Exhibit 1.2
IFB Holdings, Inc.
Up to 258,750 Shares
of
Common Stock
(Subject to Adjustment)
(Par Value $.01 Per Share)
$20.00 Per Share
SALES AGENCY AGREEMENT
----------------------
________, 1996
Trident Securities, Inc.
0000 Xxx Xxxxx Xxxx, Xxxxx 000
Xxxxxxx, Xxxxx Xxxxxxxx 00000
Dear Sirs:
IFB Holdings, Inc., a Delaware-chartered corporation ("Company"), and
Investors Federal Bank and Savings Association (to become Investors Federal
Bank, National Association), a federally chartered and insured mutual savings
bank ("Association," and all references hereafter to the Association shall
include the Association as a federal savings bank and as a national bank as
indicated by the context), hereby confirm as of the date above their respective
agreements with Trident Securities, Inc. ("Trident"), a broker-dealer registered
with the Securities and Exchange Commission ("Commission") and a member of the
National Association of Securities Dealers, Inc. ("NASD"), as follows:
1. Introduction. The Association intends to convert from a federally
------------
chartered mutual savings bank to a federally chartered stock savings bank and
then to a national bank as a wholly-owned subsidiary of the Company (together
with the Offerings, as defined below, the issuance of shares of common stock of
the Association to the Company, and the incorporation of the Company,
collectively the "Conversion") pursuant to a plan of conversion adopted on
September 23, 1996 ("Plan"). In accordance with the Plan, the Company is
offering shares of its common stock, par value $.01 per share ("Shares" or the
"Common Stock"), pursuant to nontransferable subscription rights in a
subscription offering ("Subscription Offering"), in order of priority, to (i)
the Association's Eligible Account Holders (as defined in the Plan), (ii) the
Association's Employee Stock Ownership Plan ("ESOP"), (iii) the Association's
Supplemental Eligible Account Holders (as defined in the Plan), (iv) the
Association's Other Members (as defined in the Plan), and (v) directors,
officers and employees of the Association. Shares of the Common Stock not sold
in the Subscription Offering are being offered to the general public in a
community offering, with
Trident Securities, Inc.
Page 2
preference being given to natural persons residing in Xxxxxxxxxx, Xxxxxxxx and
Daviess Counties, Missouri ("Association's Local Community") ("Community
Offering"), and, if necessary, through a syndicate of NASD-registered broker-
dealers managed by Trident in a syndicated community offering ("Syndicated
Community Offering"). The Community Offering and the Syndicated Community
Offering may commence any time during the Subscription Offering or after the
expiration of the Subscription Offering. The Subscription Offering, the
Community Offering and the Syndicated Community Offering are collectively
referred to as the "Offerings." Purchases of Shares in the Offerings are
subject to certain limitations and restrictions as described in the Plan.
The Company and the Association have been advised by Trident that it
intends to utilize its best efforts to assist the Company and the Association
with the sale of the Shares in the Subscription Offering and, if deemed
necessary, in the Community Offering and the Syndicated Community Offering.
2. Representations and Warranties.
------------------------------
(a) The Company and the Association jointly and severally represent and
warrant to Trident that:
(i) The Company has filed with the Commission a registration
statement, including exhibits and an amendment or amendments thereto, on
Form SB-2 (No. 333-____), including a Prospectus relating to the Offerings,
for the registration of the Shares under the Securities Act of 1933, as
amended ("Securities Act"); and such registration statement has been
declared effective under the Securities Act and no stop order has been
issued with respect thereto and no proceedings therefor have been initiated
or, to the Company's best knowledge, threatened by the Commission. Except
as the context may otherwise require, such registration statement, as
amended or supplemented, on file with the Commission at the time the
registration statement became effective, including the Prospectus,
financial statements, schedules, exhibits and all other documents filed as
part thereof, as amended and supplemented, is herein called the
"Registration Statement," and the prospectus, as amended or supplemented,
on file with the Commission at the time the Registration Statement became
effective is herein called the "Prospectus," except that if any prospectus
filed by the Company with the Commission pursuant to Rule 424(b) of the
general rules and regulations of the Commission under the Securities Act
(together with the published policies and actions of the Commission
thereunder, the "Securities Act Regulations") differs from the form of
prospectus on file at the time the Registration Statement became effective,
the term "Prospectus" shall refer to the Rule 424(b) prospectus from and
after the time it is filed with or mailed for filing to the Commission and
shall include any amendments or supplements thereto from and after their
dates of effectiveness or use, respectively.
Trident Securities, Inc.
Page 3
(ii) The Association has filed a Notification of Intention to
Convert to or Combine with a Bank, including exhibits (as amended or
supplemented, the "OTS Bank Notification") under the HOLA and the OTS
Regulations, which has been approved by the OTS. No action by or before the
OTS revoking such approval is pending or, to the Association's best
knowledge, threatened.
(iii) The Association has filed a Letter of Intent to Convert to a
National Bank, including exhibits (as amended or supplemented, the "OCC
Conversion Application") under the National Bank Act, as amended ("NBA")
and the rules and regulations of the Office of the Comptroller of the
Currency ("OCC") promulgated thereunder ("OCC Regulations"), which has been
approved by the OCC. No action by or before the OCC revoking such approval
is pending or, to the Association's best knowledge, threatened. The
Company has filed an application, including exhibits (as amended or
supplemented, the "Bank Holding Company Application") with the Board of
Governors of the Federal Reserve System ("Federal Reserve") under the
Federal Reserve Act, as amended ("FRA"), and Regulation Y promulgated
thereunder by the Federal Reserve, which has been approved by the Federal
Reserve. No action by or before the Federal Reserve revoking such approval
is pending or, to the Association's best knowledge, threatened.
(iv) The Association has filed an Application for Approval of
Conversion on Form AC, including exhibits (as amended or supplemented, the
"Form AC" or the "Conversion Application") with the Office of Thrift
Supervision ("OTS") under the Home Owners' Loan Act, as amended ("HOLA"),
and the rules and regulations, including published policies and actions, of
the OTS thereunder (collectively, the "OTS Regulations"), which has been
approved by the OTS; and the Prospectus and the proxy statement for the
solicitation of proxies from members for the special meeting to approve the
Plan ("Proxy Statement") included as part of the Form AC have been approved
for use by the OTS. No order has been issued by the OTS preventing or
suspending the use of the Prospectus or the Proxy Statement and no action
by or before the OTS revoking such approvals is pending or, to the
Association's best knowledge, threatened. The Company has filed with the
OTS the Company's application on Form H-e(1)-S ("Holding Company
Application") promulgated under the savings and loan holding company
provisions of the HOLA and the regulations promulgated thereunder and has
received approval of its acquisition of the Association from the OTS.
(v) As of the date hereof (i) the Registration Statement and the
Prospectus complied with the Securities Act and the Securities Act
Regulations, (ii) the Registration Statement does not contain an untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein, in light of
the circumstances under which they were made,
Trident Securities, Inc.
Page 4
not misleading, and (iii) the Prospectus does not contain any untrue
statement of a material fact or omit to state any material fact required to
be stated therein or necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading.
Representations or warranties in this subsection shall not apply to
statements or omissions made in reliance upon and in conformity with
written information furnished to the Company or the Association by or on
behalf of Trident relating to Trident expressly for use in the Registration
Statement or Prospectus.
(vi) The Company has been duly incorporated as a Delaware
corporation and the Association has been duly organized as a mutual savings
bank under the laws of the United States, and each of them is validly
existing and in good standing under the laws of their jurisdiction of
organization with full power and authority to own its property and conduct
its business as described in the Registration Statement and Prospectus; the
Association is a member in good standing of the Federal Home Loan Bank of
Kansas City; the deposit accounts of the Association are insured by the
Savings Association Insurance Fund ("SAIF") administered by the Federal
Deposit Insurance Corporation ("FDIC") up to the applicable legal limits
and, upon consummation of the Conversion, will remain so insured; and each
of the Company and the Association is not required to be qualified to do
business as a foreign corporation in any jurisdiction where non-
qualification would have a material adverse effect on the financial
condition, operations, business, properties or assets of the Company and
the Association.
(vii) The Association has good, marketable and insurable title to
all assets material to its business and to those assets described in the
Prospectus as owned by it, free and clear of all liens, charges,
encumbrances or restrictions, except for liens for taxes not yet due,
except as described in the Prospectus and except as do not in the aggregate
have a material adverse effect upon the financial condition, operations,
business, properties or assets of the Association; and all of the leases
and subleases material to the financial condition, operations, business,
assets or properties of the Association, under which it holds properties,
including those described in the Prospectus, are in full force and effect
as described therein.
(viii) The Association does not own equity securities of or an equity
interest in any business enterprise except as described in the Prospectus.
Investors Federal Service Corporation ("Subsidiary") is duly organized and
in good standing under the laws of the State of Missouri, with full power
and authority to own its property and conduct its business and is not
required to be qualified to do business as a foreign corporation in any
jurisdiction where the failure to be so qualified would have a material
adverse effect on the business, financial condition, operations, properties
or assets of the Subsidiary. The Subsidiary holds all licenses,
certificates and permits
Trident Securities, Inc.
Page 5
from governmental authorities necessary for the conduct of its business,
except where failure to obtain such licenses, permits or authorizations
would not have a material adverse effect on the financial condition,
operations, property, assets or business of the Subsidiary. All of the
outstanding stock of the Subsidiary has been duly authorized and is fully
paid and nonassessable, and such stock is owned directly by the Association
free and clear of any liens or encumbrances. The activities of the
Subsidiary are permitted to subsidiaries of a federally-chartered savings
bank by the OTS Regulations and the policies and practices of the OTS and,
upon consummation of the Conversion, will be permitted to subsidiaries of a
national bank by the OCC Regulations and the policies and practices of the
OCC and to subsidiaries of a bank holding company by Regulation Y and the
policies and practices of the Federal Reserve.
(ix) The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby have been duly and
validly authorized by all necessary actions on the part of each of the
Company and the Association, and this Agreement is a valid and binding
obligation of each of the Company and the Association, enforceable in
accordance with its terms (except as the enforceability thereof may be
limited by bankruptcy, insolvency, moratorium, reorganization,
conservatorship, receivership or similar laws relating to or affecting the
enforcement of creditors' rights generally or the rights of creditors of
insured financial institutions and their holding companies, the accounts of
whose subsidiaries are insured by the FDIC, by general equity principles,
regardless of whether such enforceability is considered in a proceeding in
equity or at law, or laws relating to the safety and soundness of insured
depository institutions and their affiliates, and except to the extent that
the provisions of Sections 8 and 9 hereof may be unenforceable as against
public policy or by applicable law, including without limitation, Section
23A of the FRA, 12 U.S.C. Section 371c ("Section 23A").
(x) Except as referred to in the Prospectus, there is no
litigation or governmental proceeding pending or, to the best knowledge of
the Company or the Association, threatened against or involving the
Company, the Association or the Subsidiary, or any of their respective
assets which individually or in the aggregate would reasonably be expected
to have a material adverse effect on the financial condition, results of
operations, business, assets or properties of the Company, the Association
or the Subsidiary. Any litigation or governmental proceeding is not
considered "threatened" unless the potential litigation or governmental
authority had manifested to the management of the Company, the Association
or the Subsidiary a present intention to initiate such litigation or
proceeding.
(xi) The Company and the Association have received the opinions of
Xxxx Xxxxxx Xxxxxx Xxxxxxxx & Xxxxxx, P.C. with respect to the federal
income tax
Trident Securities, Inc.
Page 6
consequences of the Conversion, and of Xxxxxxxxx, Constant & Xxxxxx, LLC
with respect to Missouri income tax consequences of the Conversion, to the
effect that the Conversion will constitute a tax-free reorganization under
the Internal Revenue Code of 1986, as amended, and will not be a taxable
transaction for the Association or the Company under the laws of Missouri;
and the facts and representations made by the Company and the Association
and relied upon in rendering such opinions are accurate and complete, and
neither the Company nor the Association have taken any action inconsistent
therewith.
(xii) Neither the Company nor the Association nor the Subsidiary is
in violation of any rule or regulation of the OTS or the FDIC that could
reasonably be expected to result in any enforcement action against the
Company, the Association or the Subsidiary, or their officers or directors,
that might have a material adverse effect on the financial condition,
operations, businesses, assets or properties of the Company, the
Association, and the Subsidiary, taken as a whole.
(xiii) Xxxxxxxx & Co., LLP ("Xxxxxxxx"), the firm that prepared the
independent appraisal dated as of September 20, 1996, is independent with
respect to the Company and the Association within the meaning of the OTS
Regulations. The Company and the Association believe Xxxxxxxx to be
experienced and expert in rendering appraisals of thrift institutions, and
nothing has come to the attention of the Company and the Association which
has caused them to believe that the appraisal by Xxxxxxxx was not prepared
in accordance with the requirements of the OTS Regulations.
(xiv) Xxxxxxxxx, Constant & Xxxxxx, LLC, the firm that certified the
consolidated financial statements of the Association filed as part of the
Registration Statement and the Conversion Application, is independent with
respect to the Company and the Association as required by the Securities
Act, the Securities Act Regulations, the Code of Professional Ethics of the
American Institute of Certified Public Accountants, and Title 12 of the
Code of Federal Regulations Parts 563c and 571, and nothing has come to the
attention of the Company and the Association which has caused them to
believe that such firm is not independent within the meaning of such
provisions.
(xv) The consolidated financial statements and related notes which
are included in the Registration Statement and the Prospectus fairly
present the consolidated financial condition, earnings, equity and cash
flows of the Association at the respective dates thereof and for the
respective periods covered thereby and comply as to form with the
applicable accounting requirements of the Securities Act Regulations and
the OTS Regulations. Such financial statements have been prepared in
accordance with generally accepted accounting principles ("GAAP")
Trident Securities, Inc.
Page 7
consistently applied throughout the periods involved, except as set forth
therein, and such financial statements are consistent with financial
statements and other reports filed by the Association with the OTS, except
as GAAP may otherwise require. The financial tables in the Prospectus
accurately present the information purported to be shown thereby at the
respective dates thereof and for the respective periods covered thereby.
(xvi) There has been no material change in the financial condition,
operations, business, assets or properties of the Company, the Association
and the Subsidiary, taken as a whole, since the latest date as of which
such condition is set forth in the Prospectus, except as set forth therein;
and the capitalization, assets, properties and business of each of the
Company and the Association conform in all material aspects to the
descriptions thereof contained in the Prospectus. None of the Company, the
Association or the Subsidiary has any material liabilities of any kind,
contingent or otherwise, except as set forth in the Prospectus.
(xvii) There has been no breach or default (or the occurrence of any
event which, with notice or lapse of time or both, would constitute a
default) under, or creation or imposition of any lien, charge or other
encumbrance upon any of the properties or assets of the Company, the
Association or the Subsidiary pursuant to any of the terms, provisions or
conditions of, any agreement, contract, indenture, bond, debenture, note,
instrument or obligation to which the Company, the Association or the
Subsidiary is a party or by which any of them or any of their respective
assets or properties may be bound or is subject, or violation of any
governmental license or permit or any enforceable published law,
administrative regulation or order or court order, writ, injunction or
decree, which breach, default, encumbrance or violation would have a
material adverse effect on the financial condition, operations, business,
assets or properties of the Company, the Association and the Subsidiary,
taken as a whole; all agreements which are material to the financial
condition, results of operations or business of the Company, the
Association and the Subsidiary, taken as a whole, are in full force and
effect, and no party to any such agreement has instituted or, to the best
knowledge of the Company, the Association and the Subsidiary, threatened
any action or proceeding wherein the Company, the Association or the
Subsidiary would be alleged to be in default thereunder.
(xviii) Neither the Company nor the Association nor the Subsidiary is
in violation of its respective charter, certificate of incorporation or
bylaws. The execution and delivery of this Agreement and the consummation
of the transactions contemplated hereby by the Company and the Association
do not conflict with or result in a breach of the charter, certificate of
incorporation or bylaws of the Company or the Association (in either mutual
or stock form) or constitute a material
Trident Securities, Inc.
Page 8
breach of or default (or an event which, with notice or lapse of time or
both, would constitute a default) under, give rise to any right of
termination, cancellation or acceleration contained in, or result in the
creation or imposition of any lien, charge or other encumbrance upon any of
the properties or assets of the Company or the Association pursuant to any
of the terms, provisions or conditions of, any material agreement,
contract, indenture, bond, debenture, note, instrument or obligation to
which the Company or the Association is a party (other than the
establishment of a liquidation account pursuant to the Plan) or violate any
governmental license or permit or any law, administrative regulation or
order or court order, writ, injunction or decree (subject to the
satisfaction of certain conditions imposed by the OTS in connection with
its approval of the Conversion Application), which breach, default,
encumbrance or violation would have a material adverse effect on the
financial condition, operations or business of the Company and the
Association, taken as a whole.
(xix) Subsequent to the respective dates as of which information is
given in the Registration Statement and Prospectus, except as otherwise may
be indicated or contemplated therein, none of the Company or the
Association has issued any securities which will remain issued at the
Closing Date or incurred any liability or obligation, direct or contingent,
or borrowed money, except borrowings or liabilities in the ordinary course
of business, or entered into any other transaction not in the ordinary
course of business and not consistent with prior practices, which is
material in light of the business of the Company and the Association, taken
as a whole.
(xx) The issuance and the sale of the Shares of the Company have
been duly authorized by all necessary action of the Company and approved by
the OTS and, when issued in accordance with the terms of the Plan and paid
for, shall be validly issued, fully paid and nonassessable and shall
conform to the description thereof contained in the Prospectus; the
issuance of the Shares is not subject to preemptive rights, except as set
forth in the Prospectus; and good title to the Shares will be transferred
by the Company upon issuance thereof against payment therefor, free and
clear of all claims, encumbrances, security interests and liens against the
Company whatsoever. The issuance and sale of the capital stock of the
Association to the Company has been duly authorized by all necessary action
of the Association and the Company and all appropriate regulatory
authorities (subject to the satisfaction of various conditions imposed by
the OTS in connection with its approvals of the Conversion Application and
the Holding Company Application), and such capital stock, when issued in
accordance with the terms of the Plan, will be fully paid and nonassessable
and will conform in all material respects to the description thereof
contained in the Prospectus.
Trident Securities, Inc.
Page 9
(xxi) No approval of any regulatory or supervisory or other public
authority is required in connection with the execution and delivery of this
Agreement or the issuance of the Shares, except such approvals as have been
obtained and except for the declaration of effectiveness of any required
post-effective amendment by the Commission and approval thereof by the OTS,
the issuance of the Association's Federal Stock Charter by the OTS, the
issuance of the Association's Articles of Association by the OCC, and as
may be required under the "blue sky" or securities laws of various
jurisdictions.
(xxii) All contracts and other documents required to be filed as
exhibits to the Registration Statement, the Conversion Application, the
Holding Company Application, the OTS Bank Notification, the OCC Conversion
Application or the Bank Holding Company Application have been filed with
the Commission, the OTS, the OCC or the Federal Reserve, as the case may
be.
(xxiii) The Company, the Association and the Subsidiary have timely
filed all required federal, state and local franchise tax returns, and no
deficiency has been asserted with respect to such returns by any taxing
authorities, and the Company, the Association and the Subsidiary have paid
all taxes that have become due and, to the best of their knowledge, have
made adequate reserves for accrued tax liabilities, except where any
failure to make such filings, payments and reserves, or the assertion of
such a deficiency, would not have a material adverse effect on the
financial condition or results of operations of the Company, the
Association and the Subsidiary, taken as a whole.
(xxiv) All of the loans represented as assets of the Association and
the Subsidiary as of the most recent date for which financial condition
data is included in the Prospectus meet or are exempt from all requirements
of federal, state or local law pertaining to lending, including without
limitation truth in lending (including the requirements of Regulation Z and
12 C.F.R. Part 226 and Section 563.99), real estate settlement procedures,
consumer credit protection, equal credit opportunity and all disclosure
laws applicable to such loans, except for violations which, if asserted,
would not have a material adverse effect on the Company, the Association
and the Subsidiary, taken as a whole.
(xxv) The records of Eligible Account Holders, Supplemental Eligible
Account Holders and Other Members (as those terms are defined in the Plan)
delivered to Trident by the Association or its agent for use during the
Conversion have been reviewed by the Association and are believed to be
accurate, reliable and complete and Trident shall have no liability to any
person relating to the reliability, accuracy or completeness of such
records or for any denial or allocation of a subscription to purchase
shares to any person based upon such records.
Trident Securities, Inc.
Page 10
(xxvi) None of the Company, the Association or the Subsidiary or, to
the best knowledge of the Company, the Association and the Subsidiary, the
employees of the Company, the Association or the Subsidiary, has made any
payment of funds of the Company, the Association or the Subsidiary
prohibited by law, and no funds of the Company, the Association or the
Subsidiary have been set aside to be used for any payment prohibited by
law.
(xxvii) To the best knowledge of the Company, the Association and the
Subsidiary, the Company, the Association and the Subsidiary are in
compliance with all laws, rules and regulations relating to environmental
protection and neither the Company, the Association nor the Subsidiary is
subject to liability under the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended, or any similar law,
except for violations which, if asserted, would not have a material adverse
effect on the Company, the Association and the Subsidiary, taken as a
whole. There are no actions, suits, regulatory investigations or other
proceedings pending or, to the best knowledge of the Company, the
Association or the Subsidiary, threatened against the Company, the
Association or the Subsidiary relating to environmental protection. To the
best knowledge of the Company, the Association and the Subsidiary, no
disposal, release or discharge of hazardous or toxic substances, pollutants
or contaminants, including petroleum and gas products, as any of such terms
may be defined under federal, state or local law, has been caused by the
Company, the Association or the Subsidiary or, to the best knowledge of the
Company, the Association and the Subsidiary, and except as already
disclosed in the Prospectus, has occurred on, in or at any of the
facilities or properties owned or leased by the Company, the Association or
the Subsidiary or in which the Association or the Subsidiary has a security
interest, except such disposal, release or discharge which would not have a
material adverse effect on the financial condition, operations, business,
assets or properties of the Company, the Association or the subsidiary,
taken as a whole.
(xxviii) All documents delivered by the Association or the Company or
their representatives in connection with the issuance and sale of the
Common Stock, except for those documents that were prepared by parties
other than the Association, the Company or their representatives, were, on
the dates on which they were delivered, true, complete and correct.
(b) Trident represents and warrants to the Company and the Association
that:
(i) Trident is registered as a broker-dealer and is in good standing
with the Commission and the NASD.
Trident Securities, Inc.
Page 11
(ii) Trident is validly existing as a corporation in good standing
under the laws of its jurisdiction of incorporation, with full corporate
power and authority to provide the services to be furnished to the Company
and the Association hereunder.
(iii) The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby have been duly and
validly authorized by all necessary action on the part of Trident, and this
Agreement is a legal, valid and binding obligation of Trident, enforceable
in accordance with its terms (except as the enforceability thereof may be
limited by bankruptcy, insolvency, moratorium, reorganization or similar
laws relating to or affecting the enforcement of creditors' rights
generally or the rights of creditors of registered broker-dealers accounts
of whose may be protected by the Securities Investor Protection Corporation
or by general equity principles, regardless of whether such enforceability
is considered in a proceeding in equity or at law, and except to the extent
that the provisions of Sections 8 and 9 hereof may be unenforceable as
against public policy or pursuant to Section 23A).
(iv) Trident and, to Trident's best knowledge, its employees, agents
and representatives who shall perform any of the services required
hereunder to be performed by Trident, shall be duly authorized and shall
have all licenses, approvals and permits necessary to perform such
services, and Trident is a registered selling agent in the jurisdictions in
which the Company is relying on such registration for the sale of the
Shares, and will remain so registered until the Conversion is consummated
or terminated.
(v) The execution and delivery of this Agreement by Trident, the
fulfillment of the terms set forth herein and the consummation of the
transactions contemplated hereby shall not violate or conflict with the
charter or bylaws of Trident or violate, conflict with or constitute a
breach of, or default (or an event which, with notice or lapse of time, or
both, would constitute a default) under, any material agreement, indenture
or other instrument by which Trident is bound or under any governmental
license or permit or any law, administrative regulation, authorization,
approval or order or court decree, injunction or order.
(vi) All funds received by Trident to purchase Common Stock will be
handled in accordance with Rule 15c2-4 under the Securities Exchange Act of
1934, as amended ("Exchange Act").
(vii) No action or proceeding against Trident before the Commission,
the NASD, any state securities commission, or any state or federal court is
pending or, to Trident's best knowledge, threatened concerning Trident's
activities as a broker-dealer.
Trident Securities, Inc.
Page 12
3. Employment of Trident; Sale and Delivery of the Shares. On the basis
------------------------------------------------------
of the representations and warranties herein contained, but subject to the terms
and conditions herein set forth, the Company and the Association hereby employ
Trident as their agent to utilize its best efforts to assist the Company with
the Company's sale of the Shares in the Offerings, and Trident hereby accepts
such employment. The employment of Trident hereunder shall terminate (a) forty-
five (45) days after the Subscription and Community Offering closes, unless the
Company and the Association, with the approval of the OTS, are permitted to
extend such period of time, or (b) upon consummation of the Conversion,
whichever date shall first occur.
In the event the Company is unable to sell a minimum of 191,250 Shares (or
such lesser amount as the OTS may permit) within the period herein provided,
this Agreement shall terminate, and the Company and the Association shall refund
promptly to any persons who have subscribed for any of the Shares, 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 other party hereunder, except as set forth in Sections 6, 8, 9 and 10
hereof. Appropriate arrangements for placing the funds received from
subscriptions for Shares in special interest-bearing accounts with the
Association until all Shares are sold and paid for will be made prior to the
commencement of the Subscription and Community Offering, with provision for
prompt refund to the purchasers as set forth above, or for delivery to the
Company if all Shares are sold.
If all conditions precedent to the consummation of the Conversion are
satisfied, including the sale of all Shares required by the Plan to be sold, the
Company agrees to issue or have issued such Shares and to release for delivery
certificates to subscribers thereof for such Shares on or as soon as possible
following the Closing Date against payment to the Company by any means
authorized pursuant to the Prospectus, at the principal office of the Company,
000 Xxxxxxxxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxxxx 00000, or at such other place as
shall be agreed upon between the parties hereto. The date upon which the
Company shall release or deliver the Shares sold in the Offerings, in accordance
with the terms hereof, is herein called the "Closing Date."
Trident agrees either (a) upon receipt of an executed order form of a
subscriber to forward the offering price of the Common Stock ordered on or
before twelve noon on the next business day following receipt or execution of an
order form by Trident to the Association for deposit in a segregated account or
(b) to solicit indications of interest in which event (i) Trident will
subsequently contact any potential subscriber indicating interest to confirm the
interest and give instructions to execute and return an order form or to receive
authorization to execute the order form on the subscriber's behalf, (ii) Trident
will mail acknowledgements of receipt of orders to each subscriber confirming
interest on the business day following such confirmation, (iii) Trident will
debit accounts of such subscribers on the third business day ("debit date")
following receipt of the confirmation referred to in
Trident Securities, Inc.
Page 13
(i), and (iv) Trident will forward completed order forms together with such
funds to the Association on or before twelve noon on the next business day
following the debit date for deposit in a segregated account. Trident
acknowledges that if the procedure in (b) is adopted, subscribers' funds are not
required to be in their accounts until the debit date.
Trident shall receive the following compensation and expense reimbursement
for its services hereunder:
(a) (i) a commission equal to 1.85% of the aggregate dollar amount of
Common Stock sold to Eligible Account Holders, Supplemental Eligible
Account Holders and Other Members who reside in the Association's Local
Community and a commission equal to 1.35% of the aggregate dollar amount of
Common Stock sold to Eligible Account Holders, Supplemental Eligible
Account Holders and Other Members who reside outside of the Association's
Local Community (excluding any Common Stock purchased by officers,
directors, employees of the Company or the Association or their associates
or any employee benefit plans of the Company or the Association); (ii) a
commission equal to 1.85% of the aggregate dollar amount of Common Stock
sold in the Community Offering to residents of the Association's Local
Community and a commission equal to 1.35% of the aggregate dollar amount of
Common Stock sold in the Community Offering to non-residents of the
Association's Local Community (excluding any Common Stock purchased by
officers, directors, employees of the Company or the Association or their
associates or any employee benefit plans of the Company or the
Association); and (iii) a commission to be agreed upon by Trident and the
Company for Shares sold by other member firms of the NASD through a
selected dealers arrangement in the Syndicated Community Offering, which
aggregate commission shall be determined at the discretion of the Company
and the Association with the advice of Trident. All such fees shall be
calculated based on the final midpoint appraised value and such fees shall
not exceed the amount of such calculation. All such fees shall be paid to
Trident in next-day funds on the Closing Date.
(b) Reimbursement for reasonable out-of-pocket allocable expenses,
including but not limited to travel, food, lodging and legal fees, incurred
by it whether or not the Offerings are successfully completed; provided,
however, that reimbursable legal fees and expenses will not exceed $22,500
and $1,500, respectively, and that reimbursable expenses of Trident will
not exceed $7,500, and, provided further, that neither the Company nor the
Association shall reimburse Trident for any of the foregoing expenses
accrued after Trident shall have notified the Company or the Association of
its election to terminate this Agreement pursuant to Section 11 hereof or
after such time as the Company or the Association shall have given notice
in accordance with Section 12 hereof that Trident is in breach of this
Agreement. Full reimbursement of Trident shall be made in next-day funds
on the
Trident Securities, Inc.
Page 14
Closing Date or, if the Conversion is not completed and is terminated for
any reason, within ten (10) business days of receipt by the Company of a
written request detailing allocable expenses from Trident for reimbursement
of such expenses. Trident acknowledges receipt of a $10,000 advance
payment from the Association, which shall be credited against the total
reimbursement due Trident hereunder. In the event this Agreement is
terminated pursuant to Section 11 hereof, Trident shall be reimbursed only
for its actual allocable expenses.
(c) Reimbursement for any expenses of the Company and the Association
set forth in Section 6 hereof to the extent paid by Trident on behalf of
the Company and the Association. Full reimbursement shall be made in next-
day funds on the Closing Date or, if the Conversion is not completed and is
terminated for any reason, within ten (10) business days of receipt by the
Company and the Association of a written request for such reimbursement
detailing such reimbursements.
Notwithstanding the limitations on reimbursement of Trident for its
allocable expenses provided in subsection (b) above and notwithstanding any
reimbursement of Trident pursuant to subsection (c) above, in the event that a
resolicitation or other event causes the Offerings to be extended beyond their
original expiration date, Trident shall be reimbursed for its reasonable
allocable expenses incurred during such extended period, provided that the
allowance for allocable expenses provided for in subsection (b) above has been
exhausted and subject to the following: such reimbursement shall be in an
amount equal to the product obtained by dividing $31,500 (the reimbursable
expenses and legal fees limitation set forth in Section (b) above by the total
number of days of the unextended Subscription Offering (calculated from the date
of the Prospectus to the intended close of the Subscription Offering as stated
in the Prospectus) and multiplying such product by the number of days of the
extension (that number of days from the date of the supplemental prospectus used
in the extended Subscription Offering to the closing of the extension of the
Subscription Offering described in such supplemental prospectus).
4. Offering. Subject to the provisions of Section 7 hereof, Trident is
--------
assisting the Company on a best efforts basis in offering a minimum of 191,250
and a maximum of 258,750 Shares, subject to adjustment up to 297,562 Shares
(except as the OTS may permit to be decreased or increased) in the Offerings.
The Shares are to be offered to the public at the price set forth on the cover
page of the Prospectus and the first page of this Agreement.
5. Further Agreements. The Company and the Association jointly and
------------------
severally covenant and agree that:
(a) Subsequent to the respective dates as of which information is given in
the Registration Statement and Prospectus and through and including the Closing
Date, except
Trident Securities, Inc.
Page 15
as otherwise may be indicated or contemplated therein, neither the Company nor
the Association will issue any securities which will remain issued at the
Closing Date or incur any liability or obligation, direct or contingent, or
borrow money, except borrowings or liabilities in the ordinary course of
business, or enter into any other transaction not in the ordinary course of
business and consistent with prior practices, which is material in light of the
financial condition, operations, business, properties or assets of the Company
and the Association, taken as a whole.
(b) If any Shares remain unsubscribed following completion of the
Subscription Offering and the Community Offering, the Company (i) will, if
deemed necessary, promptly file with the Commission a post-effective amendment
to such Registration Statement relating to the results of the Subscription and
the Community Offerings, any additional information with respect to the proposed
plan of distribution and any revised pricing information or (ii) if no such
post-effective amendment is required, will file with, or mail for filing to, the
Commission a prospectus or prospectus supplement containing information relating
to the results of the Subscription and Community Offerings and pricing
information pursuant to Rule 424(c) of the Securities Act Regulations, in either
case in a form reasonably acceptable to the Company and Trident.
(c) Upon consummation of the Conversion, the authorized, issued and
outstanding equity capital of the Company shall be within the range as set forth
in the Prospectus under the caption "Capitalization," and no Common Stock of the
Company shall be outstanding immediately prior to the Closing Date (other than
shares of Common Stock issued in connection with the initial capitalization of
the Company, which shares will be canceled upon consummation of the Conversion);
and the certificates representing the Shares will conform in all material
respects with the requirements of applicable laws and OTS Regulations.
(d) At all times subsequent to the date of the Prospectus through and
including the Closing Date (i) the Registration Statement and the Prospectus
will comply with the Securities Act and the Securities Act Regulations, (ii) the
Registration Statement 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, in light of the circumstances under which they were
made, not misleading, and (iii) the Prospectus will not contain any untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading. Agreements in this
subsection shall not apply to statements or omissions made in reliance upon and
in conformity with written information furnished to the Company or the
Association relating to Trident by or on behalf of Trident expressly for use in
the Registration Statement or Prospectus.
Trident Securities, Inc.
Page 16
(e) Upon amendment of the Association's charter and bylaws as provided in
the OTS Regulations, the Association's conversion to a national bank as provided
in the OCC Regulations and completion of the sale by the Company of the Shares
as contemplated by the Prospectus, (i) the Association will be converted to a
federally chartered capital stock savings bank and then to a national bank
pursuant to the Plan, in each case with full power and authority to own its
property and conduct its business as described in the Prospectus, (ii) all of
the authorized and outstanding capital stock of the Association will be owned of
record and beneficially by the Company, and (iii) the Company will have no
direct subsidiaries other than the Association.
(f) The Company shall deliver to Trident, from time to time, such number of
copies of the Prospectus as Trident reasonably may request. The Company
authorizes Trident to use the Prospectus in any lawful manner in connection with
the offer and sale of the Shares.
(g) The Company will notify Trident immediately, and confirm the notice in
writing, (i) when any post-effective amendment to the Registration Statement
becomes effective or any supplement to the Prospectus has been filed, (ii) of
the issuance by the Commission of any stop order relating to the Registration
Statement or of the initiation or the threat of any proceedings for that
purpose, (iii) of the receipt of any notice with respect to the suspension of
the qualification of the Shares for offering or sale in any jurisdiction, and
(iv) of the receipt of any comments from the staff of the Commission relating to
the Registration Statement. If the Commission enters a stop order relating to
the Registration Statement at any time, the Company will make every reasonable
effort to obtain the lifting of such order at the earliest possible moment.
(h) During the time when a prospectus is required to be delivered under the
Securities Act, the Company will comply with all requirements imposed upon it by
the Securities Act and by the Securities Act Regulations to permit the
continuance of offers and sales of or dealings in the Shares in accordance with
the provisions hereof and the Prospectus. If during the period when the
Prospectus is required to be delivered in connection with the offer and sale of
the Shares any event relating to or affecting the Company and the Association,
taken as a whole, shall occur as a result of which it is necessary, in the
reasonable opinion of counsel for Trident, to amend or supplement the Prospectus
in order to make the Prospectus not false or misleading in light of the
circumstances existing at the time it is delivered to a purchaser of the Shares,
the Company forthwith shall prepare and furnish to Trident a reasonable number
of copies of an amendment or amendments or of a supplement or supplements to the
Prospectus (in form and substance reasonably satisfactory to counsel for
Trident) which shall amend or supplement the Prospectus so that, as amended or
supplemented, the Prospectus shall not contain an untrue statement of a material
fact or omit to state a material fact necessary in order to make the statements
therein, in light of the circumstances existing at the time the
Trident Securities, Inc.
Page 17
Prospectus is delivered to a purchaser of the Shares, not misleading. The
Company will not file or use any amendment or supplement to the Registration
Statement or the Prospectus unless Trident has been first furnished a copy or if
Trident shall reasonably object after having been furnished such copy. For the
purposes of this subsection the Company and the Association shall furnish such
information with respect to themselves as Trident from time to time may
reasonably request.
(i) The Company and the Association will take all reasonably necessary
action as may be required to qualify or register the Shares for offer and sale
by the Company under the securities or blue sky laws of such jurisdictions as
Trident and the Company or its counsel may agree upon; provided, however, that
the Company shall not be obligated to qualify as a foreign corporation to do
business under the laws of any such jurisdiction. In each jurisdiction where
such qualification or registration shall be effected, the Company, unless
Trident agrees that such action is not necessary or advisable in connection with
the distribution of the Shares, shall file and make such statements or reports
as are, or reasonably may be, required by the laws of such jurisdiction.
(j) Appropriate entries will be made in the financial records of the
Association to establish a liquidation account for the benefit of Eligible
Account Holders and Supplemental Eligible Account Holders (as those terms are
defined in the Plan) in accordance with the OTS Regulations.
(k) The Company will file a registration statement for the Common Stock
under Section 12(g) of the Exchange Act prior to completion of the Offerings
pursuant to the Plan and shall request that such registration statement be
effective upon completion of the Conversion. The Company shall maintain the
effectiveness of such registration for a minimum period of three years or for
such shorter period as may be required by applicable law.
(l) The Company will make generally available to its security holders as
soon as practicable, but not later than 90 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 quarter next
following the effective date (as defined in said Rule 158) of the Registration
Statement.
(m) For a period of three (3) years from the date of this Agreement, the
Company will furnish to Trident, as soon as publicly available after the end of
each fiscal year, a copy of its annual report to shareholders for such year; and
the Company will furnish to Trident (i) as soon as publicly available, a copy of
each report or definitive proxy statement of the Company filed with the
Commission under the Exchange Act or mailed to shareholders, and
Trident Securities, Inc.
Page 18
(ii) from time to time, such other public information concerning the Company as
Trident may reasonably request.
(n) The Company shall use the net proceeds from the sale of the Shares in
the manner set forth in the Prospectus.
(o) The Company shall not deliver the Shares until each and every condition
set forth in Section 7 hereof has been satisfied, unless such condition is
waived in writing by Trident.
(p) The Company shall advise Trident, if necessary, as to the allocation of
deposits, in the case of Eligible Account Holders and Supplemental Eligible
Account Holders, and votes, in the case of Other Members, and of the Shares in
the event of an oversubscription, and shall provide Trident final instructions
as to the allocation of the Shares ("Allocation Instructions") in such event and
the Allocation Instructions shall be accurate, reliable and complete. Trident
shall be entitled to rely on the Allocation Instructions and shall have no
liability in respect of its reliance thereon, including without limitation, no
liability for or related to any denial or grant of a subscription in whole or in
part.
(q) The Company and the Association will take such actions and furnish such
information as are reasonably requested by Trident in order for Trident to
comply with the NASD's "Interpretation Relating to Free-Riding and Withholding."
(r) At the Closing Date, the Company and the Association will have
completed the conditions precedent to, and shall have conducted the Conversion
in all material respects in accordance with, the Plan, OTS Regulations, OCC
Regulations, Regulation Y and all other applicable laws, regulations, published
decisions and orders, including all terms, conditions, requirements and
provisions precedent to the Conversion imposed by the OTS, the OCC and the
Federal Reserve.
(s) The Company will use its best efforts to obtain approval for and
maintain quotation of its shares of common stock on The Nasdaq Stock Market
effective on or prior to the Closing Date.
(t) Upon consummation of the Conversion, neither the Company nor the
Association nor the Subsidiary will be in violation of any rule or regulation of
the OCC, the FDIC or the Federal Reserve that could reasonably be expected to
result in any enforcement action against the Company, the Association or the
Subsidiary, or their officers or directors, that might have a material adverse
effect on the financial condition, operations, businesses, assets or properties
of the Company, the Association, and the Subsidiary, taken as a whole.
Trident Securities, Inc.
Page 19
6. Payment of Expenses. Subject to Section 3(c) hereof, whether or not
-------------------
the Conversion is consummated, the Company and the Association shall pay the
following expenses: (a) all regulatory filing fees, including but not limited to
those payable to the Commission, OTS, "blue sky" authorities and the NASD
(including fees payable to the NASD for Trident's filing pursuant to the NASD
Corporate Finance Rule), (b) all stock issue and transfer taxes which may be
payable with respect to the sale of the Shares, (c) attorneys' fees of the
Company and the Association, (d) attorneys' fees relating to any required "blue
sky" laws research and filings, (e) telephone charges, (f) air freight, (g)
rental equipment, (h) supplies, (i) transfer agent and registrar fees and
expenses, (j) auditing and accounting fees and expenses, (k) costs of printing
and mailing all documents necessary in connection with the Conversion, and (l)
slide production expenses in connection with any community investor meetings to
be held by Trident.
7. Conditions of Trident's Obligations. Except as may be waived in
-----------------------------------
writing by Trident, the obligations of Trident as provided herein shall be
subject to the accuracy of the representations and warranties contained in
Section 2 hereof as of the date hereof and as of the Closing Date, to the
performance by the Company and the Association of their obligations hereunder,
and to the following conditions:
(a) At the Closing Date, Trident shall receive the favorable opinion
of Xxxx Xxxxxx Xxxxxx Xxxxxxxx & Xxxxxx, P.C., special counsel for the
Company and the Association, dated the Closing Date, addressed to Trident,
in form and substance reasonably satisfactory to counsel for Trident and
stating that:
(i) the Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Delaware, and the Association is validly existing in good standing
as a mutual savings bank under the laws of the United States, each
with full power and authority to own its properties and conduct its
business as described in the Prospectus;
(ii) the Association is a member of the Federal Home Loan Bank of
Kansas City; the deposit accounts of the Association are insured by
the SAIF up to the applicable legal limits and will remain so insured
upon consummation of the Conversion; and no action or proceeding to
suspend or revoke such membership or insurance coverage is pending or,
to such counsel's Actual Knowledge, threatened;
(iii) the activities of the Company, the Association and the
Subsidiary as described in the Prospectus are permitted under the HOLA
and OTS Regulations and, upon consummation of the Conversion, will be
permitted under the NBA and OCC Regulations and the FRA and Regulation
Y;
Trident Securities, Inc.
Page 20
(iv) the Subsidiary is validly existing as a corporation in good
standing under the laws of the State of Missouri with full power and
authority to own its properties and conduct its business as described
in the Prospectus; to such counsel's Actual Knowledge, the Subsidiary
has obtained all licenses, permits and other governmental
authorizations required for the conduct of its business as described
in the Prospectus, except where the failure to obtain such licenses,
permits or governmental authorization would not have a material
adverse effect on the financial condition, operations, business,
properties or assets of the Subsidiary; to such counsel's Actual
Knowledge, all of the leases and subleases material to the business of
the Subsidiary under which the Subsidiary holds properties are in full
force and effect; to such counsel's Actual Knowledge, the Subsidiary
is not in violation of its articles of incorporation or bylaws; and to
such counsel's Actual Knowledge, all of the outstanding stock of the
Subsidiary has been duly authorized and is validly issued, fully paid
and nonassessable, and such stock is owned directly by the
Association, free and clear of all material liens, encumbrances or
other claims or restrictions;
(v) the Company, the Association and the Subsidiary are each
duly qualified to do business and are in good standing as a foreign
corporation in each jurisdiction where the ownership or leasing of its
properties or the conduct of its business requires such qualification,
unless the failure to be so qualified would not have a material
adverse effect on the Company, the Association and the Subsidiary,
taken as a whole.
(vi) to such counsel's Actual Knowledge, the Association has
obtained all licenses, permits and other governmental authorizations
required for the conduct of its business as described in the
Prospectus, except where the failure to obtain such licenses, permits
or governmental authorizations would not have a material adverse
effect on the financial condition, operations, business, properties or
assets of the Company and the Association, taken as a whole; to such
counsel's Actual Knowledge, all of the leases and subleases material
to the business of the Association under which the Association holds
properties are in full force and effect; to such counsel's Actual
Knowledge, the Association is not in violation of its charter or
bylaws;
(vii) the Plan has been duly adopted and approved by the Boards
of Directors of the Association and the Company and the members of the
Association; the Plan complies with, and to such counsel's Actual
Knowledge, the Conversion has been effected in all material respects
in accordance with, the HOLA and the OTS Regulations, the NBA and OCC
Regulations, and the FRA and Regulation Y; to such counsel's Actual
Knowledge, all of the
Trident Securities, Inc.
Page 21
terms, conditions, requirements and provisions with respect to the
Plan and the Conversion imposed by the OTS, the OCC and the Federal
Reserve, except with respect to the Conversion Application (which is
covered by opinion (xix) below) and the filing or submission of
certain required post-Conversion reports or other materials by the
Company or the Association, have been complied with by the Company and
the Association; and, to such counsel's Actual Knowledge, no person
has sought to obtain regulatory or judicial review of the final action
of the OTS in approving the Plan;
(viii) the Company has authorized Common Stock as set forth in
the Registration Statement and the Prospectus, and the description
thereof in the Registration Statement and the Prospectus is accurate
and complete in all material respects;
(ix) the issuance and sale of the Shares have been duly and
validly authorized by all necessary corporate action on the part of
the Company; the Shares, upon receipt of consideration and issuance in
accordance with the terms of the Plan and this Agreement, will be
validly issued, fully paid, nonassessable and, except as disclosed in
the Prospectus, free of preemptive rights, and good title thereto
shall be transferred by the Company free and clear of all claims,
encumbrances, security interests and liens created by the Company;
(x) the certificates for the Shares are in due and proper
form and comply in all material respects with applicable Delaware law
and OTS Regulations;
(xi) the issuance and sale of the capital stock of the
Association to the Company have been duly authorized by all necessary
corporate action of the Association and the Company and have received
the approvals of the OTS and the Federal Reserve, and such capital
stock, upon receipt of payment and issuance in accordance with the
terms of the Plan, will be validly issued, fully paid and
nonassessable;
(xii) subject to the satisfaction of the conditions to the OTS
approval of the Conversion Application and the Holding Company
Application the OCC approval of the OCC Conversion Application and the
Federal Reserve approval of the Bank Holding Company Application, no
further approval, authorization, consent or other order of any
regulatory agency is required in connection with the execution and
delivery of this Agreement, the issuance and sale of the Shares and
the consummation of the Conversion, except with respect to the
issuance to the Association's Federal Stock Charter by the OTS
Trident Securities, Inc.
Page 22
and the issuance of the Association's Articles of Association by the
OCC, and except as may be required under the "blue sky" securities
laws of various jurisdictions and the regulations of the NASD (as to
which no opinion need be rendered);
(xiii) the execution and delivery of this Agreement and the
consummation of the Conversion have been duly and validly authorized
by all necessary corporate action on the part of each of the Company
and the Association; and this Agreement is a legal, valid and binding
obligation of each of the Company and the Association, enforceable in
accordance with its terms (except as the enforceability thereof may be
limited by (i) bankruptcy, insolvency, moratorium, reorganization,
receivership, conservatorship or other similar laws relating to or
affecting the enforcement of creditors' rights generally or the rights
of creditors of depository institutions whose accounts are insured by
the FDIC or savings and loan holding companies the accounts of whose
subsidiaries are insured by the FDIC; (ii) general equity principles,
regardless of whether such enforceability is considered in a
proceeding in equity or at law, or (iii) laws relating to the safety
and soundness of insured depository institutions and their affiliates,
and except to the extent that the provisions of Sections 8 and 9
hereof may be unenforceable as against public policy or applicable
law, including but not limited to, Section 23A of the Federal Reserve
Act, as amended);
(xiv) except as set forth in the Prospectus, there are no legal
or governmental proceedings pending or, to such counsel's Actual
Knowledge, threatened against or involving the assets of the Company,
the Association or the Subsidiary which would have a material adverse
effect on the Company, the Association and the Subsidiary, taken as a
whole (provided that for this purpose such counsel need not regard any
litigation or governmental procedure to be "threatened" unless the
potential litigant or government authority has manifested to the
management of the Company or the Association, or to such counsel, a
present intention to initiate such litigation or proceeding);
(xv) the statements in the Prospectus under the captions
"Regulation," "Taxation," "Dividends," "Certain Restrictions on
Acquisition of the Company" and "Description of Capital Stock,"
insofar as they are, or refer to, statements of federal law or legal
conclusions (excluding financial or statistical data or stock
valuation information included therein, as to which an opinion need
not be expressed), have been prepared or reviewed by such counsel and
are accurate and complete in all material respects;
Trident Securities, Inc.
Page 23
(xvi) the Form AC, the Holding Company Application and the OTS
Bank Notification have been approved by the OTS, and the Prospectus
and the Proxy Statement have been authorized for use by the OTS; the
Registration Statement has been declared effective by the Commission;
the OCC Conversion Application has been approved by the OCC; the Bank
Holding Company Application has been approved by the Federal Reserve;
and no proceedings are pending by or before the OTS, the Commission,
the OCC or the Federal Reserve seeking to revoke or rescind the orders
declaring the Registration Statement effective or approving the OCC
Conversion Application, the Holding Company Application, the OTS Bank
Notification, or the Conversion Application, to such counsel's Actual
Knowledge, are contemplated or threatened (provided that for this
purpose such counsel need not regard any litigation or governmental
procedure to be "threatened" unless the potential litigant or
government authority has manifested to the management of the Company
or the Association, or to such counsel, a present intention to
initiate such litigation or proceeding);
(xvii) the execution and delivery of this Agreement and the
consummation of the Conversion by the Company and the Association do
not conflict with or result in a breach of the charter, certificate of
incorporation or bylaws of the Company or the Association (in either
mutual or stock form), or, to such counsel's Actual Knowledge,
constitute a breach of or default (or an event which, with notice or
lapse of time or both, would constitute a default) under, give rise to
any right of termination, cancellation or acceleration contained in,
or result in the creation or imposition of any lien, charge or other
encumbrance upon any of the properties or assets of the Company or the
Association pursuant to any of the terms, provisions or conditions of,
any material agreement, contract, indenture, bond, debenture, note,
instrument or obligation to which the Company or the Association is a
party (other than the establishment of the liquidation account
pursuant to the Plan) or violate any governmental license or permit or
any enforceable published law, administrative regulation or order or
court order, writ, injunction or decree (subject to the satisfaction
of certain conditions imposed by the OTS in connection with its
approval of the Conversion Application, the OTS Bank Notification, and
the Holding Company Application, the OCC in connection with its
approval of the OCC Conversion Application, or the Federal Reserve in
connection with its approval of the Bank Holding Company Application),
which breach, default, encumbrance or violation would have a material
adverse effect on the financial condition, operations, business,
assets or properties of the Company and the Association taken as a
whole;
Trident Securities, Inc.
Page 24
(xviii) to such counsel's Actual Knowledge, there has been no
breach of any provision of the Company's, the Association's or the
Subsidiary's charter, certificate of incorporation or bylaws or breach
or default (or the occurrence of any event which, with notice or lapse
of time or both, would constitute a default) by the Company, the
Association or the Subsidiary under any agreement, contract,
indenture, bond, debenture, note, instrument or obligation to which
the Company, the Association or the Subsidiary is a party or by which
any of them or any of their respective assets or properties may be
bound, which breach or default would have a material adverse effect on
the financial condition, operations, business, assets or properties of
the Company, the Association and the Subsidiary taken as a whole;
(xix) at the time the Conversion Application was approved by
the OTS and the Registration Statement was declared effective by the
Commission, the Conversion Application and the Registration Statement
(including the Prospectus and the Proxy Statement contained therein),
complied as to form in all material respects with the requirements of
the Securities Act, the HOLA, the Securities Act Regulations and the
OTS Regulations, as the case may be (except as to information provided
in writing by Trident with respect to Trident included therein and
financial statements, notes to financial statements, financial tables
and other financial and statistical data and stock valuation
information included therein, as to which no opinion need be
rendered); and all documents and exhibits required to be filed with
the Conversion Application and the Registration Statement have been so
filed and the descriptions in the Conversion Application and the
Registration Statement of such documents and exhibits are accurate and
complete in all material respects;
(xx) at the time the OTS Bank Notification and the Holding
Company Application, the OCC Conversion Application, and the Bank
Holding Company Application were approved by the OTS, the OCC and the
Federal Reserve, respectively, the OTS Bank Notification, the OCC
Conversion Application and the Bank Holding Company Application
complied as to form in all material respects with the requirements of
the HOLA and the OTS Regulations, the NBA and the OCC Regulations, and
the FRA and Regulation Y, respectively; and all documents and exhibits
required to be filed with the OTS Bank Notification and the Holding
Company Application, the OCC Conversion Application and the Bank
Holding Company Application have been so filed and the descriptions in
the OTS Bank Notification, the OCC Conversion Application and the Bank
Holding Company Application of such documents and exhibits are
accurate and complete in all material respects; and
Trident Securities, Inc.
Page 25
(xxi) upon the effectiveness of the Association's stock charter
and bylaws in accordance with applicable regulations, the conversion
of the association to a national bank and completion of the sale by
the Company of the Shares as contemplated by the Prospectus and the
Plan, (i) the Association will be converted to a permanent capital
stock savings bank under the laws of the United States and then to a
national bank under the laws of the United States, in each case with
full power and authority to own its property and conduct its business
as described in the Prospectus, and (ii) all of the outstanding
capital stock of the Association will be owned of record and, to such
counsel's Actual Knowledge, beneficially by the Company, free and
clear of all liens, charges, encumbrances and restrictions.
In rendering such opinions, such counsel may rely as to certain
matters of fact on certificates of executive officers and directors of the
Company and the Association and certificates of public officials delivered
pursuant hereto. Such counsel may assume that any agreement is the valid and
binding obligation of any parties to such agreement other than the Company, the
Association and the Subsidiary. The opinion of Xxxx Xxxxxx Xxxxxx Xxxxxxxx &
Xxxxxx, P.C. shall be limited to matters governed by federal law and, with
respect to clauses (i), (viii) and (x), the Delaware General Corporation Law,
and with respect to clauses (iv) and (xv), the State of Missouri Business
Corporation Act. Such opinion shall be governed by, and interpreted in
accordance with, the Legal Opinion Accord ("Accord") of the ABA Section of
Business Law (1991), and, as a consequence, references in such opinion to such
counsel's "Actual Knowledge" shall be as such term is defined in the Accord (or
knowledge based on certificates). For purposes of such opinion, no proceeding
shall be deemed to be pending, no order or stop order shall be deemed to be
issued, and no action shall be deemed to be instituted unless, in each case, a
director or executive officer of the Company or the Association, or its counsel,
shall have received a copy of such proceeding, order, stop order or action. Such
opinion may be limited to statutes, regulations and judicial interpretations and
to facts as they exist as of the date of such opinions. In rendering such
opinion, such counsel need assume no obligation to revise or supplement it
should such statutes, regulations and judicial interpretations be changed by
legislative or regulatory action, judicial decision or otherwise. Such counsel
need express no view, opinion or belief with respect to whether any proposed or
pending legislation, if enacted, or any proposed or pending regulations or
policy statements issued by any regulatory agency, whether or not promulgated
pursuant to any such legislation, would affect the validity of the execution and
delivery by the Company and the Association of this Agreement or the issuance of
the Shares.
(b) At the Closing Date, Trident shall receive the letter of Xxxx
Xxxxxx Xxxxxx Xxxxxxxx & Xxxxxx, P.C. special counsel for the Company and the
Trident Securities, Inc.
Page 26
Association, dated the Closing Date, addressed to Trident, in form and
substance reasonably satisfactory to counsel for Trident and to the effect
that: (i) based on such counsel's participation in conferences with
representatives of the Company, the Association, its counsel, the
independent appraiser, the independent certified public accountants,
Trident and its counsel, review of documents and applicable law (including
the requirements of Form SB-2) and the experience such counsel has gained
in its practice under the Securities Act (relying as to factual matters on
certificates of officers and other written factual representations by the
Company and the Association), nothing has come to such counsel's attention
that would lead it to believe that the Registration Statement, as amended
or supplemented (except as to information in respect of Trident contained
therein and except as to the financial statements, notes to financial
statements, financial tables and other financial and statistical data and
stock valuation information contained therein, as to which such counsel
need express no view), at the time it became effective contained any untrue
statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements made therein, in
light of the circumstances under which they were made, not misleading, and
that the Prospectus, as amended or supplemented (except as to information
in respect of Trident contained therein and except as to financial
statements, notes to financial statements, financial tables and other
financial and statistical data and stock valuation information contained
therein as to which such counsel need express no view), at the time the
Prospectus was filed with the Commission under Rule 424(b) of the
Securities Act regulations and at the Closing Date, contained any untrue
statement of a material fact or omitted to state a material fact necessary
to make the statements therein, in light of the circumstances under which
they were made, not misleading (in issuing such letter, such counsel may
indicate that it has not confirmed the accuracy or completeness of or
otherwise verified the factual information contained in the Registration
Statement or the Prospectus and that it does not assume any responsibility
for the accuracy or completeness thereof.)
(c) Counsel for Trident shall have been furnished such documents as
they reasonably may require for the purpose of enabling them to review or
pass upon the sale of the Shares as herein contemplated and related
proceedings, and for the purpose of evidencing the accuracy, completeness
or satisfaction of any of the representations, warranties or conditions
herein contained, including but not limited to, resolutions of the Board of
Directors of the Company and the Association regarding the authorization of
this Agreement and the transactions contemplated hereby.
(d) Prior to and at the Closing Date, in the reasonable opinion of
Trident, (i) there shall have been no material adverse change in the
financial condition, business, operations, assets or properties of the
Company and the Association, taken
Trident Securities, Inc.
Page 27
as a whole, since the latest date as of which such condition is set forth
in the Prospectus, except as referred to or contemplated therein; (ii)
there shall have been no transaction entered into by the Company or the
Association after the latest date as of which the financial condition of
the Company or the Association is set forth in the Prospectus other than
transactions referred to or contemplated therein, transactions in the
ordinary course of business, and transactions which are not material to the
Company and the Association, taken as a whole; (iii) none of the Company or
the Association shall have received from the OTS, the OCC, the Federal
Reserve or the Commission any directive (oral or written) to make any
change in the method of conducting their respective businesses which is
material to the business of the Company and the Association, taken as a
whole, with which they have not complied; (iv) no action, suit or
proceeding, at law or in equity or before or by any federal or state
commission, board or other administrative agency, shall be pending or
threatened against the Company or the Association or affecting any of their
respective assets, wherein an unfavorable decision, ruling or finding would
have a material adverse effect on the business, operations, financial
condition or income of the Company and the Association, taken as a whole;
and (v) the Shares shall have been qualified or registered for offering and
sale by the Company under the securities or "blue sky" laws of such
jurisdictions as Trident and the Company shall have agreed upon.
(e) At the Closing Date, Trident shall receive a certificate of the
principal executive officer and the principal financial officer of each of
the Company and the Association, dated the Closing Date, to the effect
that: (i) they have examined the Prospectus and, at the time the Prospectus
became authorized for final use, the Prospectus did not contain an untrue
statement of a material fact or omit to state a material fact necessary in
order to make the statements therein, in light of the circumstances under
which they were made, not misleading with respect to the Company or the
Association; (ii) since the date the Prospectus became authorized for final
use, no event has occurred which should have been set forth in an amendment
or supplement to the Prospectus which has not been so set forth, including
specifically, but without limitation, any material adverse change in the
business, financial condition, operations, assets or properties of the
Company or the Association and, the conditions set forth in clauses (ii)
through (iv) inclusive of subsection (d) of this Section 7 have been
satisfied; (iii) no order has been issued by the Commission, the OTS, the
OCC or the Federal Reserve to suspend the Offerings or the effectiveness of
the Prospectus, and, to the best knowledge of such officers, no action for
such purposes has been instituted or threatened by the Commission or the
OTS, the OCC or the Federal Reserve; (iv) to the best knowledge of such
officers, no person has sought to obtain review of the final actions of the
OTS approving the Plan; and (v) all of the representations and warranties
contained in
Trident Securities, Inc.
Page 28
Section 2 of this Agreement are true and correct, with the same force and
effect as though expressly made on the Closing Date.
(f) At the Closing Date, Trident shall receive, among other documents,
(i) copies of the letters from the OTS approving the Conversion
Application, the OTS Bank Notification and the Holding Company Application
and authorizing the use of the Prospectus and the Proxy Statement, (ii) a
copy of the order of the Commission declaring the Registration Statement
effective; (iii) a copy of the letter from the OCC approving the OCC
Conversion Application, (iv) a copy of the letter from the Federal Reserve
approving the Bank Holding Company Application; (v) copy of the certificate
from the OTS evidencing the corporate existence of the Association; (vi)
copy of the certificate from the FDIC evidencing the insured status of the
Association, (vii) a copy of the letter from the appropriate Delaware
authority evidencing the incorporation (and, if generally available from
such authority, good standing) of the Company; (viii) a copy of the
Company's certificate of incorporation certified by the appropriate
Delaware governmental authority; and, (ix) if available, a copy of the
letter from the OTS approving the Association's Federal Stock Charter.
(g) As soon as available after the Closing Date, Trident shall receive
a certified copy of the Association's Federal Stock Charter as executed by
the OTS and a certified copy of the Association's Articles of Association
as executed by the OCC.
(h) Concurrently with the execution of this Agreement, Trident
acknowledges receipt of a letter from Xxxxxxxxx, Constant & Xxxxxx, LLC
independent certified public accountants, addressed to Trident and the
Company, in substance and form reasonably satisfactory to counsel for
Trident, with respect to the consolidated financial statements of the
Association and certain financial information contained in the Prospectus.
(i) At the Closing Date, Trident shall receive a letter in form and
substance reasonably satisfactory to counsel for Trident from Xxxxxxxxx,
Constant & Xxxxxx, LLC independent certified public accountants, dated the
Closing Date and addressed to Trident and the Company, confirming the
statements made by them in the letter delivered by them pursuant to the
preceding subsection as of a specified date not more than five (5) days
prior to the Closing Date.
All such opinions, certificates, letters and documents shall be in
compliance with the provisions hereof only if they are, in the reasonable
opinion of Trident and its counsel, satisfactory to Trident and its counsel.
Any certificates signed by an officer or director of the Company or the
Association prepared for Trident's reliance and delivered to Trident or to
counsel for Trident shall be deemed a representation and warranty by the Company
and the Association to Trident as to the statements made therein. If any
condition to
Trident Securities, Inc.
Page 29
Trident's obligations hereunder to be fulfilled prior to or at the Closing Date
is not so fulfilled, Trident may terminate this Agreement or, if Trident so
elects, may waive in writing any such conditions which have not been fulfilled,
or may extend the time of their fulfillment.
8. Indemnification.
---------------
(a) The Company and the Association jointly and severally agree to
indemnify and hold harmless Trident, its officers, directors and employees and
each person, if any, who controls Trident within the meaning of Section 15 of
the Securities Act or Section 20(a) of the Exchange Act, against any and all
loss, liability, claim, damage and expense whatsoever and shall further promptly
reimburse such persons for any legal or other expenses reasonably incurred by
each or any of them in investigating, preparing to defend or defending against
any action, proceeding or claim (whether commenced or threatened) arising out of
or based upon any untrue or alleged untrue statement of a material fact or the
omission or alleged omission of a material fact required to be stated or
necessary to make the statements, in light of the circumstances under which they
were made, not misleading in (i) the Registration Statement or the Prospectus or
(ii) any application (including the Registration Statement and the Form AC) or
other document or communication (in this Section 8 collectively called
"Application") prepared or executed by or on behalf of the Company, the
Association or based upon written information furnished by or on behalf of the
Company or the Association, filed in any jurisdiction to register or qualify the
Shares under the securities laws thereof or filed with the OTS or Commission
with respect to the offering of the Shares, unless such statement or omission
was made in reliance upon and in conformity with information furnished in
writing to the Company or the Association with respect to Trident by or on
behalf of Trident expressly for use in the Prospectus or any amendment or
supplement thereof or in any Application, as the case may be.
(b) The Company shall indemnify and hold Trident harmless for any
liability whatsoever arising out of (i) the Allocation Instructions or (ii) any
records of Eligible Account Holders, Supplemental Eligible Account Holders and
Other Members (as those terms are defined in the Plan) delivered to Trident by
the Association or its agents for use during the Conversion.
(c) Trident agrees to indemnify and hold harmless the Company and the
Association, their officers, directors and employees and each person, if any,
who controls the Company and the Association within the meaning of Section 15 of
the Securities Act or Section 20(a) of the Exchange Act, to the same extent as
the foregoing indemnity from the Company and the Association to Trident, but
only with respect to statements or omissions, if any, made in the Prospectus or
any amendment or supplement thereof, in any Application or to a purchaser of the
Shares in reliance upon, and in conformity with,
Trident Securities, Inc.
Page 30
information furnished in writing to the Company or the Association with respect
to Trident by or on behalf of Trident expressly for use in the Prospectus or any
amendment or supplement thereof or in any Application.
(d) Promptly after receipt by an indemnified party under this Section 8 of
notice of any action, proceeding or claim (whether commenced or threatened) such
indemnified party will, if a claim in respect thereof is to be made against the
indemnifying party under this Section 8, notify the indemnifying party of such
action, proceeding or claim; but the omission so to notify the indemnifying
party will not relieve it from any liability which it may have to any
indemnified party otherwise than under this Section 8. In case any such action
is brought against any indemnified party, and it notifies the indemnifying party
of the commencement thereof, the indemnifying party will be entitled to
participate therein and, to the extent that it may wish, jointly with the other
indemnifying party similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party, and after notice from the
indemnifying party to such indemnified party of its election so to assume the
defense thereof, the indemnifying party will not be liable to such indemnified
party under this Section 8 for any legal or other expenses subsequently incurred
by such indemnified party in connection with the defense thereof other than the
reasonable cost of investigation except as otherwise provided herein. In the
event the indemnifying party elects to assume the defense of any such action and
retain counsel acceptable to the indemnified party, the indemnified party may
retain additional counsel, but shall bear the fees and expenses of such counsel
unless (i) the indemnifying party shall have specifically authorized the
indemnified party to retain such counsel or (ii) the parties to such suit
include such indemnifying party and the indemnified party, and such indemnified
party shall have been advised by counsel that one or more material legal
defenses may be available to the indemnified party which may not be available to
the indemnifying party, in which case the indemnifying party shall not be
entitled to assume the defense of such suit notwithstanding the indemnifying
party's obligation to bear the fees and expenses of such counsel. In no event
shall the indemnifying parties be liable for the fees and expenses of more than
one separate firm of attorneys (and any special counsel that said firm may
retain) for all indemnified parties in connection with any one action,
proceeding, claim or suit or separate but similar or related actions,
proceedings or claims in the same jurisdiction arising out of the same general
allegations or circumstances. An indemnifying party against whom indemnity may
be sought shall not be liable to indemnify an indemnified party under this
Section 8 if any settlement of any such action is effected without such
indemnifying party's consent. To the extent applicable, this Section 8 is
subject to and limited by public policy and the provisions of applicable law,
including but not limited to, Section 23A.
9. Contribution. In order to provide for just and equitable contribution
------------
in circumstances in which the indemnity agreement provided for in Section 8
above is for any reason held to be unavailable to Trident, the Company and/or
the Association other than in accordance with its terms, the Company and the
Association or Trident shall contribute
Trident Securities, Inc.
Page 31
to the aggregate losses, liabilities, claims, damages, and expenses of the
nature contemplated by said indemnity agreement incurred by the Company and the
Association or Trident (i) in such proportion as is appropriate to reflect the
relative benefits received by the Company and the Association on the one hand
and Trident on the other from the offering of the Shares or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above, but also the relative fault of the Company or
the Association on the one hand and Trident on the other hand in connection with
the statements or omissions which resulted in such losses, claims, damages,
liabilities or judgments, as well as any other relevant equitable
considerations. The relative benefits received by the Company and the
Association on the one hand and Trident on the other shall be deemed to be in
the same proportion as the total net proceeds from the Conversion received by
the Company and the Association bear to the total fees received by Trident under
this Agreement. The relative fault of the Company or the Association on the one
hand and Trident on the other shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company or the Association or by Trident and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
The Company and the Association and Trident agree that it would not be just
and equitable if contribution pursuant to this Section 9 were determined by pro
rata allocation or by any other method of allocation which does not take account
of the equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an indemnified party as a result of
the losses, claims, damages, liabilities or judgments referred to in the
immediately preceding paragraph shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses reasonably incurred by
the indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this Section 9, Trident
shall not be required to contribute any amount in excess of the amount by which
fees owed Trident pursuant to this Agreement exceeds the amount of any damages
which Trident has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. 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 is not
guilty of such fraudulent misrepresentation. To the extent applicable, this
Section 9 is subject to and limited by public policy and the provisions of
applicable law, including but not limited to, Section 23A.
10. Survival of Agreements, Representations and Indemnities. The
--------------------------------------------------------
respective indemnities of the Company and the Association and Trident and the
representation and warranties of the Company and the Association and of Trident
set forth in or made pursuant to this Agreement shall remain in full force and
effect, regardless of any
Trident Securities, Inc.
Page 32
termination or cancellation of this Agreement or any investigation made by or on
behalf of Trident or the Company or the Association or any controlling person or
indemnified party referred to in Section 8 hereof, and shall survive any
termination or consummation of this Agreement and/or the issuance of the Shares,
and any legal representative of Trident, the Company, the Association and any
such controlling persons shall be entitled to the benefit of the respective
agreements, indemnities, warranties and representations.
11. Termination. Trident may terminate this Agreement by giving the
-----------
notice indicated below in this Section at any time after this Agreement becomes
effective as follows:
(a) If any domestic or international event or act or occurrence has
materially disrupted the United States securities markets such as to make it, in
Trident's reasonable opinion, impracticable to proceed with the offering of the
Shares; or if trading on the New York Stock Exchange shall have suspended; or if
the United States shall have become involved in a war or major hostilities; or
if a general banking moratorium has been declared by a state or federal
authority which has material effect on the Association or the Conversion; or if
a moratorium in foreign exchange trading by major international banks or persons
has been declared; or if there shall have been a material change in the
capitalization, condition or business of the Company, or if the Association
shall have sustained a material or substantial loss by fire, flood, accident,
hurricane, earthquake, theft, sabotage or other calamity or malicious act,
whether or not said loss shall have been insured; or if there shall have been a
material change in the condition or prospects of the Company or the Association.
(b) Any party hereto may terminate this Agreement by giving notice
pursuant to Section 12 hereof of a material breach of this Agreement by the
other party at any time after this Agreement becomes effective.
(c) If this Agreement is terminated as provided in this Section 11, the
party terminating this Agreement shall notify the non-terminating party promptly
by telephone or telegram, confirmed by letter.
(d) If this Agreement is terminated by Trident for any of the reasons set
forth in subsection (a) above, and to fulfill its obligations, if any, pursuant
to Sections 3, 6, 8(a) and 9 of this Agreement and upon demand, the Company and
the Association shall pay Trident the full amount so owing thereunder.
(e) The Association may terminate the Conversion in accordance with the
terms of the Plan. Such termination shall be without liability to any party,
except that the Company and the Association shall be required to fulfill their
obligations pursuant to Sections 3(b), 3(c), 6, 8(a), 9 and 10 of this
Agreement.
Trident Securities, Inc.
Page 33
12. Notices. All communications hereunder, except as herein otherwise
-------
specifically provided, shall be in writing and if sent to Trident shall be
mailed, delivered or telegraphed and confirmed to Trident Securities, Inc., 0000
Xxx Xxxxx Xxxx, Xxxxx 000, Xxxxxxx, Xxxxx Xxxxxxxx 00000, Attention: Mr. R. Xxx
Xxxxxxx, Xx. (with a copy to Breyer & Aguggia, 0000 X Xxxxxx, X.X., Xxxxx 000
Xxxx, Xxxxxxxxxx, X.X. 00000, Attention: Xxxx X. Xxxxxxx, Esquire) and if sent
to the Company or the Association, shall be mailed, delivered or telegraphed and
confirmed to IFB Holdings, Inc. or Investors Federal Bank and Savings
Association, 000 Xxxxxxxxxx, Xxxxxxxxxxx, Xxxxxxxx 00000, Attention, Xxxxx X.
Xxxxxxxxx, Xx., President (with a copy to Xxxx Xxxxxx Xxxxxx Xxxxxxxx & Xxxxxx,
P.C., 0000 Xxxxxxxxx Xxxxxx, XX, Xxxxxxxxxx, XX 00000, Attention: Xxxxxx X.
Xxxxxxx, Esquire).
13. Parties. This Agreement shall inure solely to the benefit of, and
-------
shall be binding upon, Trident, the Company, the Association and the controlling
and other persons referred to in Section 8 hereof, and their respective
successors, legal representatives and assigns, and no other person shall have or
be construed to have any legal or equitable right, remedy or claim under or in
respect of or by virtue of this Agreement or any provision herein contained.
14. Construction. Unless preempted by federal law, this Agreement shall
------------
be governed by and construed in accordance with the substantive laws of North
Carolina.
15. Counterparts. This Agreement may be executed in separate
------------
counterparts, each of which when so executed and delivered shall be an original,
but all of which together shall constitute but one and the same instrument.
Trident Securities, Inc.
Page 34
Please acknowledge your agreement to the foregoing by signing below and
returning to the Company one copy of this letter.
IFB HOLDINGS, INC.
By:
-------------------------------
Xxxx X. Xxxxxxxxx, Xx.
President
INVESTORS FEDERAL BANK AND SAVINGS ASSOCIATION
By:
-------------------------------
Xxxx X. Xxxxxxxxx, Xx.
President
Agreed to and accepted as of
the date first written above:
TRIDENT SECURITIES, INC.
By:
--------------------------------------------
Name:
Title:
