EXHIBIT 1.2
[Form of Agency Agreement]
AJS BANCORP, INC.
678,895 to 918,505 Shares
(as may be increased to 1,056,281 shares)
Common Stock
($.10 Par Value Per Share)
Purchase Price: $10.00 Per Share
SALES AGENCY AGREEMENT
-----------------------------
___________________, 2001
Trident Securities, a Division of XxXxxxxx Investments, Inc.
0000 Xxx Xxxxx Xxxx, Xxxxx 000
Xxxxxxx, Xxxxx Xxxxxxxx 00000
Dear Sirs:
AJS Bancorp, MHC, a federal mutual holding company ("MHC"), AJS Bancorp,
Inc., a federally-chartered corporation ("Company"), and X.X. Xxxxx Federal
Savings Bank, a federally-chartered savings bank (referred to herein as "Bank,"
in mutual or stock form and including its subsidiaries as the context may
require), hereby confirm, as of ___________________, 2001, their respective
agreements with Trident Securities, a Division of XxXxxxxx Investments, Inc.
together with its successors and assigns as contemplated in Section 13 hereof
(collectively, "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 Bank intends to reorganize from a federally chartered
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mutual savings bank to a federally chartered capital stock savings 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 Bank to the Company, the
formation of the Company and the MHC and the issuance of a majority of the
Company's capital stock to the MHC, the "Reorganization") pursuant to a plan of
reorganization adopted by the Bank's Board of Directors on June 19, 2001 [and
amended on ______________] ("Plan"). In accordance with the Plan, the Company is
offering shares of its common stock, $.10 par value per share ("Common Stock"),
pursuant to nontransferable subscription rights in a subscription offering
("Subscription Offering") to certain depositors and
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borrowers of the Bank and to the Bank's tax-qualified employee benefit plans
(i.e., the Bank's Employee Stock Ownership Plan ("ESOP")). And shares of the
Common Stock not sold in the Subscription Offering are being offered to the
general public in a Community Offering ("Community Offering"), with preference
given to natural persons who are residents of Xxxx and Will Counties, Illinois
("Local Community") (the Subscription and Community Offerings are sometimes
referred to collectively as the "Subscription and Community Offering" or the
"Offerings"), subject to the right of the Company and the Bank, in their
absolute discretion, to reject orders in the Community Offering in whole or in
part. In the Subscription Offering (and the Community Offering, if applicable),
the Company is offering between 678,895 and 918,505 shares of Common Stock
("Shares"), with the possibility of offering up to 1,056,281 shares without a
resolicitation of subscribers, as contemplated by Part 563b of Title 12 of the
Code of Federal Regulations. Except for the ESOP, no person may purchase shares
with an aggregate purchase price of more than $50,000 and no person or entity,
together with associates of and persons acting in concert with such person or
other entity, may purchase more than $200,000 of Common Stock.
Trident has advised the Company that it will utilize its best efforts to
assist the Company with the sale of the Shares in the Offerings. Prior to the
execution of this Agreement, the Company has delivered to Trident the prospectus
dated ___________________, 2001 (as hereinafter defined) and all supplements
thereto, if any, to be used in the Offerings have also been delivered to Trident
(or if after the date of this Agreement, will be promptly delivered to Trident).
Such prospectus contains information with respect to the Company, the Bank, the
MHC and the Shares.
2. Representations and Warranties.
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(a) The Company, the Bank and the MHC 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. ___________ ), including a prospectus relating to
the Offerings, for the registration of the Shares under the Securities
Act of 1933, as amended ("Act"). Such registration statement has
become effective under the 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 the prospectus filed by the Company with the Commission
pursuant to Rule 424(b) of the general
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rules and regulations of the Commission under the Act ("SEC
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 the Commission and shall include any amendments or
supplements thereto from and after their dates of effectiveness or
use, respectively. If any Shares remain unsubscribed following
completion of the Subscription Offering and the Community Offering, if
any, the Company (i) will, if required by SEC Regulations, promptly
file with the Commission a post-effective amendment to such
Registration Statement relating to the results of the Subscription
Offering and the Community Offering, if any, any additional
information with respect to the proposed plan of distribution and any
revised pricing information or (ii) if no such post-effective
amendment is required, will file with the Commission a prospectus or
prospectus supplement containing information relating to the results
of the Subscription and the Community Offerings and pricing
information pursuant to Rule 424(c) of the SEC Regulations, in either
case in a form reasonably acceptable to the Company and Trident.
(ii) The Bank has filed a Notice of Mutual Holding Company
Reorganization on Form MHC-1, including exhibits (as amended or
supplemented, the "Form MHC-1") and an Application for Approval of
Minority Stock Issuance by a Savings Association Subsidiary of a
Mutual Holding Company on Form MHC-2 (as amended or supplemented, the
"Form MHC-2" and together with the MHC-1 and the Form H-(e)1-S
referred to below, the "Reorganization Application") with the Office
of Thrift Supervision ("Office") under the Home Owners' Loan Act, as
amended ("HOLA") and the enforceable rules and regulations, including
published policies and actions, of the Office thereunder ("OTS
Regulations"), which has been approved by the Office; the Prospectus
and the proxy statement for the solicitation of proxies from members
of the Bank for the special meeting to approve the Plan ("Proxy
Statement") included as part of the Reorganization Application have
been approved for use by the Office. No order has been issued by the
Office preventing or suspending the use of the Prospectus or the Proxy
Statement; and no action by or before the Office revoking such
approvals is pending or, to the Bank's best knowledge, threatened. The
Company has filed with the Office the Company's application on Form
H-(e)1-S ("Holding Company Application") under the savings and loan
holding company provisions of the HOLA and the OTS Regulations, which
has been conditionally approved.
(iii) At the date of the Prospectus and at all times subsequent
thereto through and including the Closing Date (as hereinafter
defined) (i) the Registration Statement and the Prospectus (as amended
or supplemented, if amended or supplemented) complied and will comply
as to form in all material respects with the Act and the SEC
Regulations, (ii) the Registration Statement (as amended or
supplemented, if amended or supplemented) did not contain an untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading and (iii) the Prospectus (as amended or supplemented, if
amended or supplemented) did not contain any untrue statement of
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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 about Trident furnished to the Company or the Bank
by or on behalf of Trident expressly for use in the Registration
Statement or Prospectus.
(iv) The Company is duly incorporated and validly existing as a
corporation under the laws of the United, and the Bank is duly
organized as a mutual savings bank under the laws of the United
States, and the MHC is duly organized as a federal mutual holding
company under the laws of the United States, and each of them is
validly existing and in good standing under the laws of the
jurisdiction of its organization with full power and authority to own
its property and conduct its business as described in the Prospectus;
the Bank is a member of the Federal Home Loan Bank of Chicago; and the
deposit accounts of the Bank are insured by the Savings Association
Insurance Fund ("SAIF") administered by the Federal Deposit Insurance
Corporation ("FDIC") up to the applicable limits. None of the Company,
the MHC, the Bank or the Bank's subsidiaries (referred to herein as
"Subsidiaries") is 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 Company, the Bank, the MHC and
the Subsidiaries, taken as a whole. The Bank does not own equity
securities of or an equity interest in any business enterprise, except
as described in the Prospectus. Upon amendment of the Bank's charter
and bylaws as provided in the OTS Regulations and completion of the
sale by the Company of the Shares as contemplated by the Prospectus
and the Plan, (i) the Bank will convert to a federally chartered
capital stock savings bank 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 Bank will
be owned of record and beneficially by the Company, and (iii) the
Company will have no direct subsidiaries other than the Bank.
(v) The Subsidiaries are duly organized, under the laws of their
jurisdictions of organization, 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 their property and
conduct their businesses as described in the Prospectus.
(vi) The Bank and the Subsidiaries have good and marketable title
to all assets material to their businesses and to those assets
described in the Prospectus
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as owned by them, free and clear of all liens, charges, encumbrances
or restrictions, except as described in the Prospectus and except as
would not in the aggregate have a material adverse effect on the Bank
and the Subsidiaries; and all of the leases and subleases material to
the operations or financial condition of the Bank and the
Subsidiaries, under which they hold properties, including those
described in the Prospectus, are in full force and effect as described
therein.
(vii) The Bank and the Subsidiaries have each obtained all
licenses, permits and other governmental authorizations currently
required for the conduct of its business, all such licenses, permits
and other governmental authorizations are in full force and effect and
the Bank and the Subsidiaries are in all material respects complying
therewith, except where the failure to hold or comply with such
licenses, permits or governmental authorizations would not have a
material adverse effect on the Company, the Bank, the MHC and the
Subsidiaries, taken as a whole.
(viii) The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby have been duly
and validly authorized by all necessary corporate action on the part
of each of the Company, the Bank and the MHC, and this Agreement has
been validly executed and delivered by, and is a valid and binding
obligation of, each of the Company, the Bank and the MHC, 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 depository institutions
whose accounts are insured by the FDIC and of savings and loan holding
companies the accounts of whose subsidiary are insured by the FDIC or
by general equity principles, regardless of whether such
enforceability is considered in a proceeding in equity or at law, and
except to the extent that the provisions of Sections 8 and 9 hereof
may be unenforceable as against public policy or pursuant to Section
23A of the Federal Reserve Act, 12 U.S.C. Section 371c ("Section
23A")).
(ix) There is no litigation or governmental proceeding pending
or, to the best knowledge of the Company, the Bank or the MHC,
threatened against or involving the Company, the Bank, the MHC, the
Subsidiaries or any of their respective assets which individually or
in the aggregate would reasonably be expected to have a material
adverse effect on the condition (financial or otherwise), results of
operations, assets or properties of the Company, the Bank, the MHC and
the Subsidiaries, taken as a whole.
(x) Each of the Company, the Bank and the MHC has all such
corporate power, authority, authorizations, approvals and orders as
may be required to enter into this Agreement and to carry out the
provisions and conditions hereof, subject to the limitations set forth
herein and subject to the satisfaction of certain conditions
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imposed by the Office in connection with its approvals of the
Reorganization Application and the Holding Company Application, and
except as may be required under the "blue sky" laws of various
jurisdictions, and in the case of the Company, as of the Closing Date,
will have such approvals and orders to issue and sell the Shares to be
sold by the Company as provided herein, and in the case of the Bank,
as of the Closing Date, will have such approvals and orders to issue
and sell the shares of its common stock to be sold to the Company as
provided in the Plan, subject to the issuance of an amended charter in
the form required for federally chartered capital stock savings bank
("Stock Charter"), the form of which Stock Charter has been filed with
the Reorganization Application and approved by the Office.
(xi) None of the Company, the Bank, the MHC or the Subsidiaries
are in violation of any rule or regulation of the Office, or the FDIC,
or any insurance regulator that could reasonably be expected to result
in any enforcement action against the Company, the Bank, the MHC or
their officers or directors that would have a material adverse effect
on the condition (financial or otherwise), results of operations,
businesses, assets or properties of the Company, the Bank, the MHC and
the Subsidiaries, taken as a whole.
(xii) The consolidated financial statements and the related
notes or schedules which are included in the Registration Statement
and are part of the Prospectus fairly present the financial condition,
income and comprehensive income, equity and cash flows of the Bank and
its consolidated Subsidiaries at the respective dates thereof and for
the respective periods covered thereby and comply as to form in all
material respects with the applicable accounting requirements of the
SEC Regulations and the applicable accounting regulations of the
Office. Such financial statements have been prepared in accordance
with generally accepted accounting principles consistently applied
throughout the periods involved, except as set forth therein, and such
financial statements are in all material respects consistent with
financial statements and other reports filed by the Bank with
supervisory and regulatory authorities except as such generally
accepted accounting principles may otherwise require. The tables in
the Prospectus accurately present the information purported to be
shown thereby at the respective dates thereof and for the respective
periods therein.
(xiii) There has been no material change in the financial
condition, results of operations or business, including assets and
properties, of the Company, the Bank, the MHC and the Subsidiaries,
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, the Bank, the MHC and the Subsidiaries conform in all
materials respects to the descriptions thereof contained in the
Prospectus. None of the Company, the Bank,
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the MHC or the Subsidiaries has any material liabilities of any kind,
contingent or otherwise, except as set forth in the Prospectus.
(xiv) 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 Bank, the MHC or the Subsidiaries 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 Bank, the MHC or the Subsidiaries 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 condition (financial or otherwise), results of operations,
businesses, assets or properties of the Company, the Bank, the MHC and
the Subsidiaries, taken as a whole; all agreements which are material
to the financial condition, results of operations or business, assets
or properties of the Company, the Bank, the MHC and the Subsidiaries,
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 Bank, the MHC or the Subsidiaries, threatened any action
or proceeding wherein the Company, the Bank, the MHC or the
Subsidiaries is alleged to be in default thereunder.
(xv) None of the Company, the Bank, the MHC or the Subsidiaries
are in violation of their respective certificates of incorporation,
charters or bylaws. The execution and delivery of this Agreement and
the consummation of the transactions contemplated hereby by the
Company, the Bank, the MHC and the Subsidiaries do not conflict with
or result in a breach of the respective certificates of incorporation,
charters or bylaws of the Company, the Bank (in either mutual or stock
form), the MHC, or the Subsidiaries or constitute a material 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, the Bank, the MHC
or the Subsidiaries 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, the
Bank, the MHC or the Subsidiaries is a party 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 Office in connection with its approval of the Reorganization
Application or the Holding Company Application),
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which breach, default, encumbrance or violation would have a material
adverse effect on the Company, the Bank, the MHC and the Subsidiaries,
taken as a whole.
(xvi) Subsequent to the respective dates as of which
information is given in the Registration Statement and Prospectus and
prior to the Closing Date, except as otherwise may be indicated or
contemplated therein, none of the Company, the Bank, the MHC or the
Subsidiaries have issued any securities which will remain issued and
outstanding at the Closing Date or incurred any liabilities or
obligations, direct or contingent, or borrowed money, except
liabilities, obligations or borrowings in the ordinary course of
business, or entered into any other transaction not in the ordinary
course of business and consistent with prior practices, which are
material in light of the business of the Company, the Bank, the MHC
and the Subsidiaries, taken as a whole.
(xvii) Upon consummation of the Reorganization, the authorized,
issued and outstanding equity capital of the Company shall be within
the range set forth in the Prospectus under the caption
"Capitalization," and no capital stock of the Company shall be
outstanding immediately prior to the Closing Date; the issuance and
the sale of the Shares have been duly authorized by all necessary
corporate action of the Company, the Bank and the MHC and approved by
the Office and, when issued and paid for in accordance with the terms
of the Plan, 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 to the purchasers thereof upon issuance
thereof against payment therefor, free and clear of all claims,
encumbrances, security interests and liens of the Company whatsoever.
The certificates representing the Shares will conform in all material
respects with the requirements of applicable laws and regulations. The
issuance and sale of the capital stock of the Bank to the Company has
been duly authorized by all necessary corporate action of the Bank and
the Company and has been approved by the Office (subject to the
satisfaction of various conditions imposed by the Office in connection
with its approval of the Reorganization 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 to the description thereof contained in
the Prospectus.
(xviii) No approval of any regulatory or supervisory or other
public authority is required of the Company, the Bank, the MHC or the
Subsidiaries in connection with the execution and delivery of this
Agreement or the issuance of the Shares, except for the declaration of
effectiveness of any required post-effective amendment by the
Commission and approval thereof by the Office and approval of
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the Holding Company Application, the issuance of the Stock Charter by
the Office and as may be required under the "blue sky" laws of various
jurisdictions.
(xix) All contracts and other documents required to be filed as
exhibits to the Registration Statement or the Reorganization
Application have been filed with the Commission or the Office, as the
case may be.
(xx) The Bank's financial statements as of December 31, 2000
and for the two year ended December 31, 2000 included in this
Prospectus, have been audited by Xxxxx, Xxxxxx and Company LLP. Xxxxx,
Xxxxxx and Company LLP are independent public accountants with respect
to the Bank within the meaning of the Code of Professional Ethics of
the American Institute of Certified Public Accountants and such
accountants are, with respect to the Bank, independent certified
public accountants as required by the Act and the SEC Regulations.
(xxi) For the past five years, the Bank and the Subsidiaries
have timely filed all required federal, state and local tax returns,
and no deficiency has been asserted with respect to such returns by
any taxing authorities, and the Bank and the Subsidiaries have paid
all taxes that have become due and, to the best of their knowledge,
have made adequate reserves for known future 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 Company, the Bank, the MHC and the Subsidiaries, taken
as a whole.
(xxii) All of the loans represented as assets of the Bank on the
most recent statement of financial condition of the Bank 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 Bank and the MHC, taken as a whole.
(xxiii) To the best knowledge of the Company, the Bank and the
MHC, the records of account holders, depositors and other members of
the Bank delivered to Trident by the Bank or its agent for use during
the Reorganization are reliable and accurate.
(xxiv) To the best knowledge of the Company, the Bank, the MHC
and the Subsidiaries, none of the Company, the Bank, the MHC or the
Subsidiaries nor the employees of the Company, the Bank, the MHC or
the Subsidiaries, have made any payment of funds of the Company, the
Bank, the MHC or the Subsidiaries
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prohibited by law, and no funds of the Company, the Bank or the MHC
have been set aside to be used for any payment prohibited by law.
(xxv) To the best knowledge of the Company, the Bank, the MHC
and the Subsidiaries, the Company, the Bank, the MHC and the
Subsidiaries are in compliance with all laws, rules and regulations
relating to the discharge, storage, handling and disposal of hazardous
or toxic substances, pollutants or contaminants and none of the
Company, the Bank, the MHC or the Subsidiaries believes that the
Company, the Bank, the MHC or the Subsidiaries are 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 Bank, the MHC and the Subsidiaries, taken
as a whole. There are no actions, suits, regulatory investigations or
other proceedings pending or, to the best knowledge of the Company,
the Bank, the MHC and the Subsidiaries, threatened against the
Company, the Bank, the MHC or the Subsidiaries relating to the
discharge, storage, handling and disposal of hazardous or toxic
substances, pollutants or contaminants. To the best knowledge of the
Company, the Bank, the MHC and the Subsidiaries, 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 Bank, the MHC or the Subsidiaries or, to
the best knowledge of the Company, the Bank, the MHC and the
Subsidiaries, has occurred on, in or at any of the facilities or
properties of the Company, the Bank, the MHC or the Subsidiaries,
except such disposal, release or discharge which would not have a
material adverse effect on the Company, the Bank, the MHC and the
Subsidiaries, taken as a whole.
(xxvi) For purposes of Trident's obligation to file certain
documents and to make certain representations to the National
Association of Securities Dealers ("NASD") in connection with the
reorganization, the Bank and the Subsidiaries warrants that: (a) the
Bank and the Subsidiaries have not privately placed any securities
within the last 18 months; (b) there have been no material dealings
within the last 12 months between the Bank and the Subsidiaries and
any NASD member or any person related to or associated with any such
member; (c) none of the officers or directors of the Bank or the
Subsidiaries have any affiliation with the NASD, (d) except as
contemplated by the engagement letter with Trident, the Bank and the
Subsidiaries have no financial or management consulting contracts
outstanding with any other person; and (e) there has been no
intermediary between Trident and the Bank in connection with the
public offering of the Bank's shares, and no person is being
compensated in any manner for providing such service.
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(b) Trident represents and warrants to the Company, the Bank and the
MHC that:
(i) Trident is registered as a broker-dealer with the
Commission and a member of the NASD, and is in good standing with the
Commission and the NASD.
(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, the Bank and the MHC 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 whom 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) Each of 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 listed in Exhibit A hereto and will
remain registered in such jurisdictions in which the Company is
relying on such registration for the sale of the Shares, until the
Reorganization 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 corporate 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,
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except for such violations, conflicts, breaches or defaults that would
not have a material adverse effect on Trident.
(vi) All funds received by Trident to purchase the Common Stock
will be handled in accordance with Rule 15c2-4 under the Securities
Exchange Act of 1934, as amended ("Exchange Act").
(vii) There is not now pending or, to Trident's best knowledge,
threatened against Trident any action or proceeding before the
Commission, the NASD, any state securities commission or any state or
federal court concerning Trident's activities as a broker-dealer.
3. Employment of Trident; Sale and Delivery of the Shares. On the basis
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of the representations and warranties herein contained, but subject to the terms
and conditions herein set forth, the Company, the Bank and the MHC hereby employ
Trident as their agent to utilize its best efforts in assisting the Company with
the sale of the Shares by the Company in the Offerings. Trident will assist the
Bank in the Reorganization by acting as marketing advisor with respect to the
Subscription Offering and will represent the Bank as placement agent on a best
efforts basis in the sale of the Common Stock in the Community Offering if one
is held; conduct training sessions with directors, officers and employees of the
Bank regarding the reorganization process; and assist in the establishment and
supervision of the Bank's stock information center and, with management's input,
will train the Bank's staff to record properly and tabulate orders for the
purchase of Common Stock and to respond appropriately to customer inquiries. The
employment of Trident hereunder shall terminate (a) forty-five (45) days after
the Offerings close, unless the Company and the Bank, with the approval of the
Office, are permitted to extend such period of time, or (b) upon consummation of
the Reorganization, whichever date shall first occur.
If the Company is unable to sell a minimum of 678,895 Shares of Common
Stock (or such lesser amount as the Office may permit) within the period herein
provided, this Agreement shall terminate, and the Company and the Bank shall
refund promptly to any person who has 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(a), 8(d) and 9
hereof. Appropriate arrangements for placing the funds received from
subscriptions for Shares in a special interest-bearing account with the Bank
until all Shares are sold and paid for were 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 Reorganization 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 the Closing Date against
payment to the Company by any means authorized pursuant to the Prospectus, at
the principal office of the Company or at such other place as shall be agreed
12
upon between the parties hereto. The date upon which Trident is paid the
compensation due hereunder is herein called the "Closing Date."
Trident agrees either (a) upon receipt of an executed order form of a
subscriber to forward the aggregate 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 Bank 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 acknowledgments 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 (i), and (iv) Trident will
forward completed order forms together with such funds to the Bank 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.
In addition to the expenses specified in Section 6 hereof, Trident shall
receive the following compensation for its services hereunder and reimbursement
of expenses:
(1) a non-refundable management fee of twenty-five thousand dollars
($25,000) payable on June 29, 2001; and (ii) a consulting fee equal to
$90,000 for any stock sold in the Subscription and Community
Offerings. The consulting fee is to be payable in same-day funds to
Trident on the Closing Date. Trident acknowledges receipt of the
$25,000 management fee.
(2) Trident shall be reimbursed for out-of-pocket expenses (including the
legal fees and expenses of Trident's counsel) incurred, not to exceed
$40,000, whether or not the Reorganization is successfully completed,
unless the Bank agrees to a greater amount. In the event of
resolicitation or other event which causes the offering to be extended
beyond the date contemplated by the Prospectus, then Trident shall
also be reimbursed for additional out of pocket and legal expenses
incurred as a result of such resolicitation or extension. Such
additional reimbursement shall not exceed $5,000. Trident will submit
invoices for expense reimbursement periodically throughout the
Reorganization, and full payment of any reimbursable expenses shall be
made in same-day funds to Trident on the Closing Date, or if the
Reorganization is not completed and is terminated for any reason, with
ten business days of receipt by the Bank of a written request from
Trident for reimbursement of expenses.
The Company shall pay any stock issue and transfer taxes which may be
payable with respect to the sale of the Shares. The Company, the Bank and the
MHC shall also pay all expenses of the Reorganization incurred by them or on
their prior approval including but not limited to their
13
attorneys' fees, NASD filing fees, filing and registration fees, and attorneys'
fees relating to any required state securities laws research and filings,
telephone charges, air freight, rental equipment, supplies, transfer agent
charges, fees relating to auditing and accounting and costs of printing all
documents necessary in connection with the Reorganization.
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 678,895
and a maximum of 918,505 Shares, with the possibility of offering up to
1,056,281 Shares (except as the Office may permit to be decreased or increased)
in the Subscription and Community 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 Bank jointly and severally
covenant and agree that:
(a) 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.
(b) The Company will notify Trident or its counsel immediately upon
discovery, 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 time.
(c) During the time when the Prospectus is required to be delivered
under the Act, the Company will comply with all requirements imposed upon
it by the Act, as now in effect and hereafter amended, and by the SEC
Regulations and the OTS Regulations, as from time to time in force, so far
as necessary 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, the Bank or the MHC shall occur as a result of which
it is necessary, in the opinion of counsel for Trident, with concurrence of
counsel of the Company, to amend or supplement the Prospectus in order to
make the Prospectus not false or misleading as to a material fact in light
of the circumstances existing at the time it is delivered to a purchaser of
the Shares, the Company shall prepare and furnish to Trident promptly a
reasonable number of copies
14
of an amendment or amendments or of a supplement or supplements to the
Prospectus (in form and substance 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 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 of which Trident has not first
been furnished a copy or to which Trident shall reasonably object after
having been furnished such copy. For the purposes of this subsection the
Company and the Bank shall furnish such information with respect to
themselves as Trident from time to time may reasonably request.
(d) The Company has taken or will take all 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 either 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.
(e) Appropriate entries will be made in the financial records of the
Bank sufficient to establish a liquidation account for the benefit of
Eligible Account Holders and Supplemental Eligible Account Holders in
accordance with the requirements of the Office.
(f) The Company will file a registration statement for the Common
Stock under Section 12(g) of the Exchange Act prior to completion of the
Reorganization pursuant to the Plan and shall request that such
registration statement be effective upon completion of the Reorganization.
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.
(g) 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 SEC 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.
(h) For a period of three (3) years from the date of this Agreement
(unless the Common Stock shall have been deregistered under the Exchange
Act), the Company will furnish to Trident, as soon as publicly available
after the end of each fiscal year, a copy
15
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 (ii) from time to
time, such other public information concerning the Company as Trident may
reasonably request.
(i) The Company and the Bank shall use the net proceeds from the sale
of the Shares consistently with the manner set forth in the Prospectus.
(j) 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.
(k) 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 (as defined in the Plan), 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") and such information
shall be accurate and reliable. Trident shall be entitled to rely on such
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, except for such
liability contemplated under Section 8(b) of this Agreement.
(l) The Company and the Bank will take such actions and furnish such
information as are reasonably requested by Trident in order for Trident to
ensure compliance with the NASD's "Interpretation Relating to Free- Riding
and Withholding."
(m) At the Closing Date, the Company, the Bank and the MHC will have
completed the conditions precedent to, and shall have conducted the
Reorganization in all material respects in accordance with the Plan, the
OTS Regulations and all other applicable laws, regulations, published
decisions and orders, including all terms, conditions, requirements and
provisions precedent to the Reorganization imposed by the Office, or
appropriate waivers shall have been obtained.
6. Payment of Expenses. Whether or not the Reorganization is consummated,
-------------------
the Company and the Bank shall pay or reimburse Trident for allocable expenses
incurred by Trident relating to the offering of the Shares as provided in
Section 3 hereof; provided, however, that neither the Company nor the Bank shall
pay or reimburse Trident for any of the foregoing expenses accrued after Trident
shall have notified the Company or the Bank of its election to terminate this
Agreement pursuant to Section 11 hereof or after such time as the Company or the
Bank shall have given notice in accordance with Section 12 hereof that Trident
is in breach of this Agreement.
16
7. Conditions of Trident's Obligations. Except as may be waived 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 Bank 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., counsel for the Company and
the Bank, dated the Closing Date, addressed to Trident, in form and
substance satisfactory to Trident to the effect that:
(i) The Company is a corporation in existence under the
laws of the United States, the Bank is a stock savings bank in
existence under the laws of the United States and the MHC is a federal
mutual holding company in existence under the laws of the United
States, each having the corporate power to execute, deliver and
perform its respective obligations under this Agreement and to carry
on its business as now conducted and as described in the Prospectus;
(ii) The Bank is a member of the Federal Home Loan Bank of
Chicago, and the deposit accounts of the Bank are insured by the SAIF
up to the applicable legal limits;
(iii) The activities of the Bank, the Subsidiaries, the MHC
and the Company as described in the Prospectus comply, in all material
respects, with applicable federal and state law.
(iv) The Plan complies with, and the Reorganization has
been effected in all material respects in accordance with, the HOLA
and the OTS Regulations; all of the terms, conditions, requirements
and provisions with respect to the Plan and the Reorganization imposed
by the Office, except with respect to the filing or submission of
certain required post-Reorganization reports by the Company, the Bank
or the MHC, have been complied with by the Company, the Bank and the
MHC in all material respects; and no person has sought to obtain
regulatory or judicial review of the final action of the Office in
approving the Plan;
(v) The Company has authorized capital stock as set forth
in the Registration Statement and the Prospectus;
(vi) The Company has authorized the issuance and sale of
the Shares by all necessary corporate action; the Shares, upon receipt
of payment and issuance in accordance with the terms of the Plan, will
be validly issued, fully paid, nonassessable and, except as disclosed
in the Prospectus, free of preemptive rights; and purchasers of the
Shares from the Company, upon issuance thereof against
17
payment therefor, will acquire such Shares free and clear of all
claims, encumbrances, security interests and liens created by the
Company;
(vii) The form of certificate used to evidence the Shares
is in proper form and complies in all material respects with the
applicable requirements of United States law and the regulations of
the Office;
(viii) The Bank has authorized the sale of its capital
stock to the Company by all necessary corporate action, which sale has
been approved by the Office, and such capital stock, upon receipt of
payment and issuance in accordance with the terms of the Plan and the
Prospectus, will be validly issued, fully paid and nonassessable and
owned of record and beneficially by the Company;
(ix) Subject to the satisfaction of the conditions to the
Office's approval of the Reorganization Application and Holding
Company Application and the issuance by the Office of the Bank's Stock
Charter, no consent, approval, authorization or other action by, or
filing or registration with, any governmental agency is required to be
obtained or made by the Company, the Bank or the MHC for the execution
and delivery of this Agreement, the issuance of the Shares and the
consummation of the Reorganization except as may be required under the
"blue sky" laws of various jurisdictions;
(x) The Company, the Bank and the MHC have authorized
the execution, delivery and performance of this Agreement by all
necessary corporate action;
(xi) The Plan has been duly adopted by the requisite vote
of the Boards of Directors of the Bank, the Company and the MHC; and,
based upon the report of the Inspector of Election, the Plan has been
approved by the requisite vote of the eligible voting members of the
Bank at a duly called meeting;
(xii) The statements in the Prospectus under the captions
"Dividend Policy," "Regulation," "Taxation," "Description of Capital
Stock of AJS Bancorp, Inc.," and "Restrictions on Acquisitions of AJS
Bancorp, Inc. and X.X. Xxxxx Federal" insofar as they are, or refer
to, statements of law or legal conclusions (excluding financial data
included therein or omitted therefrom, as to which an opinion need not
be expressed), have been prepared or reviewed by such counsel and are
accurate in all material respects;
(xiii) The Reorganization Application, the Registration
Statement, the Prospectus and the Proxy Statement, in each case as
amended or supplemented, comply as to form in all material respects
with the requirements of the Act, the SEC Regulations, the HOLA and
the OTS Regulations, as the case may be (except
18
as to information with respect to Trident included therein and
financial statements, notes to financial statements, financial tables
and other financial and statistical data, including the appraisal,
included therein or omitted therefrom, as to which no opinion need be
expressed); all documents and exhibits required to be filed with the
Reorganization Application and the Registration Statement have been so
filed and the descriptions in the Reorganization Application and the
Registration Statement of such documents and exhibits are accurate in
all material respects;
(xiv) The Reorganization Application has been approved by
the Office, and the Prospectus and the Proxy Statement have been
authorized for use by the Office; the Registration Statement and any
post-effective amendment thereto has been declared effective by the
Commission; no proceedings are pending by or before the Commission or
the Office seeking to revoke or rescind the orders declaring the
Registration Statement effective or approving the Reorganization
Application or, to such counsel's 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, the Bank or the MHC, or to such
counsel, a present intention to initiate such litigation or
proceeding);
(xv) The execution and delivery of this Agreement, and
the consummation of the Reorganization by the Company, the Bank and
the MHC, do not violate any provision of the certificate of
incorporation, charter or bylaws of the Company, the Bank or the MHC,
do not violate or constitute a breach of or default under any
contract, agreement or instrument described in the Prospectus or filed
as an exhibit to the Registration Statement, and do not violate any
applicable law, regulation or any judgment or order of any government,
governmental instrumentality or court that is binding on the Company,
the Bank or the MHC or any of their assets, properties or operations;
(xvi) The Company, the Bank, the MHC and the Subsidiaries
have obtained all licenses, permits and other governmental
authorizations currently required for the conduct of their respective
businesses as such businesses are described in the Prospectus, all
such licenses, permits and other governmental authorizations are in
full force and effect and the Company, the Bank, the MHC and the
Subsidiaries are in all material respects complying therewith, except
where the failure to hold such licenses, permits or governmental
authorizations or the failure to so comply would not have a material
adverse effect on the Company, the Bank, the MHC and the Subsidiaries;
(xvii) There is no action, suit, proceedings, inquiry or
investigation before or by any court or governmental agency or body,
now pending or
19
threatened, against either the Company, the Bank the MHC or the
Subsidiaries which individually, or in the aggregate, would have a
material adverse effect on the Company, the Bank, the MHC and the
Subsidiaries, taken as a whole;
(xviii) This agreement has been duly executed and delivered
by the Company, the Bank and the MHC and is enforceable against the
Company, the Bank and the MHC (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 insured depository
institutions 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);
(xix) The execution and delivery of this Agreement and
the consummation of the Reorganization by the Company, the Bank and
the MHC do not 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, the Bank, the MHC or the Subsidiaries 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, the Bank, the MHC or the Subsidiaries
are a party or violate any governmental license or permit or any
enforceable published law, administrative regulation or order or court
order, writ, injunction or decree (except as may be required under the
"blue sky" laws as to which no opinion need be expressed), which
breach, default, encumbrance or violation would have a material
adverse effect on the Company, the Bank, the MHC and the Subsidiaries,
taken as a whole; and
(xx) There has been no material breach of any provision
of the Company's, the Bank's or the MHC's respective certificate of
incorporation, charter 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) under any agreement, contract, indenture,
debenture, bond, note, instrument or obligation to which the Company,
the Bank, the MHC or the Subsidiaries is a party or by which any of
them or any of their respective assets or properties may be bound, or
any governmental license or permit, or a violation of 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 Company, the
Bank, the MHC and the Subsidiaries, taken as a whole.
20
In rendering such opinion, such counsel may rely as to matters of fact on
certificates of officers and directors of the Company, the Bank and the MHC and
certificates of public officials delivered pursuant to this Agreement. Such
counsel may assume that any agreement is the valid and binding obligation of any
parties to such agreement other than the Company, the Bank, the MHC and the
Subsidiaries. Such opinion may 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, such opinion may be rendered subject to the
qualifications, exceptions, definitions, limitations on coverage and other
limitations, all as more particularly described in the Accord. Further,
references in such opinion to such counsel's "knowledge" may be limited to
"knowledge" as defined in the Accord (or knowledge based on certificates). In
addition, the "General Qualifications" set forth in the Accord and other
customary assumptions and limitations may apply to such opinion. Such opinion
may be limited to present statutes, regulations and judicial interpretations and
to facts as they presently exist; in rendering such opinion, such counsel need
assume no obligation to revise or supplement them should the present laws be
changed by legislative or regulatory action, judicial decision or otherwise; and
such counsel need express no view, opinion or belief with respect to whether any
proposed or pending legislation, if enacted, or any regulations or any 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 Bank of this Agreement or the issuance of the Shares.
Further, in rendering such opinions, Xxxx Xxxxxx Xxxxxx Xxxxxxxx & Xxxxxx, P.C.
may rely on the opinion of _______________________, with respect to any matter
of Illinois law.
(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 Bank, dated the Closing Date, addressed to Trident, in form and
substance satisfactory to Trident and to the effect that: based on such
counsel's participation in conferences with representatives of the Company,
the Bank, the independent appraiser, the independent certified public
accountants, Trident and its counsel, review of documents and understanding
of applicable law (including the requirements of Form SB-2 and the
character of the Registration Statement contemplated thereby) and the
experience such counsel has gained in its practice under the Act, nothing
has come to such counsel's attention that would lead it to believe that the
Registration Statement, as amended (except as to information in respect of
Trident contained therein and except as to the appraisal, financial
statements, notes to financial statements, financial tables and other
financial and statistical data contained therein or omitted therefrom, as
to which such counsel need express no comment), 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, not misleading, or that the Prospectus, as
amended or supplemented (except as to information in respect of Trident
contained therein and except as to the appraisal, financial statements,
notes to financial statements, financial tables and other financial and
statistical data contained therein or omitted therefrom as to which such
counsel need express no comment), at the time the Prospectus was filed with
the Commission under Rule 424(b), and at the Closing Date, contained any
untrue statement of a material fact or omitted to
21
state a material fact necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading (in making
this statement such counsel may state that it has not undertaken to verify
independently the information in the Registration Statement or Prospectus
and, therefore, 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 matters required by Trident, and for the purpose of
evidencing the accuracy, completeness or satisfaction of any of the
representations, warranties or conditions contained in this Agreement,
including but not limited to, resolutions of the Boards of Directors of the
Company, the Bank and the MHC regarding the authorization, execution and
delivery of this Agreement and the transactions contemplated by the Plan
and this Agreement.
(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
condition (financial or otherwise), business or results of operations of
the Company, the Bank, the MHC and the Subsidiaries, taken as a whole,
since the latest date as of which information is set forth in the
Prospectus, except as referred to therein; (ii) there shall have been no
transaction entered into by the Company, the Bank, the MHC or the
Subsidiaries after the latest date as of which the financial condition of
the Company, the Bank, the MHC or the Subsidiaries 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, the Bank, the MHC and the Subsidiaries, taken
as a whole; (iii) none of the Company, the Bank, the MHC or the
Subsidiaries shall have received from any governmental authority any
direction (oral or written) to make any change in the method of conducting
their respective businesses which is material to the business of the
Company, the Bank, the MHC and the Subsidiaries, 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,
the Bank, the MHC or the Subsidiaries affecting any of their respective
assets, wherein an unfavorable decision, ruling or finding would have a
material adverse effect on the Company, the Bank, the MHC and the
Subsidiaries, taken as a whole; and (v) the Shares shall have been
qualified or registered for offering and sale by the Company under the
"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, the Bank, and the MHC dated the Closing Date, to the effect
that: (i) they have examined the Prospectus and, at the time the
Registration Statement was declared effective by the Commission and at the
time the Prospectus was authorized by the Office for use, the Prospectus
did not contain an untrue statement of a material fact or omit to state a
material fact necessary in
22
order to make the statements therein, in light of the circumstances under
which they were made, not misleading with respect to the Company, the Bank
or the MHC; (ii) since the date the Registration Statement was declared
effective by the Commission and since the date the Prospectus became
authorized by the Office for 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 change in the business, condition (financial or otherwise) or
results of operations of the Company, the Bank, or the MHC and the
conditions set forth in clauses (ii) through (v) inclusive of subsection
(d) of this Section 7 have been satisfied; (iii) no order has been issued
by the Commission or the Office to suspend the Offering or the
effectiveness of the Prospectus, and no action for such purposes has been
instituted or, to the knowledge of such officers, threatened by the
Commission or the Office; (iv) to the knowledge of such officers, no person
has sought to obtain review of the final actions of the Office approving
the Plan; and (v) all of the representations and warranties contained in
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 Office authorizing the use of the
Prospectus and the Proxy Statement and the approval of the Reorganization
Application (ii) if available, a copy of the order of the Commission
declaring the Registration Statement effective; (iii) a copy of the letter
from the Office evidencing the corporate existence of the Bank; (iv) a copy
of the letter from the Office evidencing the corporate existence of the
Company; (v) a copy of the letter from the Office evidencing the corporate
existence of the MHC; (vi) a copy of the letter from the Office approving
the Bank's Stock Charter; (vii) copy of the certificate from the FDIC
certifying to the insured status by the Bank; and (viii) copy of the letter
to FHLB of Chicago evidencing the Bank's membership therein.
(g) As soon as available after the Closing Date, Trident shall receive
a certified copy of the Bank's Stock Charter, the Company's Charter, and
the MHC's Charter, each as executed by the Office.
(h) Concurrently with the execution of this Agreement, Trident shall
receive a letter from Xxxxx, Xxxxxx & Company LLP, independent certified
public accountants, addressed to Trident, the Company, the Bank and the
MHC, in substance and form satisfactory to Trident, with respect to the
financial statements of the Bank and other financial information contained
in the Prospectus.
(i) At the Closing Date, Trident shall receive a letter in form and
substance satisfactory to Trident from Xxxxx, Xxxxxx & Company LLP,
independent certified public accountants, dated the Closing Date and
addressed to Trident, the Company, the Bank and the MHC, confirming the
statements made by them in the letters delivered by them
23
pursuant to the preceding subsection as of a specified date not more than
five (5) business days prior to the Closing Date.
(j) At the Closing Date, Trident shall receive the opinion of Xxxx
Xxxxxx Xxxxxx Xxxxxxxx & Xxxxxx, P.C., special counsel to the Company and
the Bank, dated the Closing Date, in form and substance satisfactory to
Trident and to the Reorganization will constitute a tax- free organization
under the Internal Revenue Code of 1986, as amended; Trident shall have
also received the letter of Xxxxx Xxxxxx and Company, dated the Closing
Date, in form and substance satisfactory to Trident and to the effect that
the Reorganization will not be a taxable transaction for the Bank, the
Company or the MHC under the laws of Illinois; and that the facts and
representations upon which such entities relied upon in rendering their
respective opinions to the Bank, the Company and the MHC are accurate and
complete.
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. Any certificates
signed by an officer or director of the Company, the Bank or the MHC prepared
for Trident's reliance and delivered to Trident or to counsel for Trident shall
be deemed a representation and warranty by the Company, the Bank and the MHC to
Trident as to the statements made therein. If any condition to 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 any such conditions which have not been fulfilled, or may extend the time
of their fulfillment. If Trident terminates this Agreement as aforesaid, the
Company, the Bank, and the MHC shall reimburse Trident for its expenses as
provided in Section 3(b) hereof.
8. Indemnification.
---------------
(a) The Company, the Bank and the MHC jointly and severally agree to
indemnify and hold harmless Trident, its officers, directors, employees and
agents and each person, if any, who controls Trident within the meaning of
Section 15 of the 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 such action, proceeding or claim (whether commenced
or threatened) arising out of or based upon (i) any misrepresentation by
the Company, the Bank or the MHC in this Agreement or any breach of
warranty by the Company, the Bank or the MHC with respect to this Agreement
or 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 not misleading any statements
contained in (A) the Registration Statement or the Prospectus or (B) any
application (including the Reorganization Application and the Holding
Company Application) or other document or communication (in this Section 8
collectively called "Application") prepared or executed by or on behalf of
the Company, the Bank or the MHC or based upon information
24
furnished in writing by or on behalf of the Company, the Bank or the MHC,
whether or not filed in any jurisdiction, to effect the Reorganization or
qualify the Shares under the securities laws thereof or filed with the
Office or Commission, unless such statement or omission was made in
reliance upon and in conformity with information furnished to the Company,
the Bank or the MHC 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, or (ii) the participation by
Trident in the Reorganization; provided, however, that this indemnification
agreement will not apply to any loss, liability, claim, damage or expense
found in a final judgment by a court of competent jurisdiction to have
resulted primarily from the bad faith, willful misconduct or gross
negligence of Trident or any other party who may otherwise be entitled to
indemnification pursuant to this Section 8(a). This indemnity shall be in
addition to any liability the Company, the Bank and the MHC may otherwise
have to Trident.
(b) The Company, the Bank and the MHC shall indemnify and hold harmless
Trident, its officers, directors, employees and agents and each person, if
any, who controls Trident within the meaning of Section 15 of the Act or
Section 20(a) of the Exchange Act for any liability whatsoever arising out
of (i) the Allocation Instructions or (ii) any records of account holders,
depositors, borrowers and other members of the Bank delivered to Trident by
the Bank or its agents for use during the Reorganization; provided,
however, that this indemnification agreement will not apply to any loss,
liability, claim, damage or expense found in a final judgment by a court of
competent jurisdiction to have resulted principally and directly from the
bad faith, willful misconduct or gross negligence of Trident or any other
party who may otherwise be entitled to indemnification pursuant to this
Section 8(b). This indemnity shall be in addition to any liability the
Company, the Bank and the MHC may otherwise have to Trident.
(c) Trident agrees to indemnify and hold harmless the Company, the
Bank, the MHC, their officers, directors and employees and each person, if
any, who controls the Company, the Bank or the MHC within the meaning of
Section 15 of the Act or Section 20(a) of the Exchange Act, to the same
extent as the foregoing indemnity from the Company, the Bank and the MHC to
Trident, but only with respect to (i) 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, written information furnished to the Company, the Bank or
the MHC with respect to Trident by Trident expressly for use in the
Prospectus or in any Application, which the Company, the Bank and the MHC
acknowledge appears only in the section captioned "Market for Common Stock"
and the first two paragraphs of the section captioned "The Reorganization
and the Stock Offering - Marketing Arrangements"; (ii) any
misrepresentation by Trident in Section 2(b) of this Agreement; or (iii)
any liability of the Company, the Bank or the MHC which is found in a final
judgment by a court of competent jurisdiction (not subject to further
appeal) to have resulted principally and directly from gross negligence,
bad faith or willful misconduct of Trident.
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(d) Promptly after receipt by an indemnified party under this Section 8
of notice of the commencement of any action, 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 the commencement
thereof; 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. 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 required by law, this Section 8 is subject to and
limited by the provisions of 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, the Bank
and/or the MHC other than in accordance with its terms, the Company, the Bank or
the MHC and Trident shall contribute to the aggregate losses, liabilities,
claims, damages, and expenses of the nature contemplated by said indemnity
agreement incurred by the Company, the Bank or the MHC and Trident (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company, the Bank or the MHC, on the one hand, and Trident, on the other hand,
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, the Bank or the MHC, 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, the Bank or the MHC, on the one hand, and Trident,
26
on the other hand, shall be deemed to be in the same proportion as the total net
proceeds from the Reorganization received by the Company, the Bank and the MHC
bear to the total fees and expenses received by Trident under this Agreement.
The relative fault of the Company, the Bank or the MHC, on the one hand, and
Trident, on the other hand, shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company, the Bank or the MHC or by Trident and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
The Company, the Bank and the MHC 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 Act) shall be
entitled to contribution from any person who is not guilty of such fraudulent
misrepresentation. To the extent required by law, this Section 9 is subject to
and limited by the provisions of Section 23A.
10. Survival of Agreements, Representations and Indemnities. The respective
-------------------------------------------------------
indemnities of the Company, the Bank and the MHC and Trident and the
representations and warranties of the Company, the Bank, the MHC and the
Subsidiaries and of Trident set forth in or made pursuant to this Agreement
shall remain in full force and effect, regardless of any termination or
cancellation of this Agreement or any investigation made by or on behalf of
Trident or the Company, the Bank or the MHC 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 Bank, the MHC 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 or the
Nasdaq Stock Market shall have suspended; or if the United
27
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 Bank or the Reorganization; or
if a moratorium in foreign exchange trading by major international banks or
persons has been declared; or if there shall have been a material adverse
change in the capitalization, financial condition or business of the
Company, the Bank or the MHC, or if the Company, the Bank or the MHC shall
have sustained a material or substantial loss by fire, flood, accident,
hurricane, earthquake, theft, sabotage or other calamity or malicious act,
whether or not said loss shall have been insured; or if there shall have
been a material adverse change in the condition, financial or otherwise, or
prospects of the Company, the Bank, the MHC and the Subsidiaries, taken as
a whole.
(b) If Trident elects to terminate this Agreement as provided in this
Section, the Company, the Bank and the MHC shall be notified promptly by
Trident by telephone or telegram, confirmed by letter.
(c) If this Agreement is terminated by Trident for any of the reasons
set forth in subsection (a) above, and to fulfill their obligations, if
any, pursuant to Sections 3, 6, 8(a) and 9 of this Agreement and upon
demand, the Company, the Bank and the MHC shall pay Trident the full amount
so owing thereunder.
(d) The Bank may terminate the Reorganization in accordance with the
terms of the Plan. Such termination shall be without liability to any
party, except that the Company, the Bank and the MHC shall be required to
fulfill their obligations pursuant to Sections 3, 6, 8(a), 8(d) and 9 of
this Agreement.
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 faxed and confirmed to Trident Securities, Inc., 0000 Xxx
Xxxxx Xxxx, Xxxxx 000, Xxxxxxx, Xxxxx Xxxxxxxx 00000, Attention: Xxxxx X.
Xxxxxxxxxx, Senior Vice President (with a copy to Xxxxxxx Spidi & Xxxxx, PC,
0000 Xxx Xxxx Xxxxxx, X.X., Xxxxx 000 Xxxx, Xxxxxxxxxx, X.X. 00000, Attention:
Xxxx X. Spidi, Esq.) and if sent to the Company or the Bank, shall be mailed,
delivered or faxed and confirmed to X.X. Xxxxx Federal Savings Bank, 00000 Xxxxx
Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000, Attention: Xxxxxx X. Xxxxxx,
President and Chief Executive Officer of the Company and the Bank (with a copy
to Xxxx Xxxxxx Xxxxxx Xxxxxxxx & Xxxxxx, P.C., 0000 Xxxxxxxxx Xxxxxx, X.X.,
Xxxxx 000, Xxxxxxxxxx, X.X. 00000, Attention: Xxxx Xxxxxx, Esq.)
13. Parties. This Agreement shall inure solely to the benefit of, and shall
-------
be binding upon, Trident, the Company, the Bank, the MHC 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. The
undersigned consent to the assignment of rights and obligations of Trident
Securities, Inc. hereunder to XxXxxxxx Investments Inc.
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14. Construction. This Agreement shall be governed by and construed in
------------
accordance with the substantive laws of North Carolina regardless of the laws
that might otherwise govern under applicable principles of conflicts of law
thereof.
15. Counterparts and Definitions. 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. Any initially capitalized terms not defined herein shall have the
meanings ascribed thereto in the Prospectus.
29
Please acknowledge your agreement to the foregoing as of the date above
written by signing below and returning to the Company one copy of this letter.
AJS BANCORP, INC. X.X. XXXXX FEDERAL SAVINGS BANK
By: ________________________ By: _______________________
Xxxxxx X. Xxxxxx Xxxxxx X. Xxxxxx
President and Chief Executive Officer President and Chief Executive
Officer
AJS BANCORP, MHC
By: ________________________
Xxxxxx X. Xxxxxx
President and Chief Executive Officer
Agreed to and accepted:
TRIDENT SECURITIES,
A Division of XxXxxxxx Investments, Inc.
By: _________________________
Xxxxx X. Xxxxxxxxxx
Senior Vice President
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Exhibit A
Trident Securities, a Division of XxXxxxxx Investments, Inc. is a registered
selling agent in the jurisdictions listed below:
Alabama Montana
Xxxxxx Xxxxxxxx
Arizona Nevada
Arkansas New Hampshire
California New Jersey
Colorado New Mexico
Connecticut New York
Delaware North Carolina
District of Columbia North Dakota
Florida Ohio
Georgia Oklahoma
Hawaii Oregon
Idaho Pennsylvania
Illinois Rhode Island
Indiana South Carolina
Iowa South Dakota
Kansas Tennessee
Kentucky Texas
Louisiana Utah
Maine Vermont
Maryland Virginia
Massachusetts Washington
Michigan West Virginia
Minnesota Wisconsin
Mississippi Wyoming
Missouri
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