EXHIBIT 1.2
[FORM OF]
MINDEN BANCORP, INC.
(In Formation)
_________ to__________ Shares
(as may be increased to ___________ shares)
Common Stock
($0.01 Par Value Per Share)
Purchase Price: $10.00 Per Share
SALES AGENCY AGREEMENT
----------------------
March __, 2002
Trident Securities, a Division of McDonald Investments Inc.
0000 Xxx Xxxxx Xxxx, Xxxxx 000
Xxxxxxx, Xxxxx Xxxxxxxx 00000
Dear Sirs:
Minden Mutual Holding Company, a federal mutual holding company in
formation (the "MHC"), Minden Bancorp, Inc., a federally chartered mid-tier
stock holding company in formation (the "Company"), and The Minden Building &
Loan Association, a Louisiana stock savings association (referred to herein as
the "Association," in mutual or stock form and including its subsidiaries as the
context may require), hereby confirm, as of March __, 2002, their respective
agreements with Trident Securities, a Division of McDonald 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 (the "Commission") and a member of the National Association
of Securities Dealers, Inc. (the "NASD"), as follows:
1. INTRODUCTION. The Association intends to reorganize from a Louisiana
chartered mutual savings and loan association to a Louisiana chartered stock
savings association 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, 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
Association's Board of Directors on December 11, 2001 (the "Plan"). As of the
date hereof, the Company and the MHC are in formation. Accordingly, the
Association hereby agrees to cause the MHC and the Company to ratify, execute
and deliver this Agreement upon completion of their formation. In accordance
with
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the Plan, the Company is offering shares of its common stock, $0.01 par value
per share ("Common Stock"), pursuant to nontransferable subscription rights in a
subscription offering ("Subscription Offering") to certain depositors and
borrowers of the Association, to the Association's tax-qualified employee
benefit plans (including an employee stock ownership plan) and to officers,
employees and directors of the Association. Any shares of the Common Stock not
sold in the Subscription Offering are being offered to certain members of the
general public in a Community Offering ("Community Offering"), with preference
given to natural persons who are residents of Webster Parish, Louisiana ("Local
Community") (the Subscription and Community Offerings are sometimes referred to
collectively as the "Subscription and Community Offering"), subject to the right
of the Company and the Association, in their absolute discretion, to reject
orders in the Community Offering in whole or in part. All shares of the Common
Stock not sold in the Subscription and Community Offerings are being offered to
the general public in a Syndicated Community Offering, subject to the right of
the Company and the Association, in their absolute discretion, to reject orders
in the Syndicated Community Offering in whole or in part. (The Subscription,
Community and Syndicated Community Offerings are sometimes collectively referred
to as the "Offerings"). In the Subscription Offering (and the Community Offering
and Syndicated Community Offering, if applicable), the Company is offering
between _____ and ______ shares of Common Stock ("Shares"), with the possibility
of offering up to _______ shares without a resolicitation of subscribers, as
contemplated by Parts 563b and 575 of Title 12 of the Code of Federal
Regulations. Except for the tax qualified employee benefit plans, no person may
purchase shares with an aggregate purchase price of more than $_____ and no
person or entity, together with associates of and persons acting in concert with
such person or other entity, may purchase more than $_______ 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 ____________, 2002 (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 Association,
the MHC and the Shares.
2. REPRESENTATIONS AND WARRANTIES.
(a) The Company, the Association 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-1] (No. 333-______), 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
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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 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, the Community Offering and the Syndicated 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, the Community Offering and the Syndicated 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 Offering, the Community Offering, and
the Syndicated Community Offering 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 Association has filed a Combined Form MHC-1/MHC-2, Notice
of Mutual Holding Company Reorganization and an Application for
Approval of Minority Stock Issuance by a Savings Association Subsidiary
of a Mutual Holding Company (as amended or supplemented, the "Combined
Form MHC-1/MHC-2" and together with 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
Association 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 Association'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. [THE ASSOCIATION
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HAS FILED AN APPLICATION FOR APPROVAL OF CONVERSION (THE "CONVERSION
APPLICATION") WITH THE LOUISIANA OFFICE OF FINANCIAL INSTITUTIONS
("OFI"), 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 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 Association by or on behalf of Trident expressly
for use in the Registration Statement or Prospectus.
(iv) The Company will at the Closing Date be duly incorporated and
validly existing as a federally chartered mid-tier stock holding
company, the Association is currently duly organized as a mutual
savings and loan association under the laws of Louisiana and, upon
completion of the Reorganization, will be duly incorporated and validly
existing as a Louisiana-chartered stock building and loan association,
and the MHC will at the Closing Date be duly organized as a federal
mutual holding company, and each of them at the Closing Date will be
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 Association is a member of the Federal Home Loan Bank of Dallas;
and 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 limits. The
Association has no subsidiaries or investments in excess of 10 percent
of any class of stock of any corporation or other entity. None of the
Company, the MHC or the Association is or will be 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 Association and the MHC, taken as a whole. The Association
does not own equity securities of or an equity interest in any business
enterprise, except as described in the Prospectus. Upon amendment of
the Association'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
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Association will convert to a Louisiana-chartered stock building and
loan association 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.
(v) [Reserved]
(vi) The Association has good and marketable 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 as described in the Prospectus and
except as would not in the aggregate have a material adverse effect on
the Association; and all of the leases and subleases material to the
operations or financial condition of the Association, under which it
holds properties, including those described in the Prospectus, are in
full force and effect as described therein.
(vii) The Association has 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 Association is 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 Association and the MHC, 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 Association 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 Association 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 Association or the MHC,
threatened against or involving the Company, the Association, the MHC,
the Subsidiaries or any of their
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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 Association, the MHC and the
Subsidiaries, taken as a whole.
(x) Each of the Company, the Association 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 imposed by
the Office in connection with its approvals of the Reorganization
Application and the Holding Company Application, the Conversion
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 Association, 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 a Louisiana chartered stock
savings association ("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 Association or the MHC is in violation
of any rule or regulation of the Louisiana Banking Department, Office,
or the FDIC, or any insurance regulator that could reasonably be
expected to result in any enforcement action against the Company, the
Association, 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 Association and the MHC, 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 Association at the
respective dates thereof and for the respective periods covered thereby
and comply as to form in all material respects with the applicable
accounting requirements of the SEC Regulations and the applicable
accounting regulations of the Office and [OFI]. 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 Association 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
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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 Association and the MHC, 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 Association and the MHC
conform in all materials respects to the descriptions thereof contained
in the Prospectus. None of the Company, the Association and the MHC 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
Association or the MHC 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,
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 Association and the MHC, 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
Association and the MHC, 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 or the MHC, threatened
any action or proceeding wherein the Company, the Association, the MHC
or the Subsidiaries is alleged to be in default thereunder.
(xv) The Association is not in violation of its [ARTICLES] of
incorporation, charter or bylaws. Upon completion of their formation,
neither the Company nor the MHC will be in violation of their
respective charters or bylaws. The execution and delivery of this
Agreement and the consummation of the transactions contemplated hereby
by the Company, the Association and the MHC do not and in the case of
the Company and the MHC upon receipt of their charters will not,
conflict with or result in a breach of the respective certificates of
incorporation, charters or bylaws of the Company, the Association (in
either mutual or stock form) or the MHC, 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,
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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 Association or the MHC
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 Association or the MHC 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), which
breach, default, encumbrance or violation would have a material adverse
effect on the Company, the Association and the MHC, 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 Association or the MHC 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
Association and the MHC, 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 Association and the MHC and approved by the
Office and OFI 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
Association to the Company has been duly authorized by all necessary
corporate action of the Association 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, the Holding Company Application and the
Conversion Application), and such capital stock, when issued in
accordance with
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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 Association, 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 the
Holding Company Application, the issuance of the MHC, Mid-Tier Holding
Company and Stock Charters by the Office and OFI 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 Association's financial statements as of December 31, 2001
and for the two years ended December 31, 2001 included in the
Prospectus, have been audited by ________________. ___________________
are independent public accountants with respect to the Association
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 Association, independent certified public
accountants as required by the Act and the SEC Regulations.
(xxi) For the past five years, the Association has timely (including
any permissible extensions) 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 Association has paid all
taxes that have become due and, to the best of its knowledge, has 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 Association and the MHC, taken as a whole.
(xxii) All of the loans represented as assets of the Association on
the most recent statement of financial condition of the Association
included in the Prospectus meet or are exempt from all requirements of
federal, state or local law pertaining to lending, including without
limitation truth in lending (including 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 MHC, taken as a whole.
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(xxiii) To the best knowledge of the Company, the Association and
the MHC, the records of account holders, depositors and other members
of the Association delivered to Trident by the Association or its agent
for use during the Reorganization are reliable and accurate.
(xxiv) To the best knowledge of the Company, the Association and the
MHC, none of the Company, the Association or the MHC nor the employees
of the Company, the Association or the MHC, have made any payment of
funds of the Company, the Association or the MHC prohibited by law, and
no funds of the Company, the Association 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 Association and the
MHC, the Company, the Association and the MHC 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 Association or the MHC
believes that the Company, the Association or the MHC 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 Association and the MHC, 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 and
the MHC, threatened against the Company, the Association or the MHC
relating to the discharge, storage, handling and disposal of hazardous
or toxic substances, pollutants or contaminants. To the best knowledge
of the Company, the Association and the MHC, 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 MHC or, to the best knowledge of the
Company, the Association and the MHC, has occurred on, in or at any of
the facilities or properties of the Company, the Association or the
MHC, except such disposal, release or discharge which would not have a
material adverse effect on the Company, the Association and the MHC,
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 Association and the Subsidiaries warrants that: (a)
the Association 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 Association and any NASD
member or any person related to or associated with any such member; (c)
none of the officers or directors of the Association has any
affiliation with the NASD, except as disclosed in Schedule XXVI hereto
(d) except as contemplated by the engagement letter with
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Trident, the Association has no financial or management consulting
contracts outstanding with any other person; and (e) there has been no
intermediary between Trident and the Association in connection with the
public offering of the Association's shares, and no person is being
compensated in any manner for providing such service.
(b) Trident represents and warrants to the Company, the Association 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 Association 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) 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
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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, except for such violations, conflicts,
breaches or defaults that would not have an effect on Trident's ability
to perform its obligations under this Agreement.
(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 of
the representations and warranties herein contained, but subject to the terms
and conditions herein set forth, the Company, the Association 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 Association in the Reorganization by acting as marketing advisor
with respect to the Subscription Offering and will represent the Association 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 Association regarding the reorganization process;
and assist in the establishment and supervision of the Association's stock
information center and, with management's input, will train the Association'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 closes,
unless the Company and the Association, with the approval of the Office, and the
OFI 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 _______ 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 Association
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
Association 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.
12
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
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 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 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
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.
In addition to the expenses specified in Section 6 hereof, Trident has or
shall receive the following compensation for its services hereunder and
reimbursement of expenses:
(1) A non-refundable management fee in the amount of $20,000.
(2) A success fee of $85,000 for shares sold in the subscription and
direct community offerings. For stock sold by NASD member firms,
including Trident and McDonald Investments Inc., under a selected
dealer agreement in a syndicated community offering, the commission
paid to those firms shall not exceed 6%. It is understood that Trident
will use its best efforts to sell all the shares offered pursuant to
the subscription and direct community offerings, and that a syndicate
will be formed only with the Association's consent. It is further
understood that the 6% commission payable to NASD member firms,
including Trident, shall only be paid with respect to shares sold in
the syndicated community offering. All such fees shall be paid in
next-day funds on the closing date.
(3) Trident shall be reimbursed for its reasonable out-of-pocket expenses
(including the fees and expenses of its legal counsel) whether or not
the Agreement is consummated. Trident will submit invoices for expense
reimbursement periodically throughout the MHC reorganization.
13
It further is understood that the Bank will pay all other expenses of the
MHC reorganization including but not limited to its attorney's fees, NASD filing
fees, filing and registration fees, fees of either Trident's attorneys or other
attorneys relating to any required state securities laws filings, telephone
charges, air freight, rental equipment, supplies, transfer agent charges, fees
relating to auditing and accounting, and costs of printing and mailing all
documents necessary in connection with the foregoing.
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 Association 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 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 ______
and a maximum of ________ Shares, with the possibility of offering up to
___________ Shares (except as the Office may permit such amount to be decreased
or increased) in the Subscription and Community Offerings. The Shares are to be
offered to the public at the price per share set forth on the cover page of the
Prospectus.
5. FURTHER AGREEMENTS. The Company and the Association 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.
14
(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, the OTS Regulations and OFI 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 Association
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 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 Association
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) 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.
15
(f) 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.
(g) 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 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.
(h) The Company and the Association shall use the net proceeds from the
sale of the Shares consistently with the manner set forth in the
Prospectus.
(i) 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.
(j) 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.
(k) The Company and the Association 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."
(l) At the Closing Date, the Company, the Association 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.
16
6. PAYMENT OF EXPENSES. Whether or not the Reorganization is consummated,
the Company and the Association 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
Association shall pay or 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.
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 Association of their obligations hereunder and to the following
conditions:
(a) At the Closing Date, Trident shall receive the favorable opinion of
Elias, Matz, Xxxxxxx & Xxxxxxx L.L.P., counsel for the Company and the
Association, dated the Closing Date, addressed to Trident, in form and
substance satisfactory to Trident to the effect that:
(i) The Company is a federally chartered stock holding company
in existence under the laws of the United States, the Association is a
Louisiana-chartered stock building and loan association in existence
under the laws of Louisiana 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 Association is a member of the Federal Home Loan Bank
[OF DALLAS], and the deposit accounts of the Association are insured by
the SAIF up to the applicable legal limits;
(iii) The activities of the Association, 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, the OTS
Regulations and the Louisiana Revised Statutes and the regulations
promulgated thereunder; all of the terms, conditions, requirements and
provisions with respect to the Plan and the Reorganization imposed by
the Office and OFI, except with respect to the filing or submission of
certain required post-Reorganization reports by the Company, the
Association or the MHC, have been complied with by the
17
Company, the Association 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 and OFI 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 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 Association 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 State of Louisiana of the
Association'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
Association 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 Association 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 Association, the Company and the MHC;
and, based upon the report of the Inspector of Election, the Plan has
been approved by the
18
requisite vote of the eligible voting members of the Association at a
duly called meeting;
(xii) The statements in the Prospectus under the captions "We
Intend to Pay Quarterly Cash Dividends," "Regulation," "Taxation,"
"Description of Our Capital Stock," and "Restrictions on Acquisitions
of Us and Minden Building and Loan and Related Anti-Takeover
Provisions" 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 Conversion
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 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); to such counsel's knowledge, all documents and exhibits
required to be filed with the Reorganization Application, the
Conversion 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 and the Conversion
Application has been approved by the Office and OFI, respectively, and
the Prospectus and the Proxy Statement have been authorized for use by
the Office and OFI; 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, the Office or OFI
seeking to revoke or rescind the orders declaring the Registration
Statement effective or approving the Reorganization Application or the
Conversion 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 Association 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 Association and
the MHC, do not violate any provision of the certificate of
incorporation, charter or
19
bylaws of the Company, the Association 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, to the knowledge of such counsel, 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 Association or the MHC or any of their assets,
properties or operations;
(xvi) To such counsel's knowledge, the Company, the Association
and the MHC 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; to such
counsel's knowledge, all such licenses, permits and other governmental
authorizations are in full force and effect and the Company, the
Association and the MHC 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 Association and the MHC;
(xvii) There is no action, suit, proceedings, inquiry or
investigation before or by any court or governmental agency or body,
now pending or, to such counsel's knowledge, threatened, against either
the Company, the Association the MHC or the Subsidiaries which
individually, or in the aggregate, would have a material adverse effect
on the Company, the Association and the MHC, taken as a whole;
(xviii) This agreement has been duly executed and delivered by
the Company, the Association and the MHC and is enforceable against the
Company, the Association 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) To such counsel's knowledge, the execution and delivery
of this Agreement and the consummation of the Reorganization by the
Company, the Association 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 Association or the MHC
pursuant to any of the terms, provisions or conditions of, any material
agreement, contract,
00
xxxxxxxxx, xxxx, xxxxxxxxx, note, instrument or obligation to which the
Company, the Association or the MHC 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
Association and the MHC, taken as a whole; and
(xx) There has been no material breach of any provision of the
Company's, the Association's or the MHC's respective certificate of
incorporation, charter or bylaws or, to such counsel's knowledge, a
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 Association or the MHC 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
Association and the MHC, taken as a whole.
In rendering such opinion, such counsel may rely as to matters of fact on
certificates of officers and directors of the Company, the Association 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 Association, 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 it should the present laws be
changed by legislative or regulatory action, judicial decision or otherwise; and
such counsel need express no view, opinion or belief with respect to whether any
proposed or pending legislation, if enacted, or any 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 Association of this Agreement or the issuance of the
Shares. [Further, in rendering such opinions, Elias, Matz, Xxxxxxx & Xxxxxxx
L.L.P. may rely on the opinion of __________________, with respect to any matter
of Louisiana law.]
21
(b) At the Closing Date, Trident shall receive the letter of Elias,
Matz, Xxxxxxx & Xxxxxxx L.L.P., special counsel for the Company and the
Association, 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 Association, 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 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 Association 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 Association and the MHC, 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 Association or the MHC after the latest date as
of which the financial condition of the Company, the Association or the
MHC is set forth in the Prospectus
22
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 Association and the MHC, taken as a whole;
(iii) none of the Company, the Association and the MHC 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 Association and the MHC,
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 Association or the MHC affecting any
of their respective assets, wherein an unfavorable decision, ruling or
finding would have a material adverse effect on the Company, the
Association, 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 Association, 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 order to make the statements
therein, in light of the circumstances under which they were made, not
misleading with respect to the Company, the Association 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 Association, 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 and the Conversion Application (ii) if available, a copy of
the order of the Commission declaring the Registration Statement
effective; (iii) a copy of the letter from OFI evidencing the
23
corporate existence of the Association; (iv) if available, a copy of the
letter from the Office evidencing the corporate existence of the Company;
(v) if available, a copy of the letter from the Office evidencing the
corporate existence of the MHC; (vi) a copy of the letter from OFI
approving the Association's Stock Charter; (vii) copy of the certificate
from the FDIC certifying to the insured status by the Association; and
(viii) copy of the letter from the FHLB of Dallas evidencing the
Association's membership therein.
(g) As soon as available after the Closing Date, Trident shall receive
a certified copy of the Association's Stock Charter, the Company's
Charter, and the MHC's Charter, each as executed by the Office [or the
state, as appropriate].
(h) Concurrently with the execution of this Agreement, Trident shall
receive a letter from Heard XxXxxxx & Xxxxxx LLP, independent certified
public accountants, addressed to Trident, the Company, the Association and
the MHC, in substance and form satisfactory to Trident, with respect to
the financial statements of the Association 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 Heard XxXxxxx & Xxxxxx LLP,
independent certified public accountants, dated the Closing Date and
addressed to Trident, the Company, the Association and the MHC, confirming
the statements made by them in the letters delivered by them 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 Elias,
Matz, Xxxxxxx & Xxxxxxx L.L.P., special counsel to the Company and the
Association, dated the Closing Date, in form and substance satisfactory to
Trident and to its counsel that 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 Heard XxXxxxx & Xxxxxx LLP,
independent certified public accountants, 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 Association, the
Company or the MHC under the laws of Louisiana; and that the facts and
representations which such entities relied upon in rendering their
respective opinions to the Association, 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 Association 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
Association 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
24
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 Association, and the
MHC shall reimburse Trident for its expenses as provided in Section 3(b) hereof.
8. INDEMNIFICATION.
(a) The Company, the Association 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 Association or the MHC in this
Agreement or any breach of warranty by the Company, the Association 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
Association or the MHC or based upon information furnished in writing by
or on behalf of the Company, the Association 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
Association 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
Association and the MHC may otherwise have to Trident.
(b) The Company, the Association 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
25
Association delivered to Trident by the Association 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 Association and the
MHC may otherwise have to Trident.
(c) Trident agrees to indemnify and hold harmless the Company, the
Association, the MHC, their officers, directors and employees and each
person, if any, who controls the Company, the Association 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 Association 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 Association or the MHC with respect to
Trident by Trident expressly for use in the Prospectus or in any
Application, which the Company, the Association 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 Association 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.
(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
26
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
Association and/or the MHC other than in accordance with its terms, the Company,
the Association 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 Association or the MHC and
Trident (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company, the Association 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
Association 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
Association or the MHC, on the one hand, and Trident, 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 Association and the MHC bear to the
total fees and expenses received by Trident under this Agreement. The relative
fault of the Company, the Association 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 Association 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 Association 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
27
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 Association and the MHC and Trident
and the representations and warranties of the Company, the Association, 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 Association 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 Association, 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 States
shall have become involved in a war or major hostilities other than as
existing at the time this Agreement becomes effective; or if a general
banking moratorium has been declared by a state or federal authority which
has a material effect on the Association 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 Association or the MHC, or if the Company, the Association 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 Association and
the MHC, taken as a whole.
(b) If Trident elects to terminate this Agreement as provided in this
Section, the Company, the Association and the MHC shall be notified
promptly by Trident by telephone or telegram, confirmed by letter.
28
(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 Association and the MHC shall pay Trident the
full amount so owing thereunder.
(d) The Association 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 Association 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, A Division of
Trident Investments Inc., 0000 Xxx Xxxxx Xxxx, Xxxxx 000, Xxxxxxx, Xxxxx
Xxxxxxxx 00000, Attention: _______________, _______________ (with a copy to
Xxxxxxx Xxxxxx & Xxxxxxxx LLP, 0000 Xxxxxxxxx Xxxxxx, X.X., Xxxxxxxxxx, X.X.
00000, Attention: Xxxx X. Xxxx, Esq.) and if sent to the Company or the
Association, shall be mailed, delivered or faxed and confirmed to The Minden
Building & Loan Association, 000 Xxxx Xxxxxx, Xxxxxx, Xxxxxxxxx 00000,
Attention: A. Xxxxx Xxxxx, President and Chief Executive Officer of the Company
and the Association (with a copy to Elias, Matz, Xxxxxxx & Xxxxxxx LLP, 12th
Floor, the Xxxxxx Building, 000 00xx Xxxxxx, X.X., Xxxxxxxxxx, XX 00000,
Attention: Xxxxxxx X. Xxxxx, Esq.).
13. PARTIES. This Agreement shall inure solely to the benefit of, and
shall be binding upon, Trident, the Company, the Association, 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 hereunder to Trident Investments Inc.
14. CONSTRUCTION. This Agreement shall be governed by and construed in
accordance with the substantive laws of Louisiana 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.
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.
29
MINDEN BANCORP, INC. (IN FORMATION) THE MINDEN BUILDING & LOAN
ASSOCIATION
By: By:
------------------------- -------------------------
A. Xxxxx Xxxxx A. Xxxxx Xxxxx
President and Chief Executive Officer President and Chief Executive
Officer
MINDEN MUTUAL HOLDING COMPANY
(IN FORMATION)
By:
-------------------------
A. Xxxxx Xxxxx
President and Chief Executive Officer
Agreed to and accepted:
TRIDENT SECURITIES
A DIVISION OF MCDONALD INVESTMENTS, INC.
By:
-------------------------
R. Xxx Xxxxxxx, Xx.
Managing Director
30
Exhibit A
Trident Securities, a Division of McDonald 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
31
