Exhibit 1.1
PULASKI FINANCIAL CORP.
Up to 6,900,000 Shares of Common Stock
$.01 Par Value
Purchase Price $10.00 Per Share
AGENCY AGREEMENT
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______________, 1998
▇▇▇▇▇▇▇ ▇▇▇▇ & Company
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Ladies and Gentlemen:
Pulaski Bancshares M.H.C., a federally chartered mutual holding company
(the "MHC"), Pulaski Bank, a Federal Savings Bank, St. Louis, Missouri (the
"Savings Bank"), a federally chartered savings bank with 69.81% of its
outstanding common stock owned by the MHC and with its deposit accounts insured
by the Savings Association Insurance Fund (the "SAIF") administered by the
Federal Deposit Insurance Corporation (the "FDIC"), and Pulaski Financial Corp.,
St. Louis, Missouri, a Delaware corporation (the "Company") (the MHC, the
Savings Bank and the Company being sometimes referred to together herein as the
"Constituent Entities"), hereby confirm their agreement with ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ &
▇▇▇▇▇, Inc., doing business through its division ▇▇▇▇▇▇▇ ▇▇▇▇ & Company (the
"Agent"), as follows:
SECTION 1. THE OFFERING. The Savings Bank, in accordance with a plan of
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conversion (the "Plan"), adopted by its Board of Directors, intends to convert
from the mutual holding company form of organization to the stock holding
company form of organization and to issue all of its outstanding capital stock
to the Company.
Pursuant to the Plan, the Company will offer and sell up to 6,900,000
(subject to adjustment up to 7,935,000) shares of its common stock, with a par
value of $.01 per share (the "Shares" or "Common Stock"), in a subscription
offering (the "Subscription Offering") to (i) Eligible Account Holders, (ii) the
Savings Bank's ESOP, (iii) Supplemental Eligible Account Holders and (iv) Other
Members, as those terms are defined in the Plan. The Company shall offer any
Shares not subscribed for in the Subscription Offering for sale in a community
offering (the "Direct Community Offering" and, when referred to together with
the Subscription Offering, the "Subscription and Direct Community Offering") to
certain members of the general public to whom a copy of the Prospectus (as
hereinafter defined) is delivered, with preference given first to public
stockholders of the Savings Bank and second to natural persons and trusts of
natural persons who reside in St. Louis, Missouri; St. ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ or St. Louis Counties, Missouri; or Jersey, St. Clair, Monroe or
Madison Counties, Illinois. If any
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Shares are not subscribed for or purchased in the Subscription and Direct
Community Offering, the Agent, at the request of the Company and the Savings
Bank, shall seek to form a syndicate of selected registered broker-dealers to
assist in the sale of such Shares on a best efforts basis in a syndicated
community offering (the "Syndicated Community Offering"). It is acknowledged
that the purchase of the Shares is subject to the purchase limitations described
in the Plan and that the Company and the Savings Bank may reject, in whole or in
part, any orders received in the Direct Community Offering or the Syndicated
Community Offering. The Subscription Offering, Direct Community Offering and
Syndicated Community Offering are collectively referred to as the "Offering."
Collectively, the Offering and the other activities described in the Plan are
referred to herein as the "Conversion."
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-1 (File No. 333-___________),
including exhibits (the "Registration Statement"), containing a prospectus
relating to the Offering, for the registration of the Shares under the
Securities Act of 1933 (the "1933 Act"), and has filed such amendments and
supplements thereto, if any, and such amended prospectuses and supplemented
prospectuses as may have been required to the date hereof. The prospectus, as
amended, on file with the Commission at the time the Registration Statement
initially becomes effective is hereinafter called the "Prospectus," except that
if any prospectus is filed by the Company pursuant to Rule 424(b) or (c) of the
rules and regulations of the Commission under the 1933 Act (the "1933 Act
Regulations") differing from the prospectus on file at the time the Registration
Statement initially becomes effective, the term "Prospectus" shall refer to the
prospectus filed pursuant to Rule 424(b) or (c) from and after the time said
prospectus is filed with the Commission.
The Savings Bank has filed with the Office of Thrift Supervision (the
"OTS") an Application for Approval of Conversion, including exhibits (the
"Conversion Application"), including the Prospectus contained therein, and has
filed such amendments or supplements thereto, if any, as may have been required
pursuant to the Home Owners' Loan Act, as amended (the "HOLA"), and 12 C.F.R.
Part 563b (the "Conversion Regulations"). In addition, the Company has filed
with the OTS an application on Form H-(e)1-S, including exhibits (the "Holding
Company Application'), and has filed such amendments or supplements thereto, if
any, as may have been required to become a registered savings and loan holding
company under the HOLA.
SECTION 2. RETENTION OF AGENT; COMPENSATION AND EXPENSES; SALE AND
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DELIVERY OF THE SHARES. Subject to the terms and conditions herein set forth,
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the Constituent Entities hereby appoint the Agent as their exclusive financial
advisor and marketing agent to utilize its best efforts to solicit subscriptions
for the Shares and to advise and assist them with respect to the sale of the
Shares in the Offering.
On the basis of the representations and warranties and the agreements
herein, but subject to the terms and conditions herein, the Agent accepts such
appointment and agrees to consult
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with and advise the Constituent Entities as to the matters set forth in the
letter agreement dated March 25, 1998 (the "Letter Agreement"), between the
Savings Bank and the Agent. The Agent shall not be required to purchase any
Shares or take any action inconsistent with all applicable laws, regulations,
decisions or orders. In the event of the Syndicated Community Offering, the
Agent shall seek to assemble and manage a selling group of selected registered
broker-dealers which are members of the National Association of Securities
Dealers, Inc. (the "NASD") to participate in the solicitation of purchase orders
for shares under a selected dealers' agreement in the form attached hereto as
Exhibit A.
The obligations of the Agent pursuant to this Agreement shall terminate
upon the completion, termination or abandonment of the Plan by the Savings Bank
or upon termination of the Offering, but in no event later than _____________,
1998 (the "End Date"), unless otherwise specifically provided in this Agreement.
All unpaid fees and expenses due to the Agent shall be payable in next day funds
at the earlier of the Closing Date (as hereinafter defined) or the End Date. In
the event the Offering is extended beyond the End Date, the Company, the Savings
Bank and the Agent may agree to renew this Agreement under mutually acceptable
terms.
In the event the Company is unable to sell a minimum of 5,100,000 Shares
within the period herein provided, this Agreement shall terminate and the
Company shall refund to all persons who have subscribed for any of the Shares,
the full amount of their subscriptions plus accrued interest as set forth in the
Prospectus, and none of the parties to this Agreement shall have any obligation
to the other parties hereunder, except as set forth in this Section 2 and in
Sections 8, 9, and 10 hereof.
In the event the Offering is terminated for any reason not attributable to
the action or inaction of the Agent, the Agent shall have earned and be entitled
to be paid the fees and expenses accruing to the date of such termination
pursuant to this Section 2.
If all conditions precedent to the consummation of the Conversion are
satisfied, including without limitation the receipt of subscriptions for the
minimum number of Shares permitted to be sold in the Conversion on the basis of
the most recent updated appraisal report and compliance by the Constituent
Entities with the conditions set forth in Section 7 hereof to the reasonable
satisfaction of the Agent and its counsel, the Company agrees to issue, or have
issued, the Shares sold in the Offering and release for delivery certificates
for such Shares on the Closing Date (as hereinafter defined) against payment to
the Company by any means authorized by the Plan. The release of Shares against
payment therefor shall be made at a time, date and place mutually acceptable to
the Company, the Savings Bank and the Agent. Certificates for Shares shall be
delivered directly to the purchasers in accordance with their directions. The
date upon which the Company shall release or deliver the Shares sold in the
Offering, in accordance with the terms herein, is called the "Closing Date."
The Agent shall receive the following compensation for its services
hereunder:
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(a) A management fee of $40,000, payable in four consecutive monthly
installments, of which $_______ has been paid.
(b) A success fee equal to (i) 0.8% of the aggregate purchase price of the
Shares sold in the Subscription and Direct Community Offering,
excluding Shares subscribed or purchased by the Savings Bank's
officers, directors or employees (or their immediate family members)
or by the ESOP or any tax-qualified or stock-based compensation plans
(except Individual Retirement Accounts) or similar plan created by the
Savings Bank for some or all of its directors or employees. The
management fee described in the paragraph (a) will be applied against
the success fee.
(c) For Shares sold in the Syndicated Community Offering by selected
broker-dealers, the Agent shall receive a fee not to exceed 5.5% of
the aggregate purchase price of the Shares sold by such selected
broker-dealers, and the Agent shall pass on to such selected broker-
dealers an amount competitive with gross underwriting discounts
charged at such time for comparable amounts of stock sold at a
comparable price per share in a similar market environment. [IN THE
EVENT ANY FEES ARE PAID PURSUANT TO THIS SUBSECTION (C), SUCH FEES
SHALL BE IN LIEU OF, AND NOT IN ADDITION TO, THE FEES PAID PURSUANT TO
SUBSECTION (B) ABOVE.] Fees with respect to purchases effected with
the assistance of broker-dealers other than the Agent shall be
transmitted by the Agent to such broker-dealer.
Whether or not the Conversion is completed or the sale of the Shares by the
Company is consummated, the Constituent Entities jointly and severally agree to
pay or reimburse the Agent, from time to time upon the Agent's request, for its
reasonable out-of-pocket expenses (not to exceed $10,000) without prior approval
by the Company and the Savings Bank, including costs of travel, meals and
lodging, photocopying, telephone facsimile and couriers and the reasonable legal
fees and expenses of its counsel. Such reimbursement of legal fees will not
exceed $35,000.
The Company and the Savings Bank shall bear the expenses of the Offering
customarily borne by issuers including, without limitation, OTS, Commission,
"Blue Sky," and NASD filing and registration fees; the fees of the Savings
Bank's accountants, attorneys, appraiser, transfer agent and registrar, and
other agent fees and expenses; any stock issue or transfer taxes; printing,
mailing and marketing and syndicate expenses associated with the Conversion.
Full payment of the Agent's fees and expenses, as described above, shall be
made in next day funds on the earlier of the Closing Date or the End Date.
The Agent further agrees to provide financial advisory assistance to the
Company and the Savings Bank for a period of one year following completion of
the Conversion, including formation of a dividend policy and share repurchase
program, assistance with shareholder
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reporting and shareholder relations matters, general advice on mergers and
acquisitions and other related financial matters, without the payment by the
Company and the Savings Bank of any fees in addition to these set forth in this
Section 2.
SECTION 3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND ASSOCIATION.
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The Constituent Entities jointly and severally represent and warrant to the
Agent as follows:
(a) The Registration Statement has been declared effective by the
Commission; at the time the Registration Statement, including the Prospectus
contained therein, became effective, the Registration Statement, including the
Prospectus contained therein, complied as to form in all material respects with
the requirements of the 1933 Act and the 1933 Act Regulations, and the
Registration Statement, including the Prospectus contained therein, and any
information regarding any of the Constituent Entities contained in Sales
Information (as such term is defined in Section 8 hereof) authorized by the
Company or the Savings Bank for use in connection with the Offering, did not
contain an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading; and at
the time any Rule 424(b) or (c) Prospectus was filed with the Commission, the
Registration Statement, including the Prospectus contained therein (including
any amendment or supplement thereto), and any information regarding any of the
Constituent Entities contained in Sales Information (as such term is defined in
Section 8 hereof) authorized by the Company or the Savings Bank for use in
connection with the Offering, 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; provided, however, that the representations and warranties in this
Section 3(a) shall not apply to statements or omissions made in reliance upon
and in conformity with written information furnished to the Company or the
Savings Bank by the Agent expressly regarding the Agent for use in the
Prospectus under the captions "Market for Common Stock" and "The Conversion--
Plan of Distribution and Selling Commissions."
(b) The Conversion Application has been approved by the OTS, and the
related Prospectus and the proxy statement of the Savings Bank relating to the
special meeting of shareholders at which the Plan shall be considered for
approval by the Savings Bank's eligible shareholders have been authorized for
use by the OTS; at the time of the approval of the Conversion Application,
including the Prospectus contained therein, and as of the date of this
Agreement, the Conversion Application, including the Prospectus, complied as to
form in all material respects with the Conversion Regulations. At the time of
the approval of the Conversion Application, including the Prospectus contained
therein, and as of the date of this Agreement, the Conversion Application,
including the Prospectus contained therein, did not contain any untrue statement
of a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading; provided, however,
that the representations and warranties in this Section 3(b) shall not apply to
statements or omissions made in reliance upon
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and in conformity with written information furnished to the Company or the
Savings Bank by the Agent expressly regarding the Agent for use in the
Prospectus under the captions "Market for Common Stock" and "The Conversion."
(c) The Holding Company Application has been approved by the OTS. At the
time of the approval of the Holding Company Application and as of the date of
this Agreement, the Holding Company Application complied as to form in all
material respects with all applicable regulations.
(d) No order has been issued by the OTS, the Commission or any other
governmental agency preventing or suspending the use of the Prospectus, and no
action by or before any governmental entity to revoke any approval,
authorization or order of effectiveness related to the Conversion is pending or,
to the best knowledge of the Company and the Savings Bank, threatened.
(e) The Plan complies with the Conversion Regulations, and all action
required by the Conversion Regulations to be taken by the Boards of Directors of
the Constituent Entities to adopt and approve the implementation of the Plan has
been duly taken.
(f) To the best knowledge of the Constituent Entities, no person has sought
to obtain review of the final action of the OTS in approving the Plan or in
approving the Conversion Application or the Holding Company Application pursuant
to the HOLA, the Conversion Regulations, state securities laws and regulations
(collectively, the "Blue Sky Laws"), or any other statute or regulation.
(g) The MHC is organized and is validly existing as a federally chartered
mutual holding company in good standing under the laws of the United States and
is duly authorized to conduct its business and own its property as described in
the Registration Statement and the Prospectus; the MHC has obtained all
licenses, permits and other governmental authorizations required for the conduct
of its business except where the failure to obtain such licenses, permits or
other governmental authorizations would not materially adversely affect the
financial condition, earnings, capital, assets or properties of the MHC and the
Savings Bank taken as a whole; all such licenses, permits and governmental
authorizations are in full force and effect and the MHC is complying therewith
in all material respects; the MHC is duly qualified as a foreign corporation to
transact business in each jurisdiction in which the failure to be so qualified
in one or more of such jurisdictions would have a material adverse effect on the
financial condition, earnings, capital, assets properties or business of the MHC
and the Savings Bank taken as a whole.
(h) The Savings Bank is organized and is validly existing as a federally
chartered savings bank in good standing under the laws of the United States and
is duly authorized to conduct its business and own its property as described in
the Registration Statement and the Prospectus; the Savings Bank has obtained all
licenses, permits and other governmental
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authorizations required for the conduct of its business except where the failure
to obtain such licenses, permits or other governmental authorizations would not
materially adversely affect the financial condition, earnings, capital, assets
or properties of the Constituent Entities taken as a whole and considered as one
enterprise; all such licenses, permits and governmental authorizations are in
full force and effect and the Savings Bank is complying therewith in all
material respects; the Savings Bank is duly qualified as a foreign corporation
to transact business in each jurisdiction in which the failure to be so
qualified in one or more of such jurisdictions would have a material adverse
effect on the financial condition, earnings, capital, assets properties or
business of the Savings Bank.
(i) The Savings Bank does not own any equity securities or any equity
interest in any business enterprise except as described in the Prospectus.
(j) The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware, with
corporate power and authority to own, lease and operate its properties and to
conduct its business as described in the Registration Statement and the
Prospectus; the Company is qualified to do business as a foreign corporation in
Missouri and in each jurisdiction in which the conduct of its business as
contemplated to be conducted following the Conversion requires such
qualification, except where the failure to so qualify would not have a material
adverse effect on the financial condition, earnings, capital, assets, properties
or the business of the Company; the Company has obtained all licenses, permits
and other governmental authorizations currently required for the conduct of its
business except where the failure to obtain such licenses, permits or other
governmental authorizations would not materially adversely affect the financial
condition, earnings, capital, assets or properties of the Company and the
Savings Bank considered as one enterprise; and all such licenses, permits and
governmental authorizations are in full force and effect, and the Company is
complying in all material respects therewith.
(k) The Savings Bank is a member of the Federal Home Loan Bank of Des
Moines (the "FHLB-Des Moines"); the deposit accounts of the Savings Bank are
insured by the FDIC under the SAIF up to applicable legal limits; and no
proceedings for the termination or revocation of such membership or insurance
are pending or, to the best knowledge of the Savings Bank, threatened.
(l) The Constituent Entities have good and marketable title to all real
property and good title to all other assets material to their business and to
those properties and assets described in the Registration Statement and
Prospectus as owned by them, free and clear of all liens, charges, encumbrances
or restrictions, except as described therein or are not material to their
business, considered as one enterprise; and all of the leases and subleases
material to the business of the Constituent Entities, including those described
in the Registration Statement and Prospectus, are in full force and effect and
the Constituent Entities are complying therewith in all material respects.
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(m) The Company and the Savings Bank have received an opinion of Breyer &
Aguggia, Washington, D.C., with respect to the federal and Missouri income tax
consequences of the Conversion as described in the Registration Statement and
Prospectus; and the facts and representations upon which such opinions are based
are true, accurate and complete, and none of the Constituent Entities has taken
any action inconsistent therewith.
(n) The Constituent Entities have all such power, authority,
authorizations, approvals and orders, except approval or confirmation of the
final appraisal of the Savings Bank, as may be required to enter into this
Agreement, to carry out the provisions and conditions hereof and (i) to carry
out the Conversion as contemplated by the Plan, (ii) to convert the stock of the
Savings Bank held by public shareholders of the Savings Bank into Common Stock,
and (iii) to issue and sell the Shares to be sold by the Company as provided
herein and as described in the Prospectus; the consummation of the Conversion,
the execution, delivery and performance of this Agreement and the consummation
of the transactions herein contemplated have been duly and validly authorized by
all necessary corporate action on the part of the Constituent Entities, and this
Agreement has been validly executed and delivered by the Constituent Entities
and is the valid, legal and binding Agreement of each of them enforceable in
accordance with its terms, except as the enforceability thereof may be limited
by (i) bankruptcy, insolvency, moratorium, reorganization, conservatorship,
receivership or other similar laws relating to or affecting the enforcement or
creditors' rights generally or the rights of creditors of insured financial
institutions and their holding companies, the accounts of whose subsidiaries are
insured by the FDIC or (ii) general equity principles regardless of whether such
enforceability is considered in a proceeding in equity or at law and except to
the extent, if any, that the provisions of Sections 8 and 9 hereof may be
unenforceable as against public policy.
(o) The execution, delivery and performance of this Agreement by the
Constituent Entities will not: (i) conflict with or constitute a breach of, or
default under, the certificate of incorporation and bylaws of the Company or the
charter and bylaws of the MHC or the Savings Bank, or any material contract,
lease or other instrument to which any of the Constituent Entities is a party,
or any applicable law, rule, regulation or order; (ii) violate any
authorization, approval, judgment, decree, order, statute, rule or regulation
applicable to the Constituent Entities, except for such violation which would
not have a material adverse effect on the financial condition and results of
operations of the Constituent Entities, considered as one enterprise; or (iii)
with the exception of the liquidation account established in the Conversion,
result in the creation of any material lien, charge or encumbrance upon any
property of the Constituent Entities.
(p) Upon consummation of the Conversion, the authorized, issued and
outstanding equity capital of the Company will be within the range set forth in
the Prospectus under the caption "Capitalization," and no shares of Common Stock
have been or will be issued and outstanding prior to the Closing Date referred
to in Section 2 (other than in connection with the incorporation of the
Company); the Shares have been duly and validly authorized for issuance and,
when issued and delivered by the Company pursuant to the Plan against payment of
the
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consideration calculated as set forth in the Plan and in the Prospectus, will be
duly and validly issued, fully paid and nonassessable, except that Shares
purchased by the ESOP with funds borrowed from the Company will not be fully
paid to the extent payment therefor in cash has not been received by the
Company; no preemptive rights exist with respect to the Shares (except for
Subscription Rights granted pursuant to the Plan); and the terms and provisions
of the Shares will conform in all material respects to the description thereof
contained in the Registration Statement and the Prospectus. To the best
knowledge of the Constituent Entities, upon the issuance of the Shares, good
title to the Shares will be transferred from the Company to the purchasers
thereof against payment therefor, subject to such claims as may be asserted
against the purchasers thereof by third-party claimants.
(q) The Constituent Entities are not in violation of any directive from the
OTS, FDIC or any other governmental agency to make any material change in the
method of conducting their businesses so as to comply in all material respects
with all applicable statutes and regulations and, except as set forth in the
Registration Statement and the Prospectus, there is no suit, proceeding, charge
or action before or by any court, regulatory authority or governmental agency or
body, pending or, to the best knowledge of the Constituent Entities, threatened,
which might materially and adversely affect the Conversion, the performance of
this Agreement, the consummation of the transactions contemplated by the Plan
and as described in the Registration Statement and the Prospectus or which might
have a material adverse effect on the financial condition, earnings, capital,
properties, assets or business of the Constituent Entities, considered as one
enterprise.
(r) The financial statements of the Savings Bank which are included in the
Registration Statement, the Conversion Application and the Prospectus present
fairly the financial condition, results of operations, retained earnings and
cash flows of the Savings Bank 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 Conversion
Regulations, Regulation S-X of the Commission, and generally accepted accounting
principles ("GAAP") consistently applied through the periods involved (except as
noted therein). Such financial statements are consistent with the most recent
financial statements and other reports filed by the Savings Bank with the OTS,
except that accounting principles employed in such regulatory filings conform to
the requirements of such authorities and not necessarily to GAAP. The other
financial, statistical and pro forma information and related notes included in
the Prospectus present fairly the information shown therein on a basis
consistent with the audited and unaudited financial statements of the Savings
Bank included in the Registration Statement and the Prospectus, and as to the
pro forma adjustments, the adjustments made therein have been properly applied
on the bases described therein.
(s) Since the respective dates as of which information is given in the
Registration Statement and the Prospectus, except as may otherwise be stated
therein: (i) there has not been any material adverse change in the financial
condition, earnings, capital, properties or business of the Constituent
Entities, considered as one enterprise, whether or not arising in the ordinary
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course of business; (ii) there has not been any material increase in loans past
due 90 days or more or in real estate acquired by foreclosure, by deed-in-lieu
of foreclosure, or deemed in-substance foreclosure, (iii) there has not been any
material decrease in surplus and reserves or total assets of the Savings Bank,
(iv) none of the Constituent Entities has issued any securities or incurred any
liability or obligation for borrowing other than in the ordinary course of
business; (v) there have not been any transactions entered into by the
Constituent Entities, except with respect to those transactions entered into in
the ordinary course of business; (vi) the properties and businesses of the
Constituent Entities conform in all material respects to the descriptions
thereof contained in the Prospectus; and (vii) none of the Constituent Entities
has any material contingent liabilities except as disclosed in the Prospectus.
(t) None of the Constituent Entities is in violation of its certificate of
incorporation or charter, as applicable, or its bylaws, or in default in the
performance or observance of any obligation, agreement, covenant, or condition
contained in any contract, lease, loan agreement, indenture or other instrument
to which it is a party or by which it or any of its property may be bound, which
would result in a material adverse effect on the financial condition, earnings,
capital, assets, properties or business of the Constituent Entities, considered
as one enterprise.
(u) No default exists, and no event has occurred which with notice or lapse
of time, or both, would constitute a default on the part of any of the
Constituent Entities in the due performance and observance of any term, covenant
or condition of any indenture, mortgage, deed of trust, note, bank loan or
credit agreement or any other instrument or agreement to which it is a party or
by which any of the Constituent Entities or any of their property is bound or
affected, except such defaults which would not have a material adverse effect on
the financial condition, earnings, capital, assets, properties or business of
the Constituent Entities, considered as one enterprise; and such agreements are
in full force and effect and no other party to any such agreements has
instituted or, to the best knowledge of the Constituent Entities, threatened any
action or proceeding wherein any of the Constituent Entities might be alleged to
be in default thereunder under circumstances where such action or proceeding, if
determined adversely to such entity, would have a material adverse effect on the
financial condition, earnings, capital, assets, properties or business of the
Constituent Entities, considered as one enterprise.
(v) No approval of any regulatory or supervisory or other public authority
is required in connection with the execution and delivery of this Agreement or
the issuance of the Shares, except for the approvals of the OTS and the
Commission, and any necessary qualification, notification, registration or
exemption under the Blue Sky Laws of the various jurisdictions in which the
Shares are to be offered.
(w) Deloitte & Touche LLP, which has certified the financial statements of
the Savings Bank contained in the Registration Statement, Conversion
Application, and the Prospectus, are, with respect to the Constituent Entities,
independent public accountants within the meaning of the Code of Professional
Ethics of the American Institute of Certified Public Accountants, the Conversion
Regulations, and the 1933 Act Regulations.
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(x) RP Financial, L.C., which has prepared the Conversion Valuation
Appraisal Report as of _____________, 1998, as amended or supplemented, if so
amended or supplemented (the "Appraisal"), is independent of the Constituent
Entities within the meaning of the Conversion Regulations.
(y) The Constituent Entities have timely filed all required federal, state
and local tax returns and paid all taxes due and payable in respect of such
returns, except where permitted to be extended, and have made adequate reserves
for similar future tax liabilities and no deficiency has been asserted with
respect thereto by any taxing authority.
(z) The Savings Bank complies in all material respects with the applicable
financial recordkeeping and reporting requirements of the Currency and Foreign
Transactions Reporting Act of 1970, as amended, and the regulations and rules
thereunder.
(aa) To the knowledge of the Constituent Entities, none of the Constituent
Entities has lent any funds for the purchase of Shares or has made any other
payment of funds prohibited by law, and no funds have been set aside to be used
for any payment prohibited by law.
(bb) None of the Constituent Entities has: (i) issued any securities within
the last 18 months (except for notes to evidence bank loans or other liabilities
in the ordinary course of business or as described in the Prospectus); (ii) had
any dealings within the immediate prior 12 months with any NASD member, or any
person related to or associated with such member, other than discussions and
meetings relating to the Offering and purchases and sales of United States
government and agency and other securities in the ordinary course of business;
(iii) entered into a financial or management consulting agreement except as
contemplated hereunder and except for the Letter Agreement; and (iv) engaged any
intermediary other than the Agent in connection with the Offering, and no person
is being compensated in any manner for such service.
(cc) The Constituent Entities have not relied upon the Agent or the Agent's
counsel for any legal, tax or accounting advice in connection with the
Conversion.
(dd) All documents delivered by the Constituent Entities or their
representatives in connection with the issuance and sale of the Common Stock and
the Agent's exercise of due diligence, were, on the dates on which they were
delivered, accurate and complete in all material respects or were amended in
writing to be accurate and complete in all material respects.
(ee) The records of Eligible Account Holders, Supplemental Eligible Account
Holders and Other Members are accurate and complete in all material respects.
(ff) To the best knowledge of the Constituent Entities, each of them
complies with all laws, rules and regulations relating to environmental
protection, and none of the Constituent Entities has been notified or is
otherwise aware that any of them is potentially liable, or is considered
potentially liable, under the Comprehensive Environmental Response, Compensation
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and Liability Act of 1980, as amended, or any other federal, state or local
environmental laws and regulations; no action, suit, regulatory investigation or
other proceeding is pending, or to the best knowledge of the Constituent
Entities, threatened against any of the Constituent Entities relating to
environmental protection, nor do the Constituent Entities have any reason to
believe that any such proceedings may be brought against any of them; and to the
best knowledge of the Constituent Entities, 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 occurred on, in, at or about any facilities or properties owned
or leased by any of the Constituent Entities or in which the Savings Bank has a
security interest.
Any certificate signed by an officer of any of the Constituent Entities
pursuant to the conditions of this Agreement and delivered to the Agent or its
counsel that refers to this Agreement shall be deemed to be a representation and
warranty by the Constituent Entities to the Agent as to the matters covered
thereby with the same effect as if such representation and warranty were set
forth herein,
SECTION 4. REPRESENTATIONS AND WARRANTIES OF THE AGENT. The Agent
-------------------------------------------
represents and warrants to the Constituent Entities that:
(a) ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, Inc. is a corporation in good standing under
the laws of the State of New York with full power and authority to provide the
services to be furnished to the Constituent Entities hereunder; ▇▇▇▇▇▇▇ ▇▇▇▇ &
Company is an unincorporated division of ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, Inc.
(b) 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 the Agent, and this Agreement has
been duly and validly executed and delivered by the Agent and is the legal,
valid and binding agreement of the Agent, enforceable in accordance with its
terms, except as the enforceability thereof may be limited by (i) bankruptcy,
insolvency, moratorium, reorganization, conservatorship, receivership or other
similar laws relating to or affecting the enforcement or creditors' rights
generally, or (ii) general equity principles regardless of whether such
enforceability is considered in a proceeding in equity or at law.
(c) The execution and delivery of this Agreement by the Agent, the
consummation of the transactions contemplated hereby and compliance with the
terms and provisions hereof shall not conflict with, or result in a breach of,
any of the terms, provision or conditions of, or constitute a default (or event
which with notice or lapse of time or both would constitute a default) under,
the articles of incorporation of ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, Inc. or any material
agreement, indenture or other instrument to which the Agent is a party or by
which it or its property is bound.
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(d) The Agent and its employees, and to the best knowledge of the Agent,
its agents and representatives, who shall perform any of the services hereunder
shall be duly authorized and empowered, and shall have all licenses, approvals
and permits necessary to perform such services.
(e) No approval of any regulatory, supervisory or other public authority
other than the NASD is required in connection with the Agent's execution and
delivery of this Agreement, and the approval of the NASD has been received.
(f) There is no suit, proceeding, charge, or action before or by any court,
regulatory authority or government agency or body pending or, to the best
knowledge of the Agent, threatened, which might materially and adversely affect
the Agent's performance of this Agreement.
SECTION 5. COVENANTS OF THE COMPANY AND THE SAVINGS BANK. The Constituent
---------------------------------------------
Entities hereby jointly and severally covenant with the Agent as follows:
(a) The Company will not file any amendment or supplement to the
Registration Statement without providing the Agent and its counsel an
opportunity to review such amendment or supplement, and will not file any
amendment or supplement to which the Agent or its counsel shall reasonably
object.
(b) The Savings Bank will not file any amendment or supplement to the
Conversion Application without providing the Agent and its counsel an
opportunity to review such amendment or supplement, and will not file any
amendment or supplement to which the Agent or its counsel shall reasonably
object.
(c) At any time after the Holding Company Application is approved by the
OTS, the Company will not file any amendment or supplement to the Holding
Company Application without providing the Agent and its counsel an opportunity
to review such amendment or supplement, and will not file any amendment or
supplement to which the Agent or its counsel may reasonably object.
(d) The Constituent Entities shall notify the Agent in writing of any
violation of its certificate of incorporation or bylaws, in the case of the
Company, and their respective charters and bylaws, in the case of the MHC and
the Savings Bank, at any time after the date hereof and prior to the Closing
Date. Unless waived in writing by the Agent, which waiver shall not be
unreasonably withheld, the Company shall not be in violation of its certificate
of incorporation or bylaws, and the MHC and Savings Bank shall not be in
violation of their respective charters or bylaws, at any time after the date
hereof and prior to the Closing Date.
(e) The Company and the Savings Bank shall use their best efforts to cause
any post-effective amendment to the Registration Statement to be declared
effective by the Commission
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and any post-approval amendment to the Conversion Application or the Holding
Company Application to be approved by the OTS, and shall immediately notify the
Agent upon receipt of any information concerning any of the following events:
(i) when any post-effective amendment to the Registration Statement has become
effective; (ii) when any post-approval amendment to the Conversion Application
has been approved; (iii) when any post-approval amendment to the Holding Company
Application has been approved; (iv) when any comments from the Commission, the
OTS, or any other governmental entity are issued with respect to the
Registration Statement, Conversion Application, Holding Company Application, or
the transactions contemplated by this Agreement; (v) when any request is made by
the Commission, the OTS or any other governmental entity for any amendment or
supplement to the Registration Statement, the Conversion Application or the
Holding Company Application, or for any other additional information; (vi) when
the Commission, the OTS or any other governmental entity issues any order or
takes or threatens any action to suspend the Offering, the effectiveness of the
Registration Statement, or the use of the Prospectus or any other filing of the
Company or the Savings Bank under the Conversion Regulations, or other
applicable law; (vii) the issuance by the Commission, the OTS or any other
governmental authority of any stop order suspending the effectiveness of the
Registration Statement or the approval of the Conversion Application or the
Holding Company Application, or of the initiation or threat of initiation of any
proceedings for any such purpose; or (viii) the occurrence of any event
mentioned in paragraph (j) below; and the Company and the Savings Bank shall
make every reasonable effort to prevent the issuance by the Commission, the OTS
or any state authority of any order referred to in (vi) and (vii) above, and if
any such order shall at any time be issued, to obtain the lifting thereof at the
earliest possible time.
(f) As of the Closing Date, the Savings Bank shall have all approvals and
authority to issue and sell the capital stock of the Savings Bank to the Company
and the Company shall have such approvals and orders to issue and sell the
Shares as provided for herein and as described in the Prospectus.
(g) The Company and the Savings Bank shall deliver to the Agent and to its
counsel two conformed copies of the Registration Statement, the Conversion
Application and the Holding Company Application, as originally filed and of each
amendment or supplement thereto, including all exhibits. The Company and the
Savings Bank shall also deliver such additional copies of the foregoing
documents to counsel to the Agent as may be required for any NASD filings.
(h) The Company shall furnish to the Agent, from time to time during the
period when the Prospectus is required to be delivered under the 1933 Act or the
Securities Exchange Act of 1934 (the "1934 Act"), such number of copies of such
Prospectus as the Agent may reasonably request for the purposes contemplated by
the 1933 Act, the 1933 Act Regulations, the 1934 Act or the rules and
regulations promulgated under the 1934 Act (the "1934 Act Regulations"); and the
Company authorizes the Agent to use the Prospectus in any lawful manner
contemplated by the Plan in connection with the sale of the Shares.
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(i) The Constituent Entities shall comply with any and all terms,
conditions, requirements and provisions with respect to the Conversion and the
transactions contemplated thereby imposed by the Commission and the OTS and by
the 1933 Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act
Regulations, to be complied with subsequent to the Closing Date; and when the
Prospectus is required to be delivered, the Company and the Savings Bank shall
comply, at their own expense, with all requirements imposed upon them by the
Commission and the OTS, and by the 1933 Act, the 1933 Act Regulations, the 1934
Act and the 1934 Act Regulations, in each case as from time to time in force, so
far as necessary to permit the continuance of sales or dealing in shares of
Common Stock during such period in accordance with the provisions hereof and the
Prospectus.
(j) If, at any time during the period when the Prospectus is required to be
delivered, any event relating to or affecting the Constituent Entities shall
occur, as a result of which it is necessary or appropriate, in the opinion of
counsel for the Constituent Entities or in the opinion of the Agent's counsel,
to amend or supplement the Registration Statement or Prospectus in order to make
the Registration Statement or Prospectus not misleading in light of the
circumstances existing at the time the Prospectus is delivered, the Company and
the Savings Bank shall, at their own expense, prepare and file with the
Commission and the OTS and furnish to the Agent a reasonable number of copies of
an amendment or amendments of, or a supplement or supplements to, the
Registration Statement or Prospectus (in form and substance satisfactory to the
Agent and its counsel after a reasonable time for review) which shall amend or
supplement the Registration Statement or Prospectus, so that as amended or
supplemented the Registration Statement and 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, not misleading.
(k) The Constituent Entities shall conduct the Conversion, including the
offer and sale of the Shares, in all material respects in accordance with the
Plan and the Conversion Regulations and all other applicable laws, regulations,
decisions and orders, including all terms, conditions, requirements and
provisions precedent to the Conversion imposed upon the Constituent Entities by
the Commission, the OTS or any other regulatory authority and in the manner
described in the Prospectus.
(l) The Constituent Entities shall each timely furnish to the Agent such
information with respect to them as the Agent may from time to time reasonably
request.
(m) The Company shall take all necessary action required to register the
Shares for offering and sale by the Company or to exempt such Shares from
registration and to exempt the Company as a broker-dealer and its officers,
directors and employees as broker-dealers or agents under the Blue Sky Laws of
such jurisdictions in which the Agent and the Company and the Savings Bank may
reasonably agree upon; provided, however, that the Company shall not be
obligated to file any general consent to service of process or to qualify to do
business in any jurisdiction in which it is not so qualified; and in each
jurisdiction where any of the Shares shall
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have been qualified or registered the Company shall prepare and file, at its own
expense, such statements and reports as may be required by the laws of such
jurisdiction.
(n) The Savings Bank shall duly establish and maintain the liquidation
account for the benefit of Eligible Account Holders and Supplemental Eligible
Account Holders in accordance with the Conversion Regulations.
(o) The Company and the Savings Bank shall not sell or issue, contract to
sell or otherwise dispose of, for a period of 180 days after the Closing Date,
without the prior written consent of the Agent, any shares of Common Stock other
than in connection with any plan or arrangement described in the Prospectus.
(p) The Common Stock shall be the subject of an effective registration
statement under Section 12(g) of the 1934 Act as of the Closing Date and the
Company shall maintain the effectiveness of such registration for not less than
two years.
(q) During the period during which the Common Stock is registered under the
1934 Act or for two years from the Closing Date, whichever period is greater,
the Company shall furnish to its stockholders as soon as practicable after the
end of each fiscal year an annual report in accordance with Rule 14a-3(b) of the
1934 Act Regulations.
(r) During the period of two years from the Closing Date, the Company shall
furnish to the Agent: (i) as soon as practicable after such information is
publicly available, a copy of each report of the Company furnished to or filed
with the Commission under the 1934 Act or any national securities exchange or
system on which any class of securities of the Company is listed or quoted
(including, but not limited to, reports on Forms 10-K, 10-Q and 8-K and all
proxy statements and annual reports to stockholders), (ii) a copy of each other
non-confidential report of the Company mailed to its stockholders or filed with
the Commission, the OTS or any other supervisory or regulatory authority or any
national securities exchange or system on which any class of securities of the
Company is listed or quoted, each press release and material news items and
additional documents and information with respect to the Company or the Savings
Bank as the Agent may reasonably request; and (iii) from time to time, such
other non-confidential information concerning the Company or the Savings Bank as
the Agent may reasonably request.
(s) The Company and the Savings Bank shall use the net proceeds from the
sale of the Shares in the manner set forth in the Prospectus under the caption
"Use of Proceeds."
(t) The Company will not distribute any prospectus (as defined in Section
2(10) of the ▇▇▇▇ ▇▇▇) other than the Prospectus and the Sales Information (as
defined in Section 8 hereof) in connection with the offer and sale of the Shares
without first notifying the Agent.
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(u) The Company shall use its best efforts to (i) encourage and assist
three market makers to establish and maintain a market for the Shares and (ii)
list the Shares on The Nasdaq Stock Market effective on or prior to the Closing
Date.
(v) The Savings Bank shall maintain appropriate arrangements for depositing
all funds received from persons mailing subscriptions for or orders to purchase
Shares in the Offering on an interest bearing basis at the rate described in the
Prospectus until the Closing Date and satisfaction of all conditions precedent
to the release of the Savings Bank's obligation to refund payments received from
persons subscribing for or ordering Shares in the Offering in accordance with
the Plan and as described in the Prospectus or until refunds of such funds have
been made to the persons entitled thereto or withdrawal authorizations cancelled
in accordance with the Plan and as described in the Prospectus. The Savings
Bank shall maintain such records of all funds received to permit the funds of
each subscriber to be separately insured by the FDIC (to the maximum extent
allowable) and to enable the Savings Bank to make the appropriate refunds of
such funds in the event that such refunds are required to be made in accordance
with the Plan and as described in the Prospectus.
(w) The Company shall register as a savings and loan holding company under
the HOLA within 90 days of the Closing Date.
(x) The Company and the Savings Bank shall take such actions and furnish
such information as are reasonably requested by the Agent in order for the Agent
to ensure compliance with the NASD's "Interpretation Relating to Free Riding and
Withholding."
(y) The Savings Bank will not amend the Plan of Conversion without
notifying the Agent prior thereto.
(z) The Company and the Savings Bank shall assist the Agent, if necessary,
in connection with the allocation of the Shares in the event of an
oversubscription and shall provide the Agent with any information necessary in
allocating the Shares in such event.
(aa) The Company and the Savings Bank shall comply with the provisions of
Rule 158 of the 1933 Act Regulations.
(bb) The Company shall report the use of proceeds of the Offering pursuant
to Rule 463 of the 1933 Act Regulations.
(cc) The Constituent Entities shall use all reasonable efforts to satisfy,
or cause to be satisfied, the conditions precedent to the several obligations of
the Agent specified in Section 7 hereof.
(dd) Until the Closing Date, the Constituent Entities shall conduct their
businesses in material compliance with all applicable federal and state laws,
rules, regulations, decisions,
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directives and orders, including all decisions, directives and orders of the
Commission, the OTS and the FDIC.
(ee) Upon completion of the sale by the Company of the Shares contemplated
by the Prospectus, (i) all of the authorized and outstanding capital stock of
the Savings Bank shall be owned by the Company, (ii) the Company shall have no
direct subsidiaries other than the Savings Bank, and (iii) the Conversion shall
have been effected in accordance with all applicable statutes, regulations,
decisions and orders; and all terms, conditions, requirements and provisions
with respect to the Conversion (except those that are conditions subsequent)
imposed by the Commission, the OTS or any other governmental agency, if any,
shall have been complied with by the Constituent Entities in all material
respects or appropriate waivers shall have been obtained and all notice and
waiting periods shall have been satisfied, waived or elapsed.
SECTION 6. COVENANTS OF THE AGENT. The Agent hereby covenants with the
----------------------
Company and the Savings Bank as follows:
(a) During the Offering, the Agent shall comply, in all material respects,
with all requirements imposed upon it by the OTS and, to the extent applicable,
by the 1933 Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act
Regulations.
(b) The Agent shall distribute the Prospectus in connection with the sales
of the Common Stock in accordance with the Conversion Regulations, the 1933 Act
and the 1933 Act Regulations.
SECTION 7. CONDITIONS TO THE AGENT'S OBLIGATIONS. The Agent's obligations
-------------------------------------
hereunder are subject, to the extent not waived in writing by the Agent, to the
condition that all representations and warranties of the Constituent Entities
herein are, at and as of the commencement of the Offering and at and as of the
Closing Date, true and correct in all material respects, the condition that the
Constituent Entities shall have performed all of their obligations hereunder to
be performed on or before such dates, and to the following further conditions:
(a) At the Closing Date, the Constituent Entities shall have conducted the
Conversion in all material respects accordance with the Plan, the Conversion
Regulations, and all other applicable laws, regulations, decisions and orders,
including all terms, conditions, requirements and provisions precedent to the
Conversion imposed upon them by the OTS, the FDIC, the Commission and any state
securities agency.
(b) The Registration Statement shall have been declared effective by the
Commission, the Conversion Application approved by the OTS, and the Holding
Company Application approved by the OTS, not later than 5:30 p.m. on the date of
this Agreement or with the Agent's consent at a later time and date; and at the
Closing Date, no stop order suspending the effectiveness of the Registration
Statement shall have been issued under the 1933 Act or proceedings therefore
initiated or threatened by the Commission, or any state authority and no
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order or other action suspending the authorization of the Prospectus or the
consummation of the Conversion shall have been issued or proceedings therefore
initiated or, to the knowledge of the Constituent Entities, threatened by the
Commission, the OTS or any other federal or state authority.
(c) At the Closing Date, the Agent shall have received:
(1) The favorable opinion, dated as of the Closing Date and addressed
to the Agent for their benefit, of Breyer & Aguggia, counsel for the
Company and the Savings Bank, in form and substance to the effect that:
(i) The Company has been duly incorporated and is validly
existing and in good standing under the laws of the State of Delaware
and has corporate power and authority to own, lease and operate its
properties and to conduct its business as described in the
Registration Statement and the Prospectus; and the Company is duly
qualified to do business and in good standing as a foreign corporation
in Missouri.
(ii) The Savings Bank is and upon consummation of the
Conversion will remain a validly existing federal savings bank in the
capital stock form of organization under the laws of the United States
of America with full corporate power and authority to conduct its
business and own its property as described in the Registration
Statement and Prospectus; and upon consummation of the Conversion, all
of the issued and outstanding capital the stock of the Savings Bank
shall be duly authorized, validly issued, fully paid and non-
assessable, and all such capital stock shall be owned of record and,
to such counsel's knowledge, shall be owned beneficially by the
Company free and clear of any liens, encumbrances or claims.
(iii) The Savings Bank is a member of the FHLB-Des Moines; the
deposit accounts of the Savings Bank are insured by the FDIC under the
SAIF up to the maximum amount allowed under law; and, to such
counsel's knowledge, no proceedings for the termination or revocation
of such membership or insurance are pending or threatened.
(iv) Upon consummation of the Conversion, the authorized,
issued and outstanding capital stock of the Company shall be within
the range set forth in the Prospectus under the caption
"Capitalization," and except for shares issued upon incorporation of
the Company, no shares of Common Stock have been issued prior to the
Closing Date; upon consummation of the Conversion, the Shares issued
to public shareholders of the Savings Bank and the Shares subscribed
for pursuant to the Offering have been duly and validly authorized for
issuance and, when issued and delivered by the Company pursuant to the
Plan against payment
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of the consideration calculated as set forth in the Plan and the
Prospectus (in the case of the Shares subscribed for pursuant to the
Offering), shall be duly and validly issued, fully paid and non-
assessable, except that Shares purchased by the ESOP with funds
borrowed from the Company are not fully paid to the extent payment
therefor in cash has not been received by the Company; except for
subscription rights granted pursuant to the Plan, the issuance of the
Shares is not subject to preemptive rights; the terms and provisions
of the Shares conform to the description thereof contained in the
Prospectus; and the form of certificate used to evidence the Common
Stock complies with applicable law. To such counsel's knowledge, upon
the issuance of the Shares, good title to the Shares will be
transferred from the Company to the purchasers thereof against payment
therefor, subject to such claims as may be asserted against the
purchasers thereof by third-party claimants.
(v) The Conversion Application and the Holding Company
Application have been approved by the OTS, and the Prospectus and the
proxy statement of the Savings Bank have been authorized for use by
the OTS; and no action is pending or, to such counsel's knowledge,
threatened to revoke any such authorizations or approvals.
(vi) 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 the
Constituent Entities; and this Agreement is a valid and binding
obligation of the Constituent Entities, enforceable against them in
accordance with its terms, except as the enforceability thereof may be
limited (a) by bankruptcy, insolvency, moratorium, reorganization,
conservatorship, receivership or other similar laws now or hereafter
in effect relating to or affecting the enforcement of creditors'
rights generally or the rights of creditors of savings institutions
and their holding companies, (b) by general equitable principles,
regardless of whether such enforceability is considered in a
proceeding in equity or at law, (c) by laws relating to the safety and
soundness of insured depository institutions or (d) by applicable law
or public policy with respect to the indemnification and contribution
provisions contained herein, including without limitation the
provisions of Sections 23A and 23B of the Federal Reserve Act.
(vii) The execution and delivery of this Agreement and the
incurrence and performance of the obligations set forth herein by the
Constituent Entities do not (a) result in any violation of any
applicable law or regulation (except that no opinion need be rendered
with respect to the Blue Sky Laws of various jurisdictions), (b)
conflict with or violate the certificate of incorporation and bylaws
of the Company or the respective charters and bylaws of the MHC and
the Savings Bank, or (c) to such counsel's knowledge, constitute a
breach of, or
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default under (or an event which, with notice or lapse of time or
both, would constitute a default under), or result in the creation or
imposition of any lien, charge or encumbrance upon any property or
assets of the Savings Bank or the Company pursuant to any contract,
indenture, mortgage, loan agreement, note, lease or other instrument
to which any of the Constituent Entities is a party or by which any of
them may be bound, or to which any of the property or assets of the
Constituent Entities is subject that, individually or in the aggregate
would have a material adverse effect on the financial condition,
results of operations or business of the Company and the Savings Bank,
considered as one enterprise.
(viii) The Plan has been duly adopted by the votes of the
directors of the Constituent entities required by the Conversion
Regulations and, based upon the certificate of the inspectors of
election, approved by the eligible shareholders of the Savings Bank
and by the eligible voting members of the MHC in accordance with the
Conversion Regulations and the respective charters and bylaws of the
MHC and the Savings Bank.
(ix) Subject to the satisfaction of the conditions to the OTS
approval of the Conversion, no further approval, registration,
authorization, consent or other order of or notice to any governmental
agency is required in connection with the execution and delivery of
this Agreement, the issuance of the Shares and the consummation of the
Conversion, except as may be required under the Blue Sky Laws of
various jurisdictions or the rules and regulations of the NASD (as to
which no opinion need be rendered).
(x) The Registration Statement has been declared effective
under the 1933 Act and no stop order suspending the effectiveness has
been issued or proceedings therefor initiated or, to such counsel's
knowledge, threatened by the Commission.
(xi) At the time the Conversion Application, including the
Prospectus contained therein, was approved by the OTS, the Conversion
Application, including the Prospectus contained therein (other than
the financial statements, the notes thereto, financial tables, and
other financial, statistical and appraisal data included therein, as
to which no opinion need be rendered), complied as to form in all
material respects with the requirements of the Conversion Regulations.
(xii) At the time that the Registration Statement became
effective, the Registration Statement, including the Prospectus (other
than the financial statements, the notes thereto, financial tables,
financial, statistical and appraisal data included therein, as to
which no opinion need be rendered) complied as to form in all material
respects with the requirements of the 1933 Act and the 1933 Act
Regulations.
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(xiii) To such counsel's knowledge, there are no legal or
governmental proceedings pending or threatened against any of the
Constituent Entities or their principals that are required to be
disclosed in the Registration Statement and the Prospectus other than
those disclosed therein .
(xiv) To such counsel's knowledge, there are no contracts,
indentures, mortgages, loan agreements, notes, leases or other
instruments required to be described or referred to in the Conversion
Application, the Registration Statement or the Prospectus or required
to be filed as exhibits to the Registration Statement or the
Conversion Application other than those described or referred to
therein or filed as exhibits thereto; the descriptions in the
Conversion Application, the Registration Statement and the Prospectus
of the contracts, indentures, mortgages, loan agreements, notes,
leases or other instruments filed as exhibits thereto are accurate in
all material respects and fairly present the information required to
be shown.
(xv) The Plan complies with the HOLA and the Conversion
Regulations; no order has been issued by the OTS, the Commission or
any state authority to suspend the Offering or the use of the
Prospectus, and no action for such purposes has been instituted or, to
such counsel's knowledge, threatened; and, to such counsel's
knowledge, no person has sought to obtain regulatory or judicial
review of the final action of the OTS approving the Plan, the
Conversion Application, the Holding Company Application or the
Prospectus.
(xvi) To such counsel's knowledge, the Constituent Entities
have obtained all licenses, permits and other governmental
authorizations currently required for the conduct of their respective
businesses as described in the Registration Statement and Prospectus,
except for licenses, approvals or authorizations the failure of which
to have would not result in a material adverse change in the financial
condition, results of operation or the business of the Company and the
Savings Bank, considered as one enterprise, and, to such counsel's
knowledge, all such licenses, permits and other governmental
authorizations are in full force and effect, and, to such counsel's
knowledge, the Constituent Entities are in all material respects
complying therewith.
(xvii) To such counsel's knowledge, none of the Constituent
Entities is in violation of its certificate of incorporation and
bylaws, or charter and bylaws, as the case may be, nor, to such
counsel's knowledge, in default (nor has any event occurred which,
with notice or lapse of time or both, would constitute a default) in
the performance or observance of any obligation, agreement, covenant
or condition contained in any material contract, indenture, mortgage,
loan agreement, note, lease or other instrument to which any of the
Constituent Entities is a party or by which any of the Constituent
Entities or any of their
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property may be bound in any respect that would have a material
adverse effect upon the financial condition, results of operations or
business of the Company and the Savings Bank, considered as one
enterprise.
(xviii) To such counsel's knowledge, none of the Constituent
Entities is in violation of any directive from the OTS or the FDIC to
make any material change in the method of conducting its business.
(xix) The information in the Prospectus under the captions
"Regulation, "The Conversion," "Restrictions on Acquisition of the
Holding Company," "Taxation," and "Description of Capital Stock of the
Holding Company," to the extent that such information constitutes
matters of law, summaries of legal matters, documents or proceedings,
or legal conclusions, has been reviewed by such counsel and is
accurate and complete in all material respects.
In giving such opinion, such counsel may rely as to all matters of
fact on certificates of officers or directors of the Constituent Entities
and certificates of public officials. Such opinion may specify that it
shall be limited to matters of federal and Delaware law. All references to
such counsel's "knowledge" in such opinion shall refer to the actual and
conscious awareness of facts or other information of the individual Breyer
& Aguggia attorneys who have been actively involved in the transactions
contemplated by this Agreement or the preparation of such opinion. For
purposes of such opinion, no proceedings shall be deemed to be pending, no
order or stop order shall be deemed to be issued, and no action shall be
deemed to be instituted unless, in each case, a director or executive
officer of one of the Constituent Entities, or its counsel, shall have
received a copy of such proceedings, order, stop order or action, and such
counsel need not regard any litigation or governmental proceeding to be
"threatened" unless the potential litigant or governmental authority has
manifested to the management of one of the Constituent Entities. or to its
counsel, a present intention to initiate such litigation or proceeding.
Such counsel may assume that any agreement is the valid and binding
obligation of any parties to such agreement other than the Constituent
Entities.
In addition, such counsel shall provide a letter stating that during
the preparation of the Registration Statement, Conversion Application and
the Prospectus, such counsel participated in conferences with certain
officers and other representatives of the Constituent Entities,
representatives of the Agent, counsel to the Agent and representatives of
the independent public accountants for the Constituent Entities at which
the contents of the Registration Statement, the Conversion Application and
the Prospectus and related matters were discussed and, although they are
not passing upon and do not assume the responsibility for the accuracy,
completeness or fairness of the statements contained in the Registration
Statement, the Conversion Application and Prospectus, on the basis of the
foregoing (relying as to factual matters on certificates of officers and
other factual representations by the Constituent Entities), nothing has
come to such
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counsel's attention that caused them to believe that the Registration
Statement at the time it was declared effective by the SEC or the
Prospectus as of its date and as of the Closing Date, contained or contains
any untrue statement of a material fact or omitted or omits to state any
material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading (it being understood that such counsel shall express
no comment or opinion with respect to the financial statements, schedules
and other financial information and statistical and stock valuation data
included, or statistical methodology employed, in the Registration
Statement, Conversion Application and Prospectus).
(2) The favorable opinion, dated as of the Closing Date, of Armstrong,
Teasdale, Schlafly & ▇▇▇▇▇, St. Louis, Missouri, counsel to the Agent, with
respect to such matters as the Agent may reasonably require. Such opinion
may rely, as to matters of fact, upon certificates of officers and
directors of the Company and the Savings Bank delivered pursuant hereto or
as such counsel shall reasonably request.
(d) At the Closing Date, the Agent shall receive certificates of the Chief
Executive Officer and the Chief Financial Officer of each of the Constituent
Entities, each dated as of the Closing Date, stating that: (i) they have
reviewed the Prospectus and, at the time the Prospectus became authorized for
final use, the Prospectus did not contain any untrue statement of a material
fact or omit to state a material fact necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading; (ii) since the respective dates as of which information is given in
the Registration Statement and the Prospectus and as of the Closing Date, no
material adverse change in the financial condition or in the earnings, capital,
properties or business of the Constituent Entities, considered as one
enterprise, has occurred and no other event has occurred which should have been
set forth in an amendment or supplement to the Prospectus which has not been so
set forth, and the conditions set forth in this Section 7 have been satisfied;
(iii) the representations and warranties in Section 3 are true and correct with
the same force and effect as though expressly made at and as of the Closing
Date; (iv) the Constituent Entities have complied with all agreements and
satisfied all conditions on their part to be performed or satisfied at or prior
to the Closing Date and will comply in all material respects with all
obligations to be satisfied by them after the Closing Date; (v) no stop order
suspending the effectiveness of the Registration Statement is pending or, to the
knowledge of the Constituent Entities, threatened by the Commission or any state
authority; (vi) no order suspending the Offering, the Conversion, or the
effectiveness of the Prospectus has been issued and no proceedings for that
purpose are pending or, to the knowledge of the Constituent Entities, threatened
by the OTS, the Commission, or any other authority; and (vii) to the knowledge
of the Constituent Entities, no person has sought to obtain review of the action
of the OTS approving the Plan.
(e) Prior to and at the Closing Date: (i) in the reasonable opinion of the
Agent, there shall have been no material adverse change in the financial
condition, or in the earnings or business of the Constituent Entities,
considered as one enterprise, from that as of the latest dates
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as of which such condition is set forth in the Prospectus other than
transactions referred to or contemplated therein; (ii) the Constituent Entities
shall not have received any directive from the OTS or the FDIC to make any
material change in the method of conducting their business with which it has not
complied (which directive, if any, shall have been disclosed to the Agent) or
which materially and adversely would affect their business, operations or
financial condition or income, considered as one enterprise; (iii) the
Constituent Entities shall not have been in default (nor shall an event have
occurred which, with notice or lapse of time or both, would constitute a
default) under any provision of any agreement or instrument relating to any
outstanding indebtedness; (iv) no action, suit or proceedings, at law or in
equity or before or by any federal or state commission, board or other
administrative agency, shall be pending or, to the knowledge of the Constituent
Entities, threatened against the Constituent Entities or affecting any of their
properties wherein an unfavorable decision, ruling or finding would materially
and adversely affect the business operations, financial condition or income of
the Constituent Entities, considered as one enterprise; and (v) where required,
the Shares have been qualified or registered for offering and sale under the
Blue Sky Laws of the jurisdictions in which the Shares have been offered for
sale.
(f) Concurrently with the execution of this Agreement, the Agent shall
receive a letter from Deloitte & Touche LLP dated the date hereof and addressed
to the Agent: (i) confirming that Deloitte & Touche LLP are independent public
accountants within the meaning of the 1933 Act, the 1933 Act Regulations, 12 CFR
Section 571.2(c)(3) and the Code of Professional Ethics of the American
Institute of Certified Public Accountants, and stating in effect that in their
opinion the financial statements of the Savings Bank as of March 31, 1998 and
1997 and for the years ended September 30, 1997, 1996 and 1995 included in the
Registration Statement and the Prospectus and covered by their opinion included
therein, comply as to form in all material respects with the applicable
accounting requirements of the 1933 Act, the 1933 Act Regulations, the
Conversion Regulations, and GAAP applied consistently; (ii) stating in effect
that, on the basis of certain agreed upon procedures (but not an audit
examination in accordance with generally accepted auditing standards) consisting
of a reading of the latest available unaudited interim financial statements of
the Savings Bank prepared by the Savings Bank, a reading of the minutes of the
meetings of the Boards of Directors of the Savings Bank and the MHC and the
members of the Savings Bank, and consultations with officers of the Savings Bank
responsible for financial and accounting matters, nothing came to its attention
which caused it to believe that: (A) the unaudited financial statements of the
Savings Bank included in the Prospectus are not in conformity with GAAP applied
on a basis substantially consistent with that of the audited financial
statements included in the Prospectus; and (B) during the period from the date
of the latest audited financial statements included in the Prospectus to a
specified date not more than three business days prior to the date hereof, there
was any increase in borrowings or in non-performing assets by the Company or the
Savings Bank; and (C) except as otherwise discussed in the Prospectus, there was
any decrease in retained earnings of the Savings Bank at the date of such letter
as compared with amounts shown in the latest audited statement of condition
included in the Prospectus or there was any decrease in net income or net
interest income of the Savings Bank for the number of full months commencing
immediately after the period covered
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by the latest audited income statement included in the Prospectus and ended on
the latest month end prior to the date of the Prospectus or in such letter as
compared to the corresponding period in the preceding year; and (iii) stating
that, in addition to the audit referred to in its opinion included in the
Prospectus and the performance of the procedures referred to in clause (ii) of
this subsection (f), it has compared with the general accounting records of the
Company and/or the Savings Bank, as applicable, which are subject to the
internal controls of the Company's and/or the Savings Bank's, as applicable,
accounting system and other data prepared by the Company and/or the Savings
Bank, as applicable, directly from such accounting records, to the extent
specified in such letter, such amounts and/or percentages set forth in the
Prospectus as the Agent may reasonably request, and they have found such amounts
and percentages to be in agreement therewith.
(g) At the Closing Date, the Agent shall receive a letter from Deloitte &
Touche LLP dated the Closing Date, addressed to the Agent, confirming the
statements made by them in the letter delivered by them pursuant to subsection
(f) of this Section 7, the "specified date" referred to in clause (ii) of
subsection (f) thereof to be a date specified in such letter, which shall not be
more than three business days prior to the Closing Date.
(h) At the Closing Date, the Agent shall receive a letter from RP
Financial, L.C., dated the Closing Date and addressed to the Agent, (i)
confirming that said firm is independent of the Constituent Entities and is
experienced and expert in the area of corporate appraisals within the meaning of
the Conversion Regulations, (ii) stating in effect that the Appraisal prepared
by such firm complies in all material respects with the applicable requirements
of the Conversion Regulations, and (iii) further stating that its opinion of the
aggregate pro forma market value of the Company and the Savings Bank expressed
in the appraisal as most recently updated, remains in effect.
(i) The Constituent Entities shall not have sustained since the date of the
latest audited financial statements included in the Prospectus any material loss
or interference with their businesses from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor dispute or
court or governmental action, order or decree, otherwise than as set forth or
contemplated in the Registration Statement and Prospectus.
(j) At or prior to the Closing Date, the Agent shall receive: (i) a copy of
the letters from the OTS approving the Conversion Application and the Holding
Company Application and authorizing the use of the Prospectus; (ii) a copy of
the order from the Commission declaring the Registration Statement effective;
(iii) a certificate from the OTS evidencing the existence of the Savings Bank;
(iv) a certificate from the OTS evidencing the existence of the MHC; (v) a
certificate of good standing from the State of Delaware evidencing the good
standing of the Company; (vi) a certificate from the FDIC evidencing the Savings
Bank's insurance of accounts; (vii) a certificate of the FHLB-Des Moines
evidencing the Savings Bank's membership therein, and (viii) any other documents
that the Agent shall reasonably request.
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(k) Subsequent to the date hereof, there shall not have occurred any of the
following: (i) a suspension or limitation in trading in securities generally on
the New York Stock Exchange or in the over-the-counter market, or quotations
halted generally on The Nasdaq Stock Market, or minimum or maximum prices for
trading have been fixed, or maximum ranges for prices for securities have been
required by either of such exchanges or The Nasdaq Stock Market or by order of
the Commission or any other governmental authority; (ii) a general moratorium on
the operations of commercial banks, Missouri or federal savings and loan
associations or a general moratorium on the withdrawal of deposits from
commercial banks, Missouri or federal savings and loan associations declared by
federal or state authorities; (iii) the engagement by the United States in
hostilities which have resulted in the declaration, on or after the date hereof,
of a national emergency or war; or (iv) a material decline in the price of
equity or debt securities in the effect of any of items (i) through (iii) above
in the Agent's reasonable judgment, makes it impracticable or inadvisable to
proceed with the Offering or the delivery of the Shares on the terms and in the
manner contemplated in the Registration Statement and Prospectus.
SECTION 8. INDEMNIFICATION.
---------------
(a) The Constituent Entities jointly and severally agree to indemnify and
hold harmless the Agent, its officers, directors, agents, servants and employees
and each person, if any, who controls the Agent within the meaning of Section 15
of the 1933 Act or Section 20(a) of the 1934 Act, against any and all loss,
liability, claim, damage or expense whatsoever (including but not limited to
settlement expenses), joint or several, that the Agent or any of them may suffer
or to which the Agent and any such persons may become subject under all
applicable federal or state laws or otherwise, and to promptly reimburse the
Agent and any such persons upon written demand for any expenses (including
reasonable fees and disbursements of counsel) incurred by the Agent or any of
them in connection with investigating, preparing to defend or defending any
actions, proceedings or claims (whether commenced or threatened) to the extent
such losses, claims, damages, liabilities or actions: (i) arise out of or are
related to the Conversion or any action taken by the Agent where acting as agent
of the Constituent Entities, including without limitation the denial or
reduction of a subscription or order to purchase Common Stock based upon the
deposit records of the Savings Bank or otherwise; (ii) arise out of or are based
upon any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement (or any amendment or supplement
thereto), Prospectus (or any amendment or supplement thereto), the Conversion
Application (or any amendment or supplement thereto), the Holding Company
Application (or any amendment or supplement thereto), or any blue sky
application or other instrument or document executed by any of the Constituent
Entities or based upon written information supplied by any of the Constituent
Entities filed in any state or jurisdiction to register or qualify any or all of
the Shares or to claim an exemption therefrom, or provided to any state or
jurisdiction to exempt the Company as a broker-dealer or its officers, directors
and employees as broker-dealers or agents, under the securities laws thereof
(collectively, the "Blue Sky Application"), or any application or other
document, advertisement, oral statement or communication ("Sales Information")
prepared, made or executed by or on behalf of any of the Constituent Entities
based upon written or oral
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information furnished by or on behalf of the Company or the Savings Bank,
whether or not filed in any jurisdiction, in order to qualify or register the
Shares or to claim an exemption therefrom under the securities laws thereof;
(iii) arise out of or based upon the omission or alleged omission to state in
any of the foregoing documents or information, a material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading; or (iv) arise from any
theory of liability whatsoever relating to or arising from or based upon the
Registration Statement (or any amendment or supplement thereto), Prospectus (or
any amendment or supplement thereto), the Conversion Application (or any
amendment or supplement thereto), the Holding Company Application (or any
amendment or supplement thereto), any Blue Sky Application or Sales Information
or other documentation distributed in connection with the Conversion; provided,
however, that no indemnification is required under this paragraph (a) to the
extent such losses, claims, damages, liabilities or actions arise out of or are
based upon any untrue material statement or alleged untrue material statements
in, or material omission or alleged material omission from, the Registration
Statement (or any amendment or supplement thereto), Prospectus (or any amendment
or supplement thereto), the Conversion Application (or any amendment or
supplement thereto), the Holding Company Application (or any amendment or
supplement thereto), any Blue Sky Application or Sales Information made in
reliance upon and in conformity with information furnished in writing to the
Constituent Entities by the Agent regarding the Agent; and provided further,
however, that the Constituent Entities shall not be liable under the foregoing
indemnification provision to the extent that any loss, claim, damage, liability
or action is found in a final judgment by a court of competent jurisdiction to
have resulted from the Agent's bad faith or gross negligence.
(b) The Agent agrees to indemnify and hold harmless the Constituent
Entities, their directors and officers and each person, if any, who controls any
of the Constituent Entities within the meaning of Section 15 of the 1933 Act or
Section 20(a) of the 1934 Act against any and all loss, liability, claim, damage
or expense whatsoever (including but not limited to settlement expenses), joint
or several, which they, or any of them, may suffer or to which they, or any of
them may become subject under all applicable federal and state laws or
otherwise, and to promptly reimburse the Constituent Entities and any such
persons upon written demand for any expenses (including reasonable fees and
disbursements of counsel) incurred by them, or any of them, in connection with
investigating, preparing to defend or defending any actions, proceedings or
claims (whether commenced or threatened) to the extent such losses, claims,
damages, liabilities or actions arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement (or any amendment or supplement thereto), the Conversion
Application (or any amendment or supplement thereto) or the Prospectus (or any
amendment or supplement thereto), or are based upon the omission or alleged
omission to state in any of the foregoing documents a material fact required to
be stated therein or necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading; provided, however,
that the Agent's obligations under this Section 8(b) shall exist only if and
only to the extent (i) that such untrue statement or alleged untrue statement
was made in, or such material fact or alleged material fact was omitted from,
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the Registration Statement (or any amendment or supplement thereto), the
Prospectus (or any amendment or supplement thereto) or the Conversion
Application (or any amendment or supplement thereto), and Blue Sky Application
or Sales Information in reliance upon and in conformity with information
furnished in writing to the Constituent Entities by the Agent regarding the
Agent.
(c) Each indemnified party shall give prompt written notice to each
indemnifying party of any action, proceeding, claim (whether commenced or
threatened), or suit instituted against it in respect of which indemnity may be
sought hereunder, but failure to so notify an indemnifying party shall not
relieve it from any liability which it may have on account of this Section 8 or
otherwise. An indemnifying party may participate at its own expense in the
defense of such action. In addition, if it so elects within a reasonable time
after receipt of such notice, an indemnifying party, jointly with any other
indemnifying parties receiving such notice, may assume defense of such action
with counsel chosen by it and approved by the indemnified parties that are
defendants in such action, unless such indemnified parties reasonably object to
such assumption on the ground that there may be legal defenses available to them
that are different from or in addition to those available to such indemnifying
party. If an indemnifying party assumes the defense of such action, the
indemnifying parties shall not be liable for any fees and expenses of counsel
for the indemnified parties incurred thereafter in connection with such action,
proceeding or claim, other than reasonable costs of investigation. In no event
shall the indemnifying parties be liable for the fees and expenses of more than
one separate firm of attorneys (and any special counsel that said firm may
retain) for each indemnified party in connection with any one action, proceeding
or claim or separate but similar or related actions, proceedings or claims in
the same jurisdiction arising out of the same general allegations or
circumstances.
(d) The agreements in this Section 8 and in Section 9 hereof and the
representations and warranties of the Constituent Entities set forth in this
Agreement shall remain operative and in full force and effect regardless of: (i)
any investigation made by or on behalf of the Agent or their officers, directors
or controlling persons, agents or employees or by or on behalf of the Company or
the Savings Bank or any officers, directors or controlling persons, agents or
employees of any of the Constituent Entities; (ii) delivery of and payment
hereunder for the Shares; or (iii) any termination of this Agreement.
SECTION 9. CONTRIBUTION. In order to provide for just and equitable
------------
contribution in circumstances in which the indemnification provided for in
Section 8 is due in accordance with its terms but is for any reason held by a
court to be unavailable from the Constituent Entities or the Agent, as the case
may be, the Constituent Entities and the Agent shall contribute to the aggregate
losses, claims, damages and liabilities (including any investigation, legal and
other expenses incurred in connection with, and any amount paid in settlement
of, any action, suit or proceeding of any claims asserted, but after deducting
any contribution received by the Constituent Entities or the Agent from persons
other than the other party thereto, who may also be liable for contribution) in
such proportion so that the Agent is responsible for that portion
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represented by the percentage that the fees and expenses paid to the Agent
pursuant to Section 2 of this Agreement bears to the gross proceeds received by
the Company from the sale of the Shares in the Offering, and the Constituent
Entities shall be responsible for the balance. If, however, the allocation
provided above is not permitted by applicable law or if the indemnified party
failed to give the notice required under Section 8 above, then each indemnifying
party shall contribute to such amount paid or payable by such indemnified party
in such proportion as is appropriate to reflect not only such relative fault of
the Constituent Entities, on the one hand, and the Agent, on the other, in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities (or actions, proceedings or claims in respect
thereto), but also the relative benefits received by the Constituent Entities,
on the one hand, and the Agent, on the other, from the Offering (before
deducting expenses). The relative benefits received by the Constituent
Entities, on the one hand, and the Agent, on the other, shall be deemed to be in
the same proportion as the gross proceeds from the Offering received by the
Company bear to the total fees and expenses received by the Agent. The relative
fault shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission alleged
omission to state a material fact relates to information supplied by the
Constituent Entities, on the one hand, or the Agent, on the other, and the
parties' relative intent, good faith, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Constituent
Entities and the Agent agree that it would not be just and equitable if
contribution pursuant to this Section 9 were determined by pro-rata allocation
or by any other method of allocation which does not take into account the
equitable considerations referred to above in this Section 9. The amount paid or
payable by an indemnified party as a result of the losses, claims, damages or
liabilities (or actions, proceedings or claims in respect thereof) referred to
above in this Section 9 shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action, proceeding or claim. It is expressly agreed that
the Agent shall not be required to contribute any amount which in the aggregate
exceeds the amount paid (excluding reimbursable expenses) to the Agent under
this Agreement. It is understood that the above stated limitation on the
Agent's liability is essential to the Agent and that the Agent would not have
entered into this Agreement if such limitation had not been agreed to by the
parties to this Agreement. No person found guilty of any fraudulent
misrepresentation (within the meaning of Section 11(f) of the ▇▇▇▇ ▇▇▇) shall be
entitled to contribution from any person who was not found guilty of such
fraudulent misrepresentation. The obligations of the Constituent Entities under
this Section 9 and under Section 8 shall be in addition to any liability which
the Constituent Entities may otherwise have. For purposes of this Section 9,
each of the Agent's or any of the Constituent Entities' officers and directors
and each person, if any, who controls the Agent or any of the Constituent
Entities within the meaning of the 1933 Act and the 1934 Act shall have the same
rights to contribution as the Agent or the Constituent Entities. Any party
entitled to contribution, promptly after receipt of notice of commencement of
any action, suit, claim or proceeding against such party in respect of which a
claim for contribution may be made against another party under this Section 9,
shall notify such party from whom contribution may be sought, but the omission
to so notify such party shall not relieve the party from whom contribution may
be sought from any other obligation it may have hereunder or
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otherwise than under this Section 9. To the extent applicable, the Constituent
Entities' and the Agent's obligations under this Section 9 are subject to and
limited by public policy and the provisions of applicable law.
SECTION 10. SURVIVAL OF AGREEMENTS, REPRESENTATIONS AND INDEMNITIES. The
-------------------------------------------------------
respective indemnities of the Constituent Entities and the Agent, and the
representations and warranties and other statements of the Constituent Entities
and the Agent 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 the Agent, the
Constituent Entities or any controlling person referred to in Section 8 hereof,
and shall survive the issuance of the Shares, and any legal representative,
successor or assign of the Agent, any of the Constituent Entities and any such
controlling person shall be entitled to the benefit of the respective
agreements, indemnities, warranties and representations.
SECTION 11. TERMINATION. (a) The Agent may terminate its obligations under
-----------
this Agreement by giving the notice indicated below in subsection (b) at any
time after this Agreement becomes effective as follows:
(i) In the event the Company fails to sell the required minimum
number of Shares by the End Date, and in accordance with the provisions of
the Plan or as required by the Conversion Regulations, and applicable law,
this Agreement shall terminate upon refund by the Savings Bank to each
person who has subscribed for or ordered any of the Shares the full amount
which it may have received from such person, together with interest as
provided in the Prospectus, and no party to this Agreement shall have any
obligation to the other hereunder, except as set forth in Sections 2, 8, 9
and 10 hereof.
(ii) If any of the conditions specified in Section 7 shall not have
been fulfilled when and as required by this Agreement unless waived in
writing, or by the Closing Date, this Agreement and all of the Agent's
obligations hereunder may be canceled by the Agent by notifying the Company
and the Savings Bank of such cancellation as provided in Section 12 hereof
in writing or at any time at or prior to the Closing Date, and any such
cancellation shall be without liability of any party to any other party
except as otherwise provided in Sections 2, 8, 9 and 10 hereof.
(iii) In the event any of the Constituent Entities is in material
breach of the representation and warranties or covenants contained in
Sections 3 and 5 and such breach has not been cured after the Agent has
provided the Company and the Savings Bank with notice of such breach.
(b) If the Agent elects to terminate this Agreement with respect to it as
provided in this Section 11, the Company and the Savings Bank shall be notified
promptly by telephone, confirmed by letter.
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(c) The Constituent Entities may terminate this Agreement with respect to
the Agent in the event the Agent is in material breach of the representations
and warranties or covenants contained in Sections 4 and 6 and such breach has
not been cured after the Company and the Savings Bank have provided the Agent
with notice of such breach.
(d) This Agreement may also be terminated by mutual written consent of the
parties hereto.
SECTION 12. NOTICES. Except as herein otherwise specifically provided, in
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order to be effective all notices or other communications provided for hereunder
shall be in writing and mailed or delivered by courier as follows: if to the
Agent, to ▇▇▇▇▇▇▇ ▇▇▇▇ & Company, ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇,
Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ (with a copy to Armstrong, Teasdale, Schlafly &
▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇.
▇▇▇▇▇▇, ▇▇., Esq.); or if to any one or more of the Constituent Entities, to the
Company and the Savings Bank at ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, President (with a copy to Breyer & Aguggia,
Suite 470 East, ▇▇▇▇ ▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇, Attention: ▇▇▇▇ ▇.
▇▇▇▇▇▇▇, Esq.). Notices shall be effective upon delivery to the recipient's
address as specified herein. Notices may also be given by facsimile
transmission to a fax number provided by a party for such purpose, and shall be
deemed delivered upon electronic confirmation to the sender of a successful
transmission.
SECTION 13. PARTIES. The Constituent Entities shall be entitled to act
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and rely on any request, notice, consent, waiver or agreement given on behalf of
the Agent when the same shall have been given by the undersigned. The Agent
shall be entitled to act and rely on any request, notice, consent, waiver or
agreement purportedly given on behalf of the Constituent Entities when the same
shall have been given by the undersigned or any other officer of the Constituent
Entities. This Agreement shall inure solely to the benefit of, and shall be
binding upon, the Agent, the Constituent Entities, 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.
SECTION 14. ENTIRE AGREEMENT. It is understood and agreed that this
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Agreement is the exclusive agreement among the paries hereto, and supersedes any
prior agreement among the parties (except for specific references herein to the
Letter Agreement) and may not be varied except in writing signed by all the
parties.
SECTION 15. PARTIAL INVALIDITY. In the event that any term, provision or
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covenant herein or the application thereof to any circumstance or situation
shall be invalid or unenforceable, in whole or in part, the remainder hereof and
the application of said term, provision or covenant to any other circumstances
or situation shall not be affected thereby, and each term, provision or covenant
herein shall be valid and enforceable to the full extent permitted by law.
▇▇▇▇▇▇▇ ▇▇▇▇ & Company
Page 33
________________, 1998
SECTION 16. CONSTRUCTION. This Agreement shall be construed in accordance
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with the laws of the State of New York, except to the extent that federal law
shall apply.
SECTION 17. COUNTERPARTS. This Agreement may be executed in separate
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counterparts, each of which so executed and delivered shall be an original, but
all of which together shall constitute but one and the same instrument.
If the foregoing correctly sets forth the arrangement among the Constituent
Entities and the Agent, please indicate acceptance thereof in the space provided
below for that purpose, whereupon this letter and the Agent's acceptance shall
constitute a binding agreement among the parties.
Very truly yours,
PULASKI BANCSHARES M.H.C. PULASKI BANK, A FEDERAL
SAVINGS BANK
By: By:
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
President President
PULASKI FINANCIAL CORP.
By:
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
President
Accepted as of the date first above written:
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, INC.
Through Its Division,
▇▇▇▇▇▇▇ ▇▇▇▇ & COMPANY
By:
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▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Executive Vice President
