will prepare and file such amendments or supplements to the
Registration Statement, the Prospectus, the Conversion Application, the FDIC Conversion Notice and
the Proxy Statement as may hereafter be required by the Securities Act Regulations or the
Conversion Regulations or as may hereafter be requested by the Agent. Following completion of the
Subscription and Community Offering, the Company and the Bank will (i) promptly prepare and file
with the Commission a post-effective amendment to the Registration Statement relating to the
results of the Subscription and Community Offering, any additional information with respect to the
proposed plan of distribution and any revised pricing information or (ii) if no such post-effective
amendment is required, will, if required, file with the Commission a prospectus or prospectus
supplement containing information relating to the results of the Subscription and Community
Offering and pricing information pursuant to Rule 424 of the Securities Act Regulations, in either
case in a form acceptable to the Agent. The Company and the Bank will notify the Agent
immediately, and confirm the notice in writing, (i) of the effectiveness of any post-effective
amendment of the Registration Statement, the filing of any supplement to the Prospectus and the
filing of any amendment to the Conversion Application, (ii) of the receipt of any comments from the
OFI, the FDIC or the Commission with respect to the transactions contemplated by this Agreement or
the Plan, (iii) of any request by the Commission, the OFI or the FDIC for any amendment to the
Registration Statement, the Conversion Application, the FDIC Conversion Notice or any amendment or
supplement to the Prospectus or for additional information, (iv) of the issuance by the OFI or the
FDIC of any order suspending the Offerings or the use of the Prospectus or the initiation of any
proceedings for that purpose, (v) of the issuance by the Commission of any stop order suspending
the effectiveness of the Registration Statement or suspending the use of the Prospectus or any
Issuer-Represented Free Writing Prospectus or the initiation of any proceedings for that purpose,
and (vi) of the
18
receipt of any notice with respect to the suspension of any qualification of the Securities
for offering or sale in any jurisdiction. The Company and the Bank will make every reasonable
effort to prevent the issuance of any stop order and, if any stop order is issued, to obtain the
lifting thereof at the earliest possible moment.
(b) If at any time following issuance of an Issuer-Represented Free Writing Prospectus there
occurred or occurs an event or development as a result of which such Issuer-Represented Free
Writing Prospectus conflicted or would conflict with the information contained in the Registration
Statement or included or would include an untrue statement of a material fact or omitted or would
omit to state a material fact necessary in order to make the statements therein, in the light of
the circumstances prevailing at that subsequent time, not misleading, the Company has notified or
will notify promptly the Agent so that any use of such Issuer-Represented Free Writing Prospectus
may cease until it is amended or supplemented and the Company has promptly amended or will promptly
amend or supplement such Issuer-Represented Free Writing Prospectus to eliminate or correct such
conflict, untrue statement or omission; provided, however, that this covenant shall not apply to
any statements or omissions made in reliance upon and in conformity with information furnished in
writing to the Company by the Agent expressly for use therein.
(c) The Company represents and agrees that, unless it obtains the prior written consent of the
Agent, and the Agent represents and agrees that, unless it obtains the prior written consent of the
Company, it has not made and will not make any offer relating to the Securities that would
constitute an “issuer free writing prospectus,” as defined in Rule 433 of the Security Act
Regulations, or that would constitute a “free writing prospectus,” as defined in Rule 405 of the
Securities Act Regulations, required to be filed with the Commission. Any such free writing
prospectus consented to by the Company and the Agent is hereinafter referred to as a “Permitted
Free Writing Prospectus.” The Company represents that it has treated or agrees that it will treat
each Permitted Free Writing prospectus as an “issuer free writing prospectus,” as defined in Rule
433 of the Security Act Regulations, and has complied and will comply with the requirements of Rule
433 applicable to any Permitted Free Writing Prospectus, including timely filing with the
Commission where required, legending and record keeping. The Company represents that it has
satisfied the conditions in Rule 433 to avoid a requirement to file with the Commission any
electronic road show.
(d) The Company and the Bank will give the Agent notice of its intention to file or prepare
any amendment to the Conversion Application or Registration Statement (including any post-effective
amendment) or any amendment or supplement to the Prospectus (including any revised prospectus which
the Company proposes for use which differs from the prospectus on file at the Commission at the
time the Registration Statement becomes effective, whether or not such revised prospectus is
required to be filed pursuant to Rule 424(b) or (c) of the Securities Act Regulations), will
furnish the Agent with copies of any such amendment or supplement a reasonable amount of time prior
to such proposed filing or use, as the case may be, and will not file any such amendment or
supplement or use any such prospectus to which the Agent or counsel for the Agent may object.
19
(e) The Company and the Bank will deliver to the Agent as many signed copies and as many
conformed copies of the Conversion Application, the FDIC Conversion Notice and the Registration
Statement as originally filed and of each amendment thereto (including exhibits filed therewith or
incorporated by reference therein) as the Agent may reasonably request, and from time to time such
number of copies of the Prospectus as the Agent may reasonably request.
(f) During the period when the Prospectus is required to be delivered, the Company and the
Bank will comply, at their own expense, with all requirements imposed upon them by the OFI or the
FDIC, by the applicable Conversion Regulations, as from time to time in force, and by the OTC
Bulletin Board, the Securities Act, the Securities Act Regulations, the Exchange Act, and the
Exchange Act Regulations, including, without limitation, Regulation M under the Exchange Act, so
far as necessary to permit the continuance of sales or dealing in shares of Common Stock during
such period in accordance with the provisions hereof and the Prospectus.
(g) If any event or circumstance shall occur as a result of which it is necessary, in the
opinion of counsel for the Agent, to amend or supplement the Prospectus in order to make the
Prospectus not misleading in the light of the circumstances existing at the time it is delivered to
a purchaser, the Company and the Bank will forthwith amend or supplement the Prospectus (in form
and substance satisfactory to counsel for the Agent) so that, as so amended or supplemented the
Prospectus will not include an untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the circumstances existing at
the time it is delivered to a purchaser, not misleading, and the Company and the Bank will furnish
to the Agent a reasonable number of copies of such amendment or supplement. For the purpose of
this subsection, the Company and the Bank will each furnish such information with respect to itself
as the Agent may from time to time reasonably request.
(h) The Company and the Bank will take all necessary action, in cooperation with the Agent, to
qualify the Securities for offering and sale under the applicable securities laws of such states of
the United States and other jurisdictions as the Conversion Regulations may require and as the
Agent and the Company have agreed; provided, however, that the Company and the Bank shall not be
obligated to file any general consent to service of process or to qualify as a foreign corporation
in any jurisdiction in which it is not so qualified. In each jurisdiction in which the Securities
have been so qualified, the Company and the Bank will file such statements and reports as may be
required by the laws of such jurisdiction to continue such qualification in effect for a period of
not less than one year from the effective date of the Registration Statement.
(i) The Company authorizes Sandler X’Xxxxx and any Selected Dealer to act as agent of the
Company in distributing the Prospectus to persons entitled to receive subscription rights and other
persons to be offered Securities having record addresses in the states or jurisdictions set forth
in a survey of the securities or “blue sky” laws of the various jurisdictions in which the
Offerings will be made (the “Blue Sky Survey”).
(j) The Company will make generally available to its security holders as soon as practicable,
but not later than 60 days after the close of the period covered thereby, an earnings statement (in
form complying with the provisions of Rule 158 of the Securities Act Regulations) covering a twelve
month period beginning not later than the first day of the Company’s fiscal
20
quarter next following the “effective date” (as defined in Rule 158 of the Securities Act
Regulations) of the Registration Statement that will satisfy the provisions of Section 11(a) other
Securities Act.
(k) During the period ending on the third anniversary of the expiration of the fiscal year
during which the closing of the transactions contemplated hereby occurs, the Company will furnish
to its stockholders as soon as practicable after the end of each such fiscal year an annual report
(including consolidated statements of financial condition and consolidated statements of income,
stockholders’ equity and cash flows, certified by an independent registered public accounting firm)
and, as soon as practicable after the end of each of the first three quarters of each fiscal year
(beginning with the fiscal quarter ending after the effective date of the Registration Statement),
consolidated summary financial information of the Company and the Bank for such quarter in
reasonable detail. In addition, such annual report and quarterly consolidated summary financial
information shall be made public through the issuance of appropriate press releases at the same
time or prior to the time of the furnishing thereof to stockholders of the Company.
(l) During the period ending on the third anniversary of the expiration of the fiscal year
during which the closing of the transactions contemplated hereby occurs, the Company will furnish
to the Agent (i) as soon as publicly available, a copy of each report or other document of the
Company furnished generally to stockholders of the Company or furnished to or filed with the
Commission under the Exchange Act or any national securities exchange or system on which any class
of securities of the Company is listed or quoted, and (ii) from time to time, such other
information concerning the Company as the Agent may reasonably request. For purposes of this
paragraph, any document filed electronically with the Commission shall be deemed furnished to the
Agent.
(m) The Company and the Bank will conduct the Conversion in all material respects in
accordance with the Plan, the Conversion Regulations and all other applicable regulations,
decisions and orders, including all applicable terms, requirements and conditions precedent to the
Conversion imposed upon the Company or the Bank by the OFI or FDIC.
(n) The Company and the Bank will use the net proceeds received by it from the sale of the
Securities in the manner specified in the Prospectus under “How We Intend to Use the Proceeds From
the Offering.”
(o) The Company will report the use of proceeds from the Offerings on its first periodic
report filed with the Commission pursuant to Section 13(a) or 15(d) of the Exchange Act and on any
subsequent periodic reports as may be required pursuant to Rule 463 of the Securities Act
Regulations.
(p) The Company will maintain the effectiveness of the Exchange Act Registration Statement for
not less than three years and will comply in all material respects with its filing obligations
under the Exchange Act. The Company will use its best efforts to effect and maintain the listing
for quotation of the Common Stock on the OTC Bulletin Board for not less than three years and, once
quoted on the OTC Bulletin Board, the Company will comply with all
21
applicable corporate governance standards required by the OTC Bulletin Board. The Company
will file with the OTC Bulletin Board all documents and notices required by the OTC Bulletin Board
of companies that have issued securities that are quoted on the OTC Bulletin Board.
(q) The Company and the Bank will take such actions and furnish such information as are
reasonably requested by the Agent in order for the Agent to ensure compliance with Rule 2790 of
FINRA’s Conduct Rules and all related rules.
(r) Other than in connection with any employee benefit plan or arrangement described in the
Prospectus, the Company will not, without the prior written consent of the Agent, sell or issue,
contract to sell or otherwise dispose of, any shares of Common Stock other than the Securities for
a period of 180 days following the Closing Time.
(s) During the period beginning on the date hereof and ending on the later of the fifth
anniversary of the Closing Time or the date on which the Agent receives full payment in
satisfaction of any claim for indemnification or contribution to which it may be entitled pursuant
to Sections 6 or 7, respectively, neither the Company nor the Bank shall, without the prior written
consent of the Agent, take or permit to be taken any action that could result in the Bank Common
Stock becoming subject to any security interest, mortgage, pledge, lien or encumbrance.
(t) The Company and the Bank will comply with the conditions imposed by or agreed to with the
OFI and FDIC in connection with their approval of the Conversion Application and non-objection to
the FDIC Conversion Notice.
(u) The Company shall not deliver the Securities until the Company and the Bank have satisfied
each condition set forth in Section 5 hereof, unless such condition is waived in writing by the
Agent.
(v) The Company or the Bank will furnish to Sandler X’Xxxxx as early as practicable prior to
the Closing Date, but no later than two (2) full business days prior thereto, a copy of the latest
available unaudited interim consolidated financial statements of the Bank which have been read by
XxXxxxx, as stated in their letters to be furnished pursuant to subsections (f) and (g) of Section
5 hereof.
(w) Each of the Company and the Bank will conduct its business in compliance in all material
respects with all applicable federal and state laws, rules, regulations, decisions, directives and
orders, including all decisions, directives and orders of the Commission, the OTC Bulletin Board,
the OFI and the FDIC.
(x) The Bank will not amend the Plan in any manner that would affect the sale of the
Securities or the terms of this Agreement without the consent of the Agent.
(y) The Company and the Bank will not, prior to the Closing Time, incur any liability or
obligation, direct or contingent, or enter into any material transaction, other than in the
22
ordinary course of business consistent with past practice, except as contemplated by the
Prospectus.
(z) The Company and the Bank will use all reasonable efforts to comply with, or cause to be
complied with, the conditions precedent to the several obligations of the Agent specified in
Section 5 hereof.
(aa) The Company and the Bank will provide the Agent with any information necessary to carry
out the allocation of the Securities in the event of an oversubscription, and such information will
be accurate and reliable in all material respects.
(bb) The Company and the Bank will notify the Agent when funds have been received for the
minimum number of Securities set forth in the Prospectus.
Section 4. Payment of Expenses. The Company and the Bank jointly
and severally agree to pay all expenses incident to the performance of their obligations under this
Agreement, including but not limited to (i) the cost of obtaining all securities and bank
regulatory approvals, (ii) the preparation, printing and filing of the Registration Statement, the
Conversion Application and the Holding Company Application, each as originally filed and of each
amendment thereto, (iii) the preparation, issuance and delivery of the certificates for the
Securities to the purchasers in the Offerings, (iv) the fees and disbursements of the Company’s and
the Bank’s counsel, accountants, appraiser and other advisors, (v) the qualification of the
Securities under securities laws in accordance with the provisions of Section 3(h) hereof,
including filing fees and the fees and disbursements of the Company’s counsel in connection
therewith and in connection with the preparation of the Blue Sky Survey, (vi) the printing and
delivery to the Agent (in such quantities as the Agent shall reasonably request) of copies of the
Registration Statement as originally filed and of each amendment thereto and the printing and
delivery of the Prospectus and any amendments or supplements thereto to the purchasers in the
Offerings and the Agent (in such quantities as the Agent shall reasonably request), (vii) the
printing and delivery to the Agent of copies of a Blue Sky Survey, and (viii) the fees and expenses
incurred in connection with the listing of the Securities on the OTC Bulletin Board. In the event
the Agent actually incurs any such fees and expenses on behalf of the Bank or the Company, the Bank
will reimburse the Agent for such fees and expenses whether or not the Conversion is consummated;
provided, however, that the Agent shall not incur any substantial expenses on behalf of the Bank or
the Company pursuant to this Section without the prior approval of the Bank.
The Company and the Bank jointly and severally agree to pay certain expenses incident to the
performance of the Agent’s obligations under this Agreement, regardless of whether the Conversion
is consummated, including (i) the filing fees paid or incurred by the Agent in connection with all
filings with FINRA, and (ii) all reasonable documented out of pocket expenses actually incurred by
the Agent relating to the Offerings, including, without limitation, advertising, promotional,
syndication and travel expenses and fees and expenses of the Agent’s counsel, up to a maximum of
$100,000 with respect to the expenses contemplated by this clause (ii). All fees and expenses to
which the Agent is entitled to reimbursement under this paragraph
23
of this Section 4 shall be due and payable upon receipt by the Company or the Bank of a
written accounting therefor setting forth in reasonable detail the expenses actually incurred by
the Agent.
Section 5. Conditions of Agent’s Obligations. The Company, the Bank and the
Agent agree that the issuance and the sale of Securities and all obligations of the Agent hereunder
are subject to the accuracy of the representations and warranties of the Company and the Bank
herein contained as of the date hereof and the Closing Time, to the accuracy of the statements of
officers and directors of the Company and the Bank made pursuant to the provisions hereof, to the
performance by the Company and the Bank of their obligations hereunder, and to the following
further conditions:
(a) No stop order suspending the effectiveness of the Registration Statement shall have been
issued under the Securities Act or proceedings therefor initiated or threatened by the Commission,
no order suspending the Offerings or authorization for final use of the Prospectus shall have been
issued or proceedings therefor initiated or threatened by the OFI or FDIC and no order suspending
the sale of the Securities in any jurisdiction shall have been issued.
(b) At Closing Time, the Agent shall have received:
(1) The favorable opinion, dated as of Closing Time, of Xxxxx Xxxx, counsel for the
Company and the Bank, in form and substance satisfactory to counsel for the Agent, to the
effect that:
(i) The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Louisiana.
(ii) The Bank is validly existing as a savings bank chartered under the laws of
the State of Louisiana and, at the Closing Time, will be duly organized and validly
existing in stock form.
(iii) Hibernia Homestead Development Corporation has been duly incorporated and
is validly existing as a corporation in good standing under the laws of the State of
Louisiana, the activities of Hibernia Homestead Development Corporation are
permitted to subsidiaries of a Louisiana chartered savings bank by the rules,
regulations and practices of the OFI and all of the issued and outstanding capital
stock of Hibernia Homestead Development Corporation has been duly authorized and
validly issued, is fully paid and non-assessable and, except as disclosed in the
Prospectus, is owned by the Bank free and clear of any security interest, mortgage,
pledge, lien or encumbrance.
(iv) Each of the Company and the Bank has the full corporate power and
authority to own, lease and operate its properties and to conduct its business as
described in the Registration Statement, the General Disclosure Package, including
the Prospectus, and to enter into and perform its obligations under this Agreement
and the transactions contemplated hereby.
24
(v) The authorized capital stock of the Company consists of 9,000,000 shares of
Common Stock and 1,000,000 shares of preferred stock, par value $.01 per share, of
which no shares are issued and outstanding; immediately upon consummation of the
Conversion and the Offerings the issued and outstanding capital stock of the Company
will be within the range set forth in the Prospectus under “Our Capitalization”.
(vi) Immediately upon consummation of the Conversion and the Offerings, the
authorized capital stock of the Bank will consist of shares of common stock,
par value $ per share, when issued in accordance with the Plan, all of the
issued and outstanding capital stock of the Bank will be duly authorized and validly
issued, fully paid and non-assessable and owned beneficially and of record by the
Company free and clear of any security interest, mortgage, pledge, lien or
encumbrance and exempt from registration under the Securities Act pursuant to
Section (3)(a)(5) thereof.
(vii) The Securities have been duly authorized for issuance and sale, and when
issued and delivered by the Company pursuant to the Plan against payment of the
consideration calculated as set forth in the Plan, will be validly issued, fully
paid and nonassessable.
(viii) The issuance of the Securities is not subject to preemptive rights
arising by operation of federal or state laws and regulations or the Company’s
articles of incorporation, except for subscription rights granted pursuant to the
Plan in accordance with the Conversion Regulations.
(ix) To such counsel’s actual knowledge, the Company and the Bank have
conducted the Offerings in accordance with applicable requirements of the Conversion
Regulations (except to the extent that the requirements to comply therewith was
specifically waived by the OFI or FDIC) and the Plan, and have satisfied all
conditions precedent to the issuance of the Securities imposed upon them by the OFI
and FDIC under the terms of the OFI’s written approval of the Conversion Application
and the FDIC’s non-objection to the FDIC Conversion Notice; and, to the such
counsel’s actual knowledge, no person has sought to obtain review of the final
action of the OFI or FDIC in approving the Conversion Application or non-objecting
to the FDIC Conversion Notice.
(x) The Bank is a member in good standing of the Federal Home Loan Bank of
Dallas and the deposit accounts of the Bank are insured by the FDIC up to the
applicable limits.
(xi) The OFI has approved the Conversion Application and the FDIC has issued
its non-objection to the FDIC Conversion Notice; to such counsel’s actual knowledge
such approval and non-objection remain in full force and effect and no action by the
OFI or FDIC to suspend the effectiveness of such approval or non-objection or to
suspend the Offerings is pending or threatened and no
25
person has sought to obtain review of the final action of the OFI in approving
the Conversion Application or the FDIC in not objecting to the FDIC Conversion
Notice; the Conversion Application and the FDIC Conversion Notice comply as to form
in all material respects with the applicable requirements of such application and
notice, as the case may be (it being understood, however, that (i) no opinion need
be rendered with respect to the financial statements, notes to financial statements,
stock valuation information or other financial, tabular and statistical data
included in, or omitted from, the Conversion Application or the FDIC Conversion
Notice, (ii) in passing upon the compliance as to form of the Conversion Application
and the FDIC Conversion Notice, counsel need not assume any responsibility for the
accuracy, completeness or fairness of the statements contained therein except as
otherwise provided in such counsel’s opinion, and (iii) no opinion need be rendered
with respect to the business plan or the appraisal report); and such applications,
to such counsel’s actual knowledge, include all documents required to be filed as
exhibits thereto; and, to the such counsel’s actual knowledge, no person has sought
to obtain review of the final action of the OFI in approving the Conversion
Application or the FDIC in not objecting to the FDIC Conversion Notice.
(xii) The execution and delivery of this Agreement, the incurrence of the
obligations therein set forth, and the consummation of the transactions contemplated
hereby, (A) have been duly authorized by all necessary corporate action on the part
of each of the Company and the Bank, (B) will not violate the articles of
incorporation or bylaws of the Company or the charter or bylaws of the Bank, and (C)
will not result in a breach of or default, or result in the creation of any lien,
charge or encumbrance under any agreement filed as an exhibit to the Registration
Statement.
(xiii) The Agreement constitutes the legal, valid and binding agreement of each
of the Company and the Bank, enforceable in accordance with its terms, except as
rights to indemnity and contribution thereunder may be limited under applicable law,
and subject to the qualification that (i) enforcement thereof may be limited by
bankruptcy, insolvency, moratorium, reorganization or other laws (including the laws
of fraudulent conveyance) or judicial decisions affecting the enforceability of
creditors’ rights generally or the rights of creditors of savings banks or financial
institutions, the accounts of which are insured by the FDIC, and (ii) enforcement
thereof is subject to general equity principles (regardless of whether such
enforceability is considered in a proceeding in equity or at law) and to the effect
of certain laws and judicial decisions upon the availability of injunctive relief
and enforceability of equitable remedies, including the remedies of specific
performance and self-help.
(xiv) The Registration Statement has been declared effective by the Commission
under the Securities Act, and such counsel has been advised by the Commission’s
staff that no stop order suspending the effectiveness of the Registration Statement
has been issued under the Securities Act and that no
26
proceedings for such purpose have been initiated or threatened by the
Commission.
(xv) The Prospectus and the Proxy Statement have been cleared by the OFI and
FDIC and, such counsel has been advised by the OFI and FDIC staff that no order
suspending such clearance of the Prospectus or the Proxy Statement has been issued
by the OFI or FDIC and that no proceedings for such purpose have been initiated or
threatened by the OFI or FDIC.
(xvi) No further approval, authorization, consent or other order of any public
board or body is required in connection with the execution and delivery of this
Agreement and the issuance of the Securities pursuant to the Plan, except as may be
required under the securities or “Blue Sky” laws of various jurisdictions as to
which no opinion need be rendered.
(xvii) At the time the Registration Statement became effective, the
Registration Statement complied as to form in all material respects with the
applicable requirements under the Securities Act and the Securities Act Regulations;
it being understood, however, that (i) no opinion need be rendered with respect to
the financial statements, notes to financial statements, stock valuation information
or other financial, tabular and statistical data included in, or omitted from, the
Registration Statement and (ii) in passing upon the compliance as to form of the
Registration Statement, such counsel may assume that the statements made therein are
correct and complete, except as otherwise set forth in paragraph (xxii).
(xviii) The form of certificate used to evidence the Common Stock complies with
the requirements of Louisiana law.
(xix) To such counsel’s actual knowledge, there are no legal or governmental
proceedings pending or threatened against or affecting the Company or the Bank which
are required to be disclosed in the Registration Statement and Prospectus, other
than those disclosed therein.
(xx) The statements in the Prospectus under the caption “Summary — Tax
Aspects,” “Dividends,” “Business of Hibernia Homestead Bank — Legal Proceedings,”
“Regulation,” “Federal and State Taxation,” “The Conversion and Offering — Effects
of Conversion” and “—Tax Aspects,” “Restrictions on Acquisition of Hibernia
Homestead Bancorp and Hibernia Homestead Bank and Related Anti-Takeover Provisions,”
and “Description of Capital Stock,” insofar as they purport to summarize matters of
law or to describe documents referred to therein, are accurate summaries and
descriptions in all material respects.
(xxi) To such counsel’s actual knowledge, there are no contracts or documents
of a character required to be described in the Registration Statement or Prospectus
or to be filed as exhibits thereto that are not described or filed, and the
27
descriptions thereof or references thereto are correct and no default exists,
and no event has occurred which, with notice or lapse of time or both, would
constitute a default, in the due performance or observance of any material
obligation, agreement or covenant contained in any contract or document so described
or filed.
(xxii) The Plan have been duly authorized by all necessary corporate action by
the Company and the Bank.
(xxiii) To such counsel’s actual knowledge, the Company and the Bank are
currently not in violation of their respective articles of incorporation, charter
and bylaws.
(xxiv) The Company is not and, after giving effect to the offer and the sale of
the Securities and the application of the net proceeds as described in the
Prospectus under the caption “How We Intend to Use the Proceeds From the Offering”,
will not be, required to be registered as an “investment company” as such term is
defined in the Investment Company Act of 1940, as amended.
(2) The favorable opinion, dated as of Closing Time, of Xxxxxxxxxx Xxxxxxxx LLP
(“Xxxxxxxxxx Xxxxxxxx”), counsel for the Agent, with respect to the matters set forth in
Section 5(b)(1)(i), (ii), (vi), (vii), (viii) (solely as to preemptive rights arising by
operation of law), (xii(A)), (xiii), (xiv), (xv) and (xvii) and such other matters as the
Agent may reasonably require.
(3) In addition to giving their opinions required by subsections (b)(1) and (b)(2),
respectively, of this Section, Xxxxx Xxxx and Xxxxxxxxxx Xxxxxxxx shall each additionally
state that nothing has come to their attention that would lead them to believe that the
Registration Statement (except for financial statements and schedules and other financial
or statistical data included therein, as to which counsel need make no statement), at the
time it became effective, contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to make the statements
therein not misleading or that the Prospectus (except for financial statements and
schedules and other financial or statistical data included therein, as to which counsel
need make no statement), at the time the Registration Statement became effective or at the
Closing Time, or that the General Disclosure Package as of the Applicable Time, included or
includes an untrue statement of a material fact or omitted or omits 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. In giving their opinions, Xxxxx Xxxx and Xxxxxxxxxx
Xxxxxxxx may rely as to matters of fact on certificates of officers and directors of the
Company and the Bank and certificates of public officials, and Xxxxxxxxxx Xxxxxxxx may also
rely on the opinion of Xxxxx Xxxx.
(c) At Closing Time referred to in Section 2, the Company and the Bank shall have completed in
all material respects the conditions precedent to the Conversion in accordance with the Plan, the
applicable Conversion Regulations and all other applicable laws, regulations,
28
decisions and orders, including all terms, conditions, requirements and provisions precedent
to the Conversion imposed upon the Company or the Bank by the OFI or FDIC, or any other regulatory
authority other than those which the OFI or FDIC permits to be completed after the Conversion.
(d) At Closing Time, there shall not have been, since the date hereof or since the respective
dates as of which information is given in the Registration Statement and the General Disclosure
Package, including the Prospectus, any Material Adverse Change in the financial condition, results
of operations, business affairs or prospects of the Company and the Bank considered as one
enterprise, whether or not arising in the ordinary course of business consistent with past
practice, and the Agent shall have received a certificate of the President and Chief Executive
Officer of the Company and of the Bank and the Chief Financial Officer and Principal Accounting
Officer of the Company and of the Bank, dated as of Closing Time, to the effect that (i) there has
been no such Material Adverse Change, (ii) there shall have been no material transaction entered
into by the Company or the Bank from the latest date as of which the financial condition of the
Company or the Bank as set forth in the Registration Statement and the General Disclosure Package,
including the Prospectus, other than transactions referred to or contemplated therein and
transactions in the ordinary course of business consistent with past practice, (iii) neither the
Company nor the Bank shall have received from the OFI or the FDIC any order or direction (oral or
written) to make any material change in the method of conducting its business with which it has not
complied (which order or direction, if any, shall have been disclosed to the Agent) or which
materially and adversely would affect the business affairs, financial condition, results of
operations or prospects of the Company or the Bank, (iv) the representations and warranties in
Section 1 hereof are true and correct with the same force and effect as though expressly made at
and as of the Closing Time, (v) each of the Company and the Bank has complied with all agreements
and satisfied all conditions on their part to be performed or satisfied at or prior to Closing
Time, (vi) no stop order suspending the effectiveness of the Registration Statement has been issued
and no proceedings for that purpose have been initiated or threatened by the Commission and (vii)
no order suspending the Offerings or the authorization for final use of the Prospectus has been
issued and no proceedings for that purpose have been initiated or threatened by the OFI or FDIC and
no person has sought to obtain regulatory or judicial review of the action of the OFI or FDIC in
approving or not objecting to the Plan in accordance with the Conversion Regulations nor has any
person sought to obtain regulatory or judicial review of the action of the OFI in approving the
Conversion Application or the FDIC in not objecting to the FDIC Conversion Notice.
(e) At the Closing Time, the Agent shall have received a certificate of the President and
Chief Executive Officer of the Company and of the Bank and the Chief Financial Officer and
Principal Accounting Officer of the Company and of the Bank, dated as of Closing Time, to the
effect that (i) they have reviewed the contents of the Registration Statement and the Prospectus
and the General Disclosure Package; (ii) based on each of their knowledge, the Registration
Statement and the General Disclosure Package, including the Prospectus, do not contain any untrue
statement of a material fact or omit to state a material fact necessary in order to make the
statements made therein, in light of the circumstances under which such statements were made, not
misleading; (iii) based on each of their knowledge, the financial statements and other financial
information included in the Registration Statement and the Prospectus and the
29
General Disclosure Package fairly present the financial condition and results of operations of
the Bank as of and for the dates and periods covered by the Registration Statement and the
Prospectus; (iv) they are responsible for establishing and maintaining internal controls; (v) they
have designed such internal controls to ensure that material information relating to the Company
and the Bank is made known to them; (vi) they have evaluated the effectiveness of their internal
controls; and (vii) they have disclosed to XxXxxxx and the audit committee (A) all significant
deficiencies in the design or operation of internal controls which could adversely affect the
Company’s and the Bank’s ability to record, process, summarize, and report financial data, and have
identified for the Company’s and the Bank’s auditors any material weaknesses in internal controls
and (B) any fraud, whether or not material, that involves management or other employees who have a
significant role in the Company’s and the Bank’s internal controls.
(f) At the time of the execution of this Agreement, the Agent shall have received from XxXxxxx
a letter dated such date, in form and substance satisfactory to the Agent, to the effect that (i)
they are independent public accountants with respect to the Company and the Bank within the meaning
of the Code of Ethics of the American Institute of Certified Public Accountants, the Securities
Act, the Securities Act Regulations, and the Conversion Regulations and they are registered with
the PCAOB, they are not in violation of the auditor independence requirements of the Xxxxxxxx-Xxxxx
Act; (ii) it is their opinion that the consolidated financial statements and supporting schedules
included in the Registration Statement and covered by their opinion therein comply as to form in
all material respects with the applicable accounting requirements of the Securities Act and the
Securities Act Regulations; (iii) based upon limited procedures as agreed upon by the Agent and
XxXxxxx set forth in detail in such letter, nothing has come to their attention which causes them
to believe that (A) the unaudited financial statements and supporting schedules of the Bank
included in the Registration Statement and the General Disclosure Package, including the
Prospectus, do not comply as to form in all material respects with the applicable accounting
requirements of the Securities Act, the Securities Act Regulations and the Conversion Regulations
or are not presented in conformity with generally accepted accounting principles applied on a basis
substantially consistent with that of the audited financial statements included in the Registration
Statement and the General Disclosure Package, including the Prospectus, (B) the unaudited amounts
of net interest income and net income set forth under “Selected Financial and Other Data” or under
“Recent Developments of Hibernia Homestead Bank” in the Registration Statement and Prospectus do
not agree with the amounts set forth in unaudited financial statements as of and for the dates and
periods presented under such caption or such amounts were not determined on a basis substantially
consistent with that used in determining the corresponding amounts in the audited financial
statements included in the Registration Statement, (C) at a specified date not more than five days
prior to the date of this Agreement, there has been any increase in the long-term or short-term
debt of the Bank or any decrease in consolidated total assets, the allowance for loan losses, total
deposits or net worth of the Bank, in each case as compared with the amounts shown in the
statements of financial conditions included in the Registration Statement or, (D) during the period
from [April 1, 2008] to a specified date not more than five days prior to the date of this
Agreement, there were any decreases, as compared with the corresponding period in the preceding
fiscal year, in total interest income, net interest income, net interest income after provision for
loan losses, income before income tax expense or net income of the Bank, except in all instances
for increases or decreases which the Registration Statement and the General Disclosure Package,
including the
30
Prospectus, disclose have occurred or may occur; and (iv) in addition to the examination
referred to in their opinions and the limited procedures referred to in clause (iii) above, they
have carried out certain specified procedures, not constituting an audit, with respect to certain
amounts, percentages and financial information which are included in the Registration Statement and
the General Disclosure Package, including the Prospectus, and which are specified by the Agent, and
have found such amounts, percentages and financial information to be in agreement with the relevant
accounting, financial and other records of the Company and the Bank identified in such letter.
(g) At Closing Time, the Agent shall have received from XxXxxxx a letter, dated as of Closing
Time, to the effect that they reaffirm the statements made in the letter furnished pursuant to
subsection (f) of this Section, except that the specified date referred to shall be a date not more
than five days prior to Closing Time.
(h) At Closing Time, the Securities shall have been approved for listing on the OTC Bulletin
Board upon notice of issuance.
(i) At Closing Time, the Agent shall have received a letter from the Appraiser, dated as of
the Closing Time, confirming its appraisal.
(j) At Closing Time, counsel for the Agent shall have been furnished with such documents and
opinions as they may require for the purpose of enabling them to pass upon the issuance and sale of
the Securities as herein contemplated and related proceedings, or in order to evidence the accuracy
of any of the representations or warranties, or the fulfillment of any of the conditions, herein
contained; and all proceedings taken by the Company in connection with the issuance and sale of the
Securities as herein contemplated shall be satisfactory in form and substance to the Agent and
counsel for the Agent.
(k) At any time prior to Closing Time, (i) there shall not have occurred any material adverse
change in the financial markets in the United States or elsewhere or any outbreak of hostilities or
escalation thereof or other calamity or crisis the effect of which, in the judgment of the Agent,
are so material and adverse as to make it impracticable to market the Securities or to enforce
contracts, including subscriptions or orders, for the sale of the Securities, and (ii) trading
generally on either the New York Stock Exchange or the Nasdaq Global Market shall not have been
suspended, and minimum or maximum prices for trading shall not have been fixed, or maximum ranges
for prices for securities have been required, by either of said Exchanges or by order of the
Commission or any other governmental authority, and a banking moratorium shall not have been
declared by Federal, New York or Louisiana authorities.
Section 6. Indemnification.
(a) The Company and the Bank, jointly and severally, agree to indemnify and hold harmless the
Agent, each person, if any, who controls the Agent, within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act, and its respective partners, directors, officers,
employees and agents as follows:
31
(i) from and against any and all loss, liability, claim, damage and expense whatsoever,
as incurred, related to or arising out of the Offerings or any action taken by the Agent
where acting as agent of the Company or the Bank or otherwise as described in Section 2
hereof; provided, however, that this indemnity agreement shall not apply to any loss,
liability claim, damage or expense found in a final judgment by a court of competent
jurisdiction to have resulted primarily from bad faith, willful misconduct or gross
negligence of the Agent;
(ii) from and against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, based upon or arising out of any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement the General Disclosure
Package, any Issuer — Represented Free or Limited Use Free Writing Prospectus, when
considered together with the General Disclosure Package, or any amendment or supplement
thereto, or the omission or alleged omission therefrom of a material fact required to be
stated therein or necessary to make the statements therein not misleading or arising out of
any untrue statement or alleged untrue statement of a material fact contained in the
Prospectus or the General Disclosure Package or any Issuer — Represented Free Writing or
Limited Use Free Writing Prospectus (or any amendment or supplement thereto) or the omission
or alleged omission therefrom of a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not misleading;
(iii) from and against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in settlement of any
litigation, or any investigation or proceeding by any governmental agency or body, commenced
or threatened, or of any claim whatsoever described in clauses (i) or (ii) above, if such
settlement is effected with the written consent of the Company or the Bank, which consent
shall not be unreasonably withheld; and
(iv) from and against any and all expense whatsoever, as incurred (including, subject
to Section 6(c) hereof, the fees and disbursements of counsel chosen by the Agent),
reasonably incurred in investigating, preparing for or defending against any litigation, or
any investigation, proceeding or inquiry by any governmental agency or body, commenced or
threatened, or any claim pending or threatened whatsoever described in clauses (i) or (ii)
above, to the extent that any such expense is not paid under (i), (ii) or (iii) above;
provided, however, that the indemnification provided for in this paragraph (a) shall not apply to
any loss, liability, claim, damage or expense to the extent (i) it arises out of any untrue
statement or alleged untrue statement of a material fact contained in the Prospectus or the General
Disclosure Package or any Issuer — Represented Free Writing or Limited Use Free Writing Prospectus
(or any amendment or supplement thereto), or the omission or alleged omission therefrom of a
material fact necessary in order to make the statements therein, in the light of the circumstances
under which they were made, not misleading which was made in reliance upon and in conformity with
the Agent Information.
32
(b) The Agent agrees to indemnify and hold harmless the Company, the Bank, their directors and
trustees, each of their officers who signed the Registration Statement, and each person, if any,
who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of
the Exchange Act against any and all loss, liability, claim, damage and expense described in the
indemnity contained in subsection (a) of this Section, as incurred, but only with respect to untrue
statements or omissions, or alleged untrue statements or omissions, of a material fact made in the
Prospectus or the General Disclosure Package or any Issuer — Represented Free Writing or Limited
— Use Free Writing Prospectus (or any amendment or supplement thereto), in reliance upon and in
conformity with the Agent Information.
(c) Each indemnified party shall give notice as promptly as reasonably practicable to each
indemnifying party of any action commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not relieve such indemnifying party
from any liability which it may have otherwise than on account of this indemnity agreement. An
indemnifying party may participate at its own expense in the defense of any such action. In no
event shall the indemnifying parties be liable for fees and expenses of more than one counsel (in
addition to no more than one local counsel in each separate jurisdiction in which any action or
proceeding is commenced) separate from their own counsel for all indemnified parties in connection
with any one action or separate but similar or related actions in the same jurisdiction arising out
of the same general allegations or circumstances.
(d) The Company and the Bank also agree that the Agent shall not have any liability (whether
direct or indirect, in contract or tort or otherwise) to the Bank, the Company, its security
holders or the Bank’s or the Company’s creditors relating to or arising out of the engagement of
the Agent pursuant to, or the performance by the Agent of the services contemplated by, this
Agreement, except to the extent that any loss, claim, damage or liability is found in a final
judgment by a court of competent jurisdiction to have resulted primarily from the Agent’s bad
faith, willful misconduct or gross negligence.
(e) In addition to, and without limiting, the provisions of Section (6)(a)(iv) hereof, in the
event that the Agent, any person, if any, who controls the Agent within the meaning of Section 15
of the Securities Act or Section 20 of the Exchange Act or any of its partners, directors,
officers, employees or agents is requested or required to appear as a witness or otherwise gives
testimony in any action, proceeding, investigation or inquiry brought by or on behalf of or against
the Company, the Bank, the Agent or any of its respective affiliates or any participant in the
transactions contemplated hereby in which the Agent or such person or agent is not named as a
defendant, the Company and the Bank jointly and severally agree to reimburse the Agent or such
other person for all reasonable and necessary out-of-pocket expenses incurred by it or them in
connection with preparing or appearing as a witness or otherwise giving testimony and to compensate
the Agent and such other persons in an amount to be mutually agreed upon.
Section 7. Contribution. In order to provide for just and equitable
contribution in circumstances in which the indemnity agreement provided for in Section 6 hereof is
for any reason held to be unenforceable by the indemnified parties although applicable in
accordance with its terms, the Company, the Bank and the Agent shall contribute to the aggregate
losses,
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liabilities, claims, damages and expenses of the nature contemplated by said indemnity agreement
incurred by the Company or the Bank and the Agent, as incurred, in such proportions (i) that the
Agent is responsible for that portion represented by the percentage that the maximum aggregate
marketing fees in the Offerings bears to the maximum aggregate gross proceeds in the Offerings and
the Company and the Bank are jointly and severally responsible for the balance or (ii) if, but only
if, the allocation provided for in clause (i) is for any reason held unenforceable, in such
proportion as is appropriate to reflect not only the relative benefits to the Company and the Bank
on the one hand and the Agent on the other, as reflected in clause (i), but also the relative fault
of the Company and the Bank on the one hand and the Agent on the other, as well as any other
relevant equitable considerations; provided, however, that no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent misrepresentation. For purposes
of this Section, each person, if any, who controls the Agent within the meaning of Section 15 of
the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as
the Agent, and each director of the Company, each director of the Bank, each officer of the Company
who signed the Registration Statement, and each person, if any, who controls the Company or the
Bank within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall
have the same rights to contribution as the Company and the Bank. Notwithstanding anything to the
contrary set forth herein, to the extent permitted by applicable law, in no event shall the Agent
be required to contribute an aggregate amount in excess of the aggregate marketing fees to which
the Agent is entitled and actually paid pursuant to this Agreement.
Section 8. Representations, Warranties and Agreements to Survive Delivery.
All representations, warranties and agreements contained in this Agreement, or contained in
certificates of officers of the Company or the Bank submitted pursuant hereto, shall remain
operative and in full force and effect, regardless of any investigation made by or on behalf of any
Agent or controlling person, or by or on behalf of the Company, and shall survive delivery of the
Securities.
Section 9. Termination of Agreement.
(a) The Agent may terminate this Agreement, by notice to the Company, at any time at or prior
to Closing Time (i) if there has been, since the date of this Agreement or since the respective
dates as of which information is given in the Registration Statement, any material adverse change
in the financial condition, results of operations, business affairs or prospects of the Company or
the Bank, or the Company and the Bank considered as one enterprise, whether or not arising in the
ordinary course of business, or (ii) if there has occurred any material adverse change in the
financial markets in the United States or elsewhere or any outbreak of hostilities or escalation
thereof or other calamity or crisis the effect of which, in the judgment of the Agent, are so
material and adverse as to make it impracticable to market the Securities or to enforce contracts,
including subscriptions or orders, for the sale of the Securities, (iii) if trading generally on
the Nasdaq Global Market or the New York Stock Exchange has been suspended, or minimum or maximum
prices for trading have been fixed, or maximum ranges for prices for securities have been required,
by either of said Exchanges or by order of the Commission or any other governmental authority, or
if a banking moratorium has been declared by either Federal,
34
New York or Louisiana authorities, (iv) if any condition specified in Section 5 shall not have been
fulfilled when and as required to be fulfilled; (v) if there shall have been such material adverse
change in the condition or prospects of the Company or the Bank or the prospective market for the
Company’s securities as in the Agent’s good faith opinion would make it inadvisable to proceed with
the offering, sale or delivery of the Securities; (vi) if, in the Agent’s good faith opinion, the
price for the Securities established by the Appraiser is not reasonable or equitable under then
prevailing market conditions, or (vii) if the Conversion is not consummated on or prior to
, 2008.
(b) If this Agreement is terminated pursuant to this Section, such termination shall be
without liability of any party to any other party except as provided in Sections 2 and 4 hereof
relating to the reimbursement of expenses and except that the provisions of Sections 6 and 7 hereof
shall survive any termination of this Agreement.
Section 10. Notices. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed or transmitted by any
standard form of telecommunication. Notices to the Agent shall be directed to the Agent at 000
Xxxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: General Counsel, with a copy to
Xxxxxxxxxx Xxxxxxxx LLP, 000 00xx Xxxxxx, XX, Xxxxxxxxxx, XX 00000, Attention: Xxxx X. Xxxxxxxxx,
Esq.; notices to the Company and the Bank shall be directed to either of them at 000 Xxxxxxxxxx
Xxxxxx, Xxx Xxxxxxx, Xxxxxxxxx 00000, attention of A. Xxxxxx Xxxx, III, President and Chief
Executive Officer with a copy to Xxxxxxx X. Xxxxxxx, Esq., Elias, Matz, Xxxxxxx & Xxxxxxx L.L.P.,
000 00xx Xxxxxx, X.X., 00xx Xxxxx, Xxxxxxxxxx, XX 00000.
Section 11. Parties. This Agreement shall inure to the benefit of and
be binding upon the Agent, the Company and the Bank and their respective successors. Nothing
expressed or mentioned in this Agreement is intended or shall be construed to give any person, firm
or corporation, other than the Agent, the Company and the Bank and their respective successors and
the controlling persons and partners, and officers and directors referred to in Sections 6 and 7
and their heirs and legal representatives, any legal or equitable right, remedy or claim under or
in respect of this Agreement or any provision herein or therein contained. This Agreement and all
conditions and provisions hereof and thereof are intended to be for the sole and exclusive benefit
of the Agent, the Company and the Bank and their respective successors, and said controlling
persons and partners and officers and directors and their heirs and legal representatives, and for
the benefit of no other person, firm or corporation.
Section 12. Entire Agreement; Amendment. This Agreement represents the
entire understanding of the parties hereto with reference to the transactions contemplated hereby
and supersedes any and all other oral or written agreements heretofore made, except for those
sections of the engagement letter dated May 1, 2008, by and between the Agent and the Bank,
relating to the Agent’s providing record management services to the Company and the Bank in
connection with the Conversion and the section entitled “Confidentiality.” No waiver, amendment or
other modification of this Agreement shall be effective unless in writing and signed by the parties
hereto.
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Section 13. Governing Law and Time. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York applicable to agreements made and to
be performed in said State without regard to the conflicts of laws provisions thereof. Unless
otherwise noted, specified times of day refer to Eastern time.
Section 14. Severability. Any term or provision of this Agreement which is
invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the
extent of such invalidity or unenforceability without rendering invalid or unenforceable the
remaining terms and provisions of this Agreement or affecting the validity or enforceability of any
of the terms or provisions of this Agreement in any other jurisdiction. If any provision of this
Agreement is so broad as to be unenforceable, the provision shall be interpreted to be only so
broad as is enforceable.
Section 15. Headings. Sections headings are not to be considered part of
this Agreement, are for convenience and reference only, and are not to be deemed to be full or
accurate descriptions of the contents of any paragraph or subparagraph.
[Signature page follows]
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If the foregoing is in accordance with your understanding of our agreement, please sign and
return to the Company a counterpart hereof, whereupon this instrument, along with all counterparts,
will become a binding agreement between the Agent, the Company and the Bank in accordance with its
terms.
Very truly yours, HIBERNIA HOMESTEAD BANCORP, INC. |
||||
By: | ||||
A. Xxxxxx Xxxx, III | ||||
President and Chief Executive
Officer |
||||
HIBERNIA HOMESTEAD BANK |
||||
By: | ||||
A. Xxxxxx Xxxx, III | ||||
President and Chief Executive Officer | ||||
CONFIRMED AND ACCEPTED,
as of the date first above written:
Sandler X’Xxxxx & Partners, L.P.
By: | Sandler
X’Xxxxx & Partners Corp., the sole general partner |
|||
By: | ||||
Name: | ||||
Title: | ||||
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