CAPITOL FEDERAL FINANCIAL
__________ Shares
COMMON STOCK
(Par Value $.0l Per Share)
Subscription Price $10.00 Per Share
AGENCY AGREEMENT
___________ __, 1999
Xxxxxxx Xxxx & Company,
a Division of Xxxxx, Xxxxxxxx & Xxxxx, Inc.
000 Xxxxxxxxx Xxxxxx
Xxxxxx, Xxxx 00000
Ladies and Gentlemen:
Capitol Federal Financial, a federal corporation (the "Company"), Capitol
Federal Savings Bank MHC, a federally chartered mutual holding company ("MHC")
and Capitol Federal Savings and Loan Association, a federally chartered mutual
savings and loan association (the "Bank") (reference to the "Bank" includes the
Bank in the mutual or stock form, as indicated by the context) with its deposit
accounts insured by the Savings Association Insurance Fund ("SAIF") administered
by the Federal Deposit Insurance Corporation ("FDIC"), hereby confirm, jointly
and severally, their agreement with Xxxxxxx Xxxx & Company, a Division of Xxxxx,
Xxxxxxxx & Xxxxx, Inc. ("Xxxx" or "the Agent"), as follows:
Section 1. The Offering. The Bank, in accordance with its Plan of
Reorganization and Stock Issuance Plan adopted by its Board of Directors and
subsequently amended (the "Plan"), intends to convert from a federally chartered
mutual savings and loan association to a federally chartered stock savings bank,
and will issue all of its issued and outstanding capital stock to the Company.
In addition, pursuant to the Plan, the Company will offer and sell up
to_______________ shares of its common stock, par value, $.01 per share (the
"Shares" or "Common Stock"), in a subscription offering (the "Subscription
Offering") to (1) depositors of the Bank with account balances of $50.00 or more
as of June 30, 1997 ("Eligible Account Holders"), (2) the Capitol Federal
Financial Employee Stock Ownership Plan (the "ESOP"), (3) depositors of the Bank
with account balances of $50.00 or more as of December 31, 1998 ("Supplemental
Eligible Account Holders"),
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(4) depositors of the Bank as of the close of business on______________________
(other than Eligible Account Holders and Supplemental Eligible Account Holders)
("Other Members"), and (5) employees, officers and directors of the Bank. To the
extent Shares remain unsold in the Subscription Offering, the Company is
offering for sale in a community offering (the "Community Offering" and when
referred to together with the Subscription Offering, the "Subscription and
Community Offering"), the Shares not so subscribed for or ordered in the
Subscription Offering to members of the general public, with preference given to
natural persons residing in the counties in which the Bank has offices ("Other
Subscribers"), (all such offerees being referred to in the aggregate as
"Eligible Offerees"). It is anticipated that shares not subscribed for in the
Subscription and Community Offering will be offered to certain members of the
general public on a best efforts basis through a selected dealers arrangement
(the "Syndicated Community Offering") (the Subscription Offering, Community
Offering and Syndicated Community Offering are collectively referred to as the
"Offering"). It is acknowledged that the purchase of Shares in the Offering is
subject to the maximum and minimum purchase limitations as described in the Plan
and that the Company and the Bank may reject, in whole or in part, any orders
received in the Community Offering or Syndicated Community Offering.
Collectively, these transactions are referred to herein as the "Reorganization."
The Company will issue the Shares at a purchase price of $10.00 per share (the
"Purchase Price ").
In connection with the Reorganization and pursuant to the terms of the Plan
as described in the Prospectus (as hereinafter defined), immediately following
the consummation of the Reorganization, subject to the approval of the members
of Bank and compliance with certain conditions as may be imposed by regulatory
authorities, the Company will contribute newly issued Common Stock equal to 4%
of such Shares sold in the Reorganization to the Capitol Federal Foundation (the
"Foundation") such shares hereinafter being referred to as the ("Foundation
Shares"). In addition, the Company will make a cash contribution to the
Foundation equal to the value of the Common Stock contributed.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-1 (File No. 333- ) (the
"Registration Statement") containing a prospectus relating to the Offering for
the registration of the Shares and the Foundation Shares under the Securities
Act of 1933 (the "1933 Act"), and has filed such amendments thereof and such
amended prospectuses as may have been required to the date hereof. The term
"Registration Statement" shall include all exhibits thereto, as amended,
including post-effective amendments. The prospectus, as amended, on file with
the Commission at the time the Registration Statement initially became 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.
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In accordance with Title 12, Parts 575 and 563b of the Code of Federal
Regulations (the "MHC Regulations"), the Bank has filed with the Office of
Thrift Supervision (the "OTS") a Notice of Mutual Holding Company Reorganization
and Application for Approval of an Issuance by a Subsidiary of a Mutual Holding
Company (the "MHC Notice and MHC Application"), including the Prospectus and the
Reorganization Valuation Appraisal Report prepared by RP Financial, LC (the
"Appraisal") and has filed such amendments thereto as may have been required by
the OTS. The MHC Application has been approved by the OTS and the related
Prospectus has been authorized for use by the OTS. In addition, the Company has
filed with the OTS its application on Form H-(e)1 (the "Holding Company
Application") to acquire the Bank and to become a registered savings and loan
holding company under the Home Owners' Loan Act, as amended ("HOLA").
Section 2. Retention of Agent; Compensation; Sale and Delivery of the
Shares. Subject to the terms and conditions herein set forth, the Company and
the Bank have retained Xxxxxxx Xxxx & Company, a Division of Xxxxx, Xxxxxxxx &
Xxxxx, Inc. to consult with and to advise the Bank, the MHC and the Company, and
to assist the Company, on a best efforts basis, in the distribution of the
shares of Common Stock in the Offering. The services that Xxxx will provide
include, but are not limited to (i) training the employees of the Bank who will
perform certain ministerial functions in the Subscription and Community Offering
regarding the mechanics and regulatory requirements of the stock offering
process, (ii) managing the Stock Information Center by assisting interested
stock subscribers and by keeping records of all stock orders, (iii) preparing
marketing materials and (iv) assisting in the solicitation of proxies from the
Bank's members for use at the Special Meeting.
On the basis of the representations, warranties, and agreements herein
contained, but subject to the terms and conditions herein set forth, the Agent
accepts such appointment and agrees to consult with and advise the Company, the
MHC and the Bank as to the matters set forth in the letter agreement ("Letter
Agreement"), dated July 1, 1998 between the Bank and Xxxx (a copy of which is
attached hereto as Exhibit A). It is acknowledged by the Company, the MHC and
the Bank that the Agent shall not be required to take or purchase any Shares or
be obligated to take any action which is inconsistent with all applicable laws,
regulations, decisions or orders.
The obligations of the Agent pursuant to this Agreement (other than those
set forth in Sections 2(d), 8 and 9 hereof) shall terminate upon the completion
or termination or abandonment of the Plan by the Company or upon termination of
the Offering, but in no event later than the date (the "End Date") which is 45
days after the Closing Date (as hereinafter defined). All fees or expenses due
to the Agent but unpaid will be payable to the Agent 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 MHC, the
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 _________ Shares
within the period herein provided, this Agreement shall terminate and the
Company shall refund to any persons who have subscribed for any of the Shares,
the full amount which it may have received from them plus
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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 6, 8 and 9 hereof.
In the event the Offering is terminated, the Agent shall be reimbursed for
its actual accountable out-of-pocket expenses.
If all conditions precedent to the consummation of the Reorganization,
including, without limitation, the sale of all Shares required by the Plan to be
sold, are satisfied, the Company agrees to issue, or have issued, the Shares
sold in the Offering and to 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; provided, however, that no funds shall be released
to the Company until the conditions specified in Section 7 hereof shall have
been complied with to the reasonable satisfaction of the Agent and their
counsel. The release of Shares against payment therefor shall be made on a date
and at a place acceptable to the Company, the MHC, the 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:
(a) A management fee of $100,000, payable in four installments of $25,000
as of August 25, October 15, December 15 and February 15. Should the
Reorganization be 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 fees accruing through the stage at which the
termination occurred.
(b) A Success Fee of 1.25% of the aggregate Purchase Price of the shares
of Common Stock sold in the Subscription Offering and Community
Offering excluding shares purchased by the Bank's officers, directors,
or employees (or members of their immediate families) plus any ESOP,
tax-qualified or stock based compensation plans (except IRA's) or
similar plan created by the Bank for some or all of its directors or
employees. The success fee paid to Xxxx will be reduced by the amount
of the management fee.
(c) If any of the shares remain available after the Subscription and
Community Offerings, at the request of the Bank, Xxxx will seek to
form a syndicate of registered broker-dealers to assist in the sale of
such Common Stock on a best efforts basis, subject to the terms and
conditions set forth in the selected dealers agreement. Xxxx will
endeavor to distribute the Common Stock among dealers in a fashion
which best meets the distribution objectives of the Bank and the Plan
of Reorganization and Stock Issuance. Xxxx will be paid a fee not to
exceed 5.5% of the aggregate Purchase Price of the Shares sold by
them. Xxxx will pass onto
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selected broker-dealers, who assist in the syndicated community, 4% of
the gross underwriting discounts charged at such time. Fees with
respect to purchases affected with the assistance of a broker/dealer
other than Xxxx shall be transmitted by Xxxx to such broker/dealer.
The decision to utilize selected broker-dealers will be made by the
Bank upon consultation with Xxxx. In the event, with respect to any
purchases of Shares, fees are paid pursuant to this subparagraph 2(c),
such fees shall be in lieu of, and not in addition to, payment
pursuant to subparagraph 2(a) and 2(b).
(d) The Company, the MHC and the Bank have agreed to reimburse Xxxx for
its out-of-pocket expenses, and its legal fees and to indemnify Xxxx
against certain claims or liabilities, including certain liabilities
under the Securities Act, and will contribute to payments Xxxx may be
required to make in connection with any such claims or liabilities;
and the fees set forth under this Section 2.
Section 3. Prospectus; Offering. The Shares are to be initially offered in
the Offering at the Purchase Price as defined and set forth on the cover page of
the Prospectus.
Section 4. Representations and Warranties of the Company, the MHC and the
Bank. The Company, the MHC and the Bank jointly and severally represent and
warrant to and agree with the Agent as follows:
(a) The Registration Statement which was prepared by the Company, the MHC
and the Bank and filed with the Commission was declared effective by
the Commission on __________ __, 1999. At the time the Registration
Statement, including the Prospectus contained therein (including any
amendment or supplement), became effective, the Registration Statement
contained all statements that were required to be stated therein in
accordance with the 1933 Act and the 1933 Act Regulations, complied 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 (including any amendment or supplement
thereto), and any information regarding the Company or the MHC or the
Bank or the Foundation contained in Sales Information (as such term is
defined in Section 8 hereof) authorized by the Company, the MHC or the
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 and at the Closing Date referred to in
Section 2, the Registration Statement, including the Prospectus
contained therein (including any amendment or supplement thereto), and
any information regarding the Company, the MHC or the Bank contained
in Sales Information (as such term is defined in Section 8 hereof)
authorized by the Company, the MHC or the
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Bank for use in connection with the Offering will contain all
statements that are required to be stated therein in accordance with
the 1933 Act and the 1933 Act Regulations and will not contain an
untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading; provided,
however, that the representations and warranties in this Section 4(a)
shall not apply to statements or omissions made in reliance upon and
in conformity with written information furnished to the Company, the
MHC or the Bank by the Agent or its counsel expressly regarding the
Agent for use in the Prospectus under the caption "The Reorganization
and Stock Issuance-Marketing Arrangements" or statements in or
omissions from any Sales Information or information filed pursuant to
state securities or blue sky laws or regulations regarding the Agent.
(b) The MHC Notice and MHC Applications which were prepared by the
Company, the MHC and the Bank and filed with the OTS were approved by
the OTS on ___________ ___, 1998, including the waiver of certain
provisions of the MHC Regulations specified in such approval with
respect to the establishment of and contribution to the Foundation,
and the related Prospectus has been authorized for use by the OTS. At
the time of the approval of the MHC Application, including the
Prospectus (including any amendment or supplement thereto), by the OTS
and at all times subsequent thereto until the Closing Date, the MHC
Application, including the Prospectus (including any amendment or
supplement thereto), will comply in all material respects with the MHC
Regulations, except to the extent waived in writing by the OTS. The
MHC Notice and MHC Application, including the Prospectus (including
any amendment or supplement thereto), do not include 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 4(b) shall not apply to statements or omissions made in
reliance upon and in conformity with written information furnished to
the Company, the MHC or the Bank by the Agent or its counsel expressly
regarding the Agent for use in the Prospectus contained in the MHC
Notice and MHC Application under the caption "The Reorganization and
Stock Issuance-Marketing Arrangements" or statements in or omissions
from any sales information. The Holding Company Application for
approval pursuant to the HOLA and the regulations promulgated
thereunder (the "Control Act Regulations"), has been prepared by the
Bank, the MHC and the Company in material conformity with the
requirements of the Control Act Regulations and has been filed with
the OTS. A conformed copy of the Holding Company Application has been
delivered to the Agent.
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(c) The Company has filed with the OTS the Holding Company Application. As
of the Closing Date, approval of the Company's acquisition of the Bank
will have been obtained from the OTS.
(d) No order has been issued by the OTS or the FDIC (hereinafter any
reference to the FDIC shall include the SAIF) preventing or suspending
the use of the Prospectus, and no action by or before any such
government entity to revoke any approval, authorization or order of
effectiveness related to the Reorganization is, to the best knowledge
of the Company, the MHC or the Bank, pending or threatened.
(e) As of the Closing Date, the MHC will be duly organized and will be
validly existing as a federally chartered mutual holding company under
the laws of the United States, duly authorized to conduct its business
and own its property as described in the Registration Statement and
the Prospectus; as of the Closing Date, the MHC will have obtained all
licenses, permits and other governmental authorizations required for
the conduct of its business except those that individually or in the
aggregate would not materially adversely affect the financial
condition, earnings, capital, assets or properties of the Company, MHC
and Bank taken as a whole; as of the Closing Date, all such licenses,
permits and governmental authorizations will be in full force and
effect and the MHC will be in compliance therewith in all material
respects; as of the Closing Date, the MHC will be 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 Company, MHC
and Bank considered as one enterprise.
(f) The MHC does not own any equity securities or any equity interest in
any business enterprise except as described in the Prospectus.
(g) The MHC is not authorized to issue any shares of capital stock.
(h) At the Closing Date, the Plan will have been adopted by the Boards of
Directors of the Company, the MHC and the Bank and approved by the
members of the Bank, and the offer and sale of the Shares and all
actions in connection with the contribution to the Foundation will
have been conducted in all material respects in accordance with the
Plan, the MHC Regulations, and all other applicable laws, regulations,
decisions and orders, including all terms, conditions, requirements
and provisions precedent to the Reorganization imposed upon the
Company, the MHC or the Bank by the OTS, the Commission, or any other
regulatory authority and in the manner described in the Prospectus. No
person has sought to obtain review of the
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final action of the OTS in approving the Plan or in approving the MHC
Applications, the MHC Notice or the Holding Company Application
pursuant to the HOLA, or any other statute or regulation.
(i) The Bank has been organized and is a validly existing federally
chartered savings and loan association in mutual form of organization
and upon the Reorganization will become a duly organized and validly
existing federally chartered savings bank in capital stock form of
organization, in both instances duly authorized to conduct its
business and own its property as described in the Registration
Statement and the Prospectus; the Bank has obtained all material
licenses, permits and other governmental authorizations currently
required for the conduct of its business; all such licenses, permits
and governmental authorizations are in full force and effect, and the
Bank is in all material respects complying with all laws, rules,
regulations and orders applicable to the operation of its business;
the Bank is existing under the laws of the federal government and is
duly qualified as a foreign corporation to transact business and is in
good standing in each jurisdiction in which its ownership of property
or leasing of property or the conduct of its business requires such
qualification, unless the failure to be so qualified in one or more of
such jurisdictions would not have a material adverse effect on the
condition, financial or otherwise, or the business, operations or
income of the Bank. The Bank does not own equity securities or any
equity interest in any other business enterprise except as described
in the Prospectus or as would not be material to the operations of the
Bank. Upon completion of the sale by the Company of the Shares
contemplated by the Prospectus, (i) the Bank will be converted
pursuant to the Plan to a federally chartered stock savings bank, (ii)
all of the issued and outstanding capital stock of the Bank will be
owned by the Company, (iii) the Company will have no direct
subsidiaries other than the Bank, and (iv) the Company will be a
majority-owned subsidiary of the MHC. The Reorganization will have
been effected in all material respects in accordance with all
applicable statutes, regulations, decisions and orders; and, except
with respect to the filing of certain post-sale, post-Reorganization
reports, and documents in compliance with the 1933 Act Regulations,
the OTS' resolutions or letters of approval, all terms, conditions,
requirements and provisions with respect to the Reorganization imposed
by the Commission, the OTS, and the FDIC, if any, will have been
complied with by the Company, the MHC and the Bank in all material
respects or appropriate waivers will have been obtained and all
material notice and waiting periods will have been satisfied, waived
or elapsed.
(j) The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the ___________ with
corporate power and authority to own, lease and operate its properties
and to
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conduct its business as described in the Registration Statement and
the Prospectus, and at the Closing Date the Company will be qualified
to do business as a foreign corporation in each jurisdiction in which
the conduct of its business requires such qualification, except where
the failure to so qualify would not have a material adverse effect on
the condition, financial or otherwise, or the business, operations or
income of the Company. The Company has obtained all material licenses,
permits and other governmental authorizations currently required for
the conduct of its business; all such licenses, permits and
governmental authorizations are in full force and effect, and the
Company is in all material respects complying with all laws, rules,
regulations and orders applicable to the operation of its business.
(k) The Bank has one active subsidiary, Capitol Funds, Inc. (the
"Subsidiary"). The Subsidiary has been duly incorporated and is
validly existing as a corporation in good standing under the laws of
the ___________ 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, and at the Closing Date the
Subsidiary will be qualified to do business as a foreign corporation
in each jurisdiction in which the conduct of its business requires
such qualification, except where the failure to so qualify would not
have a material adverse effect on the condition, financial or
otherwise, or the business, operations or income of the Subsidiary.
The Subsidiary has obtained all material licenses, permits and other
governmental authorizations currently required for the conduct of its
business; all such licenses, permits and governmental authorizations
are in full force and effect, and the Subsidiary is in all material
respects complying with all laws, rules, regulations and orders
applicable to the operation of its business.
(l) The Bank is a member of the Federal Home Loan Bank of Topeka ("FHLB-
Topeka"). The deposit accounts of the Bank are insured by the FDIC up
to the applicable limits; and no proceedings for the termination or
revocation of such insurance are pending or, to the best knowledge of
the Company or the Bank, threatened. Upon consummation of the
Reorganization, the liquidation account for the benefit of Eligible
Account Holders and Supplemental Eligible Account Holders will be duly
established in accordance with the requirements of the MHC
Regulations.
(m) The Company, the MHC and the Bank have good and marketable title to
all real property and good title to all other assets material to the
business of the Company, the MHC and the Bank, taken as a whole, 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 such as are described in the
Registration Statement and Prospectus, or
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are not material to the business of the Company, the MHC and the Bank,
taken as a whole; and all of the leases and subleases material to the
business of the Company, the MHC and the Bank, taken as a whole, under
which the Company, the MHC or the Bank hold properties, including
those described in the Registration Statement and Prospectus, are in
full force and effect.
(n) The Company and the Bank have received an opinion of their special
counsel, Silver Xxxxxxxx & Xxxx, L.L.P. with respect to the federal
income tax consequences of the Reorganization and the opinions of
Xxxxxxxx & Touche L.L.P. with respect to Kansas income tax
consequences of the Reorganization and the federal income tax
consequences of the proposed establishment of, and contribution to,
the Foundation; all material aspects of the opinions of Silver
Xxxxxxxx & Xxxx, L.L.P. and Deloitte & Xxxxxx L.L.P. are accurately
summarized in the Registration Statement and will be accurately
summarized in the Prospectus; and further represent and warrant that
the facts upon which such opinions are based are truthful, accurate
and complete.
(o) The Company, the MHC and the Bank have all such power, authority,
authorizations, approvals and orders as may be required to enter into
this Agreement, to carry out the provisions and conditions hereof and
to issue and sell the Shares to be sold by the Company, and to issue
and contribute the Foundation Shares and any related cash
contribution, as provided herein and as described in the Prospectus
except approval or confirmation by the OTS of the final appraisal of
the Bank. The consummation of the Reorganization, 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 Company, the MHC
and the Bank and this Agreement has been validly executed and
delivered by the Company, the MHC and the Bank and is the valid, legal
and binding agreement of the Company, the MHC and the Bank enforceable
in accordance with its terms (except as the enforceability thereof may
be limited by bankruptcy, insolvency, moratorium, reorganization or
similar laws relating to or affecting the enforcement of creditors'
rights generally or the rights of creditors of savings and loan
holding companies, the accounts of whose subsidiaries are insured by
the FDIC or by general equity principles regardless of whether such
enforceability is considered in a proceeding in equity or at law, and
except to the extent if any, that the provisions of Sections 8 and 9
hereof may be unenforceable as against public policy).
(p) The Company, the MHC and the Bank are not in violation of any
directive received from the OTS, the FDIC, or any other agency to make
any material
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change in the method of conducting their businesses so as to comply in
all material respects with all applicable statutes and regulations
(including, without limitation, regulations, decisions, directives and
orders of the OTS, and the FDIC) and, except as may be set forth in
the Registration Statement and the Prospectus, there is no suit or
proceeding or charge or action before or by any court, regulatory
authority or governmental agency or body, pending or, to the knowledge
of the Company, the MHC or the Bank, threatened, which might
materially and adversely affect the Reorganization, the performance of
this Agreement or the consummation of the transactions contemplated in
the Plan and as described in the Registration Statement and the
Prospectus or which might result in any material adverse change in the
condition (financial or otherwise), earnings, capital or properties of
the Company, the MHC and the Bank, or which would materially affect
their properties and assets.
(q) The financial statements, schedules and notes related thereto which
are included in the Prospectus fairly present the consolidated balance
sheet, income statement, statement of changes in equity and cash flows
of the Bank at the respective dates indicated and for the respective
periods covered thereby and comply as to form in all material respects
with the applicable accounting requirements of Title 12 of the Code of
Federal Regulations and generally accepted accounting principles
(including those requiring the recording of certain assets at their
current market value). Such financial statements, schedules and notes
related thereto have been prepared in accordance with generally
accepted accounting principles consistently applied through the
periods involved, present fairly in all material respects the
information required to be stated therein and are consistent with the
most recent financial statements and other reports filed by the Bank
with the OTS. 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 Bank included in the
Prospectus, and as to the pro forma adjustments, the adjustments
described therein have been properly applied on the basis described
therein.
(r) Since the respective dates as of which information is given in the
Registration Statement including the Prospectus: (i) there has not
been any material adverse change, financial or otherwise, in the
condition of the Company, the MHC or the Bank and its subsidiaries
considered as one enterprise, or in the earnings, capital or
properties of the Company, the MHC or the Bank, whether or not arising
in the ordinary course of business; (ii) there has not been any
material increase in the long-term debt of the Bank or in the
principal amount of the Bank's assets which are classified by the Bank
as
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substandard, doubtful or loss or in loans past due 90 days or more or
real estate acquired by foreclosure, by deed-in-lieu of foreclosure or
deemed in-substance foreclosure or any material decrease in retained
earnings or total assets of the Bank nor has the Company, the MHC or
the Bank issued any securities (other than in connection with the
incorporation of the Company) or incurred any liability or obligation
for borrowing other than in the ordinary course of business; (iii)
there have not been any material transactions entered into by the
Company, the MHC or the Bank; (iv) there has not been any material
adverse change in the aggregate dollar amount of the Bank's deposits
or its consolidated net worth; (v) there has been no material adverse
change in the Company's, the MHC's or the Bank's relationship with its
insurance carriers, including, without limitation, cancellation or
other termination of the Company's, the MHC's or the Bank's fidelity
bond or any other type of insurance coverage; (vi) except as disclosed
in the Prospectus there has been no material change in management of
the Company, the MHC or the Bank, neither of which has any material
undisclosed liability of any kind, contingent or otherwise; (vii) the
Company, the MHC or the Bank has not sustained any material loss or
interference with its respective business or properties from fire,
flood, windstorm, earthquake, accident or other calamity, whether or
not covered by insurance; (viii) the Company, the MHC or the Bank is
not in default in the payment of principal or interest on any
outstanding debt obligations; (ix) the capitalization, liabilities,
assets, properties and business of the Company, the MHC and the Bank
conform in all material respects to the descriptions thereof contained
in the Prospectus; and (x) neither the Company, the MHC nor the Bank
has any material contingent liabilities, except as set forth in the
Prospectus. All documents made available to or delivered or to be made
available to or delivered by the Bank, the MHC or the Company or their
representatives in connection with the issuance and sale of the
Shares, including records of account holders, depositors and other
members of the Bank, or in connection with the Agent's exercise of due
diligence, except for those documents which were prepared by parties
other than the Bank, the MHC, the Company or their representatives, to
the best knowledge of the Bank, the MHC and the Company, were on the
dates on which they were delivered, or will be on the dates on which
they are to be delivered, true, complete and correct in all material
respects.
(s) As of the date hereof and as of the Closing Date, neither the Company,
the MHC nor the Bank is (i) in violation of its articles of
incorporation or charter or bylaws, respectively (and the Bank will
not be in violation of its charter or bylaws in capital stock form
upon consummation of the Reorganization), or (ii) in default in the
performance or observance of any material obligation, agreement,
covenant, or condition contained in any material contract, lease,
12
loan agreement, indenture or other instrument to which it is a party
or by which it or any of its property may be bound; the consummation
of the Reorganization, 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 Company, the MHC and the Bank and this
Agreement has been validly executed and delivered by the Company, the
MHC and the Bank and is a valid, legal and binding Agreement of the
Company, the MHC and the Bank enforceable in accordance with its
terms, except as the enforceability thereof may be limited by (i)
bankruptcy, insolvency, reorganization, moratorium, 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 federal savings institutions, (ii) general
equitable principles, (iii) laws relating to the safety and soundness
of insured depository institutions, and (iv) applicable law or public
policy with respect to the indemnification and/or contribution
provisions contained herein, and except that no representation or
warranty need be made as to the effect or availability of equitable
remedies or injunctive relief (regardless of whether such
enforceability is considered in a proceeding in equity or at law). The
consummation of the transactions herein contemplated will not: (i)
conflict with or constitute a breach of, or default under, or result
in the creation of any material lien, charge or encumbrance (with the
exception of the liquidation account established in the
Reorganization) upon any of the assets of the Company, the MHC or the
Bank pursuant to the articles of incorporation of the Company or the
charter and bylaws of the Bank and the MHC (in either mutual or
capital stock form), or any material contract, lease or other
instrument to which the Company, the MHC or the Bank has a beneficial
interest, or any applicable law, rule, regulation or order; (ii)
violate any authorization, approval, judgement, decree, order,
statute, rule or regulation applicable to the Company, the MHC or the
Bank, except for such violations which would not have a material
adverse effect on the financial condition and results of operations of
the Company, the MHC and the Bank on a consolidated basis; or (iii)
with the exception of the liquidation account established in the
Reorganization, result in the creation of any material lien, charge or
encumbrance upon any property of the Company, the MHC or the Bank.
(t) 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 the
Company, the MHC or the Bank 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 the Company, the MHC or the Bank is a party or by
which any of them or any
13
of their property is bound or affected, except such defaults which
would not have a material adverse affect on the financial condition or
results of operations of the Company, the MHC and the Bank on a
consolidated basis; 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 Company, the MHC and the Bank, threatened any action
or proceeding wherein the Company, the MHC or the Bank would or might
be alleged to be in default thereunder.
(u) Upon consummation of the Reorganization, 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 have been or will be issued and outstanding prior to the
Closing Date; the Shares and the Foundation Shares will have been duly
and validly authorized for issuance and, when issued and delivered by
the Company pursuant to the Plan against payment of the consideration
calculated as set forth in the Plan and in the Prospectus, will be
duly and validly issued, fully paid and non-assessable, except for
shares purchased by the ESOP with funds borrowed from the Company to
the extent payment therefor in cash has not been received by the
Company; except to the extent that subscription rights and priorities
pursuant thereto exist pursuant to the Plan, no preemptive rights
exist with respect to the Shares or the Foundation Shares; and the
terms and provisions of the Shares and the Foundation 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 Company, the MHC and the Bank, upon the issuance of
the Shares and the Foundation Shares, good title to the Shares and the
Foundation Shares will be transferred from the Company to the
purchasers thereof (or the Foundation, as appropriate) against payment
therefor, subject to such claims as may be asserted against the
purchasers thereof by third-party claimants.
(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 approval of
the Commission, the OTS and any necessary qualification, notification,
registration or exemption under the securities or blue sky laws of the
various states in which the Shares are to be offered, and except as
may be required under the rules and regulations of the NASD.
(w) Deloitte & Touche LLP which has certified the consolidated audited
financial statements and schedules of the Bank included in the
Prospectus, has advised the Company, the MHC and the Bank in writing
that they are, with respect to the Company, the MHC and the Bank,
independent public accountants
14
within the meaning of the Code of Professional Ethics of the American
Institute of Certified Public Accountants and Title 12 of the Code of
Federal Regulations and Section 571.2(c)(3).
(x) RP Financial LC, which has prepared the Bank's Reorganization
Valuation Appraisal Report as of November 20, 1998 (as amended or
supplemented, if so amended or supplemented) (the "Appraisal"), has
advised the Company in writing that it is independent of the Company,
the MHC and the Bank within the meaning of the MHC Regulations.
(y) The Company, the MHC and the Bank have timely filed all required
federal, state and local tax returns; the Company, the MHC and the
Bank have paid all taxes that have become due and payable in respect
of such returns, except where permitted to be extended, have made
adequate reserves for similar future tax liabilities and no deficiency
has been asserted with respect thereto by any taxing authority.
(z) The Bank is in compliance in all material respects with the applicable
financial record-keeping 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 Company, the MHC and the Bank, neither the
Company, the MHC, the Bank nor employees of the Company, the MHC or
the Bank have made any payment of funds of the MHC, the Company or the
Bank as a loan for the purchase of the Shares or made any other
payment of funds prohibited by law, and no funds have been set aside
to be used for any payment prohibited by law.
(bb) Prior to the Reorganization, neither the Company, the MHC nor the Bank
has: (i) issued any securities within the last 18 months (except for
notes to evidence other bank loans and reverse repurchase agreements
or other liabilities in the ordinary course of business or as
described in the Prospectus, and except for any shares issued in
connection with the incorporation of the Company); (ii) had any
material dealings within the 12 months prior to the date hereof with
any member of the NASD, or any person related to or associated with
such member, other than discussions and meetings relating to the
proposed Offering and routine purchases and sales of United States
government and agency securities; (iii) entered into a financial or
management consulting agreement except as contemplated hereunder; and
(iv) engaged any intermediary between the Agent and the Company, the
MHC and the Bank in connection with the offering of the Shares, and no
person is being compensated in any manner for such service.
Appropriate
15
arrangements have been made for placing the funds received from
subscriptions for Shares in a special interest-bearing account with
the Bank until all Shares are sold and paid for, with provision for
refund to the purchasers in the event that the Reorganization is not
completed for whatever reason or for delivery to the Company if all
Shares are sold.
(cc) The Company, the MHC and the Bank have not relied upon the Agent or
its legal counsel or other advisors for any legal, tax or accounting
advice in connection with the Reorganization.
(dd) The Company is not required to be registered under the Investment
Company Act of 1940, as amended.
(ee) Any certificates signed by an officer of the Company, the MHC or the
Bank pursuant to the conditions of this Agreement and delivered to the
Agent or their counsel that refers to this Agreement shall be deemed
to be a representation and warranty by the Company, the MHC or the
Bank to the Agent as to the matters covered thereby with the same
effect as if such representation and warranty were set forth herein.
(ff) The Foundation has been duly incorporated and is validly existing as a
private charitable foundation in good standing under the laws of the
State of Kansas with corporate power and authority to own, lease and
operate its properties and to conduct its business as described in the
Prospectus; the Foundation will not be a savings and loan holding
company within the meaning of 12 C.F.R. Section 574.2(q) as a result
of the issuance of the Foundation Shares to it in accordance with the
terms of the Plan and in the amounts as described in the Prospectus;
to the knowledge of the Bank, the MHC and the Company, all approvals
required to establish the Foundation and to contribute the Foundation
Shares thereto and cash on an amount equal to 4.0% of the Shares sold
in the Offering have been obtained as described in the Prospectus;
except as specifically disclosed in the Prospectus and the Proxy
Statement, there are no agreements and/or understandings, written or
oral or otherwise, between the Company, the MHC, and/or the Bank and
the Foundation with respect to the control, directly or indirectly,
over the voting and the acquisition or disposition of the shares of
Common Stock to be contributed by the Company to the Foundation; the
Foundation Shares to be issued to the Foundation in accordance with
the Plan and as described in the Prospectus will have been duly
authorized for issuance and, when issued and contributed by the
Company pursuant to the Plan, will be duly and validly issued and
fully paid and non-assessable.
16
Section 5. Representations and Warranties of the Agent.
Xxxx represents and warrants to the Company, the MHC and the Bank that:
(i) it is a corporation and is validly existing in good standing under
the laws of the State of Ohio and licensed to conduct business in the State
of Ohio and it has the full power and authority to provide the services to
be furnished to the Bank, the MHC and the Company hereunder.
(ii) 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 Agent, and this
Agreement has been duly and validly executed and delivered by the Agent and
is a legal, valid and binding agreement of the Agent, enforceable in
accordance with its terms.
(iii) Each of the Agent and its employees, 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.
(iv) 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 will not conflict with, or result in a
breach of, any of the terms, provisions or conditions of, or constitute a
default (or an event which with notice or lapse of time or both would
constitute a default) under, the articles of incorporation of the Agent or
any agreement, indenture or other instrument to which the Agent is a party
or by which it or its property is bound.
(v) No approval of any regulatory or supervisory or other public
authority is required in connection with the Agent's execution and delivery
of this Agreement, except as may have been received.
(vi) There is no suit or proceeding or charge or action before or by
any court, regulatory authority or government agency or body or, to the
knowledge of the Agent, pending or threatened, which might materially
adversely affect the Agent's performance of this Agreement.
Section 5.l Covenants of the Company, the MHC and the Bank. The Company,
the MHC and the Bank hereby jointly and severally covenant with Xxxx as follows:
(a) The Company will not, at any time after the date the Registration
Statement is declared effective, file any amendment or supplement to
the Registration Statement without providing the Agent and its counsel
an opportunity to
17
review such amendment or supplement or file any amendment or
supplement to which amendment or supplement the Agent or its counsel
shall reasonably object.
(b) The MHC and Bank will not, at any time after the MHC Application and
the MHC Notice is approved by the OTS, file any amendment or
supplement to such MHC Application or MHC Notice without providing the
Agent and its counsel an opportunity to review such amendment or
supplement or file any amendment or supplement to which amendment or
supplement the Agent or its counsel shall reasonably object.
(c) The Company will not, at any time before the Holding Company
Application is approved by the OTS, file any amendment or supplement
to such Holding Company Application without providing the Agent and
its counsel an opportunity to review the nonconfidential portions of
such amendment or supplement or file any amendment or supplement to
which amendment or supplement the Agent or its counsel shall
reasonably object.
(d) The Company, the MHC and the Bank will use their best efforts to cause
any post-effective amendment to the Registration Statement to be
declared effective by the Commission and any post-effective amendment
to the MHC Application or the MHC Notice to be approved by the OTS and
will immediately upon receipt of any information concerning the events
listed below notify the Agent: (i) when the Registration Statement, as
amended, has become effective; (ii) when the MHC Application, as
amended, and the MHC Notice have been approved by the OTS; (iii) any
comments from the Commission, the OTS or any other governmental entity
with respect to the Reorganization or the transactions contemplated by
this Agreement; (iv) of the request by the Commission, the OTS or any
other governmental entity for any amendment or supplement to the
Registration Statement, the MHC Application, the MHC Notice or for
additional information; (v) of the issuance by the Commission, the OTS
or any other governmental entity of any order or other action
suspending the Offering or the use of the Registration Statement or
the Prospectus or any other filing of the Company, the MHC or the Bank
under the MHC Regulations, or other applicable law, or the threat of
any such action; (vi) the issuance by the Commission, the OTS or any
authority of any stop order suspending the effectiveness of the
Registration Statement or of the initiation or threat of initiation or
threat of any proceedings for that purpose; or (vii) of the occurrence
of any event mentioned in paragraph (h) below. The Company, the MHC
and the Bank will make every reasonable effort (i) to prevent the
issuance by the Commission, the OTS or any state authority of any such
order and, if any
18
such order shall at any time be issued, (ii) to obtain the lifting
thereof at the earliest possible time.
(e) The Company, the MHC and the Bank will deliver to the Agent and to its
counsel two conformed copies of the Registration Statement, the MHC
Application, the MHC Notice and the Holding Company Application, as
originally filed and of each amendment or supplement thereto,
including all exhibits. Further, the Company, the MHC and the Bank
will deliver such additional copies of the foregoing documents to
counsel to the Agent as may be required for any NASD and "blue sky"
filings.
(f) The Company, the MHC and the Bank will furnish to the Agent, from time
to time during the period when the Prospectus (or any later prospectus
related to this offering) 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 amended or supplemented) 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"). The Company authorizes the Agent to use the Prospectus
(as amended or supplemented, if amended or supplemented) in any lawful
manner contemplated by the Plan in connection with the sale of the
Shares by the Agent.
(g) The Company, the MHC and the Bank will comply with any and all
material terms, conditions, requirements and provisions with respect
to the Reorganization, and the transactions contemplated thereby,
including those conditions relating to the operation of the
Foundation, imposed by the Commission, the OTS or the MHC Regulations,
and by the 1933 Act, the 1933 Act Regulations, the 1934 Act and the
1934 Act Regulations to be complied with prior to or subsequent to the
Closing Date and when the Prospectus is required to be delivered, and
during such time period the Company, the MHC and the Bank will comply,
at their own expense, with all material requirements imposed upon them
by the Commission, the OTS or the MHC Regulations, and by the 1933
Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act
Regulations, including, without limitation, Rule 10b-5 under the 1934
Act, in each case as from time to time in force, so far as necessary
to permit the continuance of sales or dealing in the Common Stock
during such period in accordance with the provisions hereof and the
Prospectus.
(h) If, at any time during the period when the Prospectus relating to the
Shares is required to be delivered, any event relating to or affecting
the Company, the MHC or the Bank shall occur, as a result of which it
is necessary or
19
appropriate, in the opinion of counsel for the Company, the MHC and
the Bank or in the reasonable 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
to a purchaser, the Company, the MHC and the Bank will immediately so
inform the Agent and prepare and file, at their own expense, with the
Commission, 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 reasonably satisfactory to the Agent and its counsel after a
reasonable time for review) which will amend or supplement the
Registration Statement or Prospectus so that as amended or
supplemented it will not contain an untrue statement of a material
fact or omit to state a material fact necessary in order to make the
statements therein, in light of the circumstances existing at the time
the Prospectus is delivered to a purchaser, not misleading. For the
purpose of this Agreement, the Company, the MHC and the Bank each will
timely furnish to the Agent such information with respect to itself as
the Agent may from time to time reasonably request.
(i) The Company, the MHC and the Bank will take all necessary actions, in
cooperating with the Agent, and furnish to whomever the Agent may
direct, such information as may be required to qualify or register the
Shares for offering and sale by the Company or to exempt such Shares
from registration, or to exempt the Company as a broker-dealer and its
officers, directors and employees as broker-dealers or agents under
the applicable securities or blue sky laws of such jurisdictions in
which the Shares are required under the MHC Regulations to be sold or
as the Agent and the Company, the MHC and the Bank may reasonably
agree upon; provided, however, that the Company shall not be obligated
to file any general consent to service of process, to qualify to do
business in any jurisdiction in which it is not so qualified, or to
register its directors or officers as brokers, dealers, salesmen or
agents in any jurisdiction. In each jurisdiction where any of the
Shares shall have been qualified or registered as above provided, the
Company will make and file such statements and reports in each fiscal
period as are or may be required by the laws of such jurisdiction.
(j) The liquidation account for the benefit of Eligible Account Holders
and Supplemental Eligible Account Holders will be duly established and
maintained in accordance with the requirements of the OTS, and such
Eligible Account Holders and Supplemental Eligible Account Holders who
continue to maintain their savings accounts in the Bank will have an
inchoate interest in their pro rata portion of the liquidation
account.
20
(k) The Company, the MHC and the Bank will not sell or issue, contract to
sell or otherwise dispose of, for a period of 90 days after the
Closing Date, without the Agent's prior written consent, any Common
Stock other than the Shares or the Foundation Shares or other than in
connection with any plan or arrangement described in the Prospectus,
including existing stock benefit plans.
(l) The Company shall register its Common Stock under Section 12(g) of the
1934 Act on or prior to the Closing Date pursuant to the Plan and
shall request that such registration be effective prior to or upon
completion of the Reorganization. The Company shall maintain the
effectiveness of such registration for not less than three years or
such shorter period as may be required by the OTS.
(m) During the period during which the Company's Common Stock is
registered under the 1934 Act or for three (3) years from the date
hereof, whichever period is greater, the Company will furnish to its
shareholders as soon as practicable after the end of each fiscal year
an annual report of the Company (including a consolidated balance
sheet and statements of consolidated income, shareholders' equity and
cash flows of the Company and its subsidiaries as at the end of and
for such year, certified by independent public accountants in
accordance with Regulation S-X under the 1933 Act and the 1934 Act).
(n) During the period of three years from the date hereof, the Company
will 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, MHC
or the Bank as the Agent may reasonably request; and (iii) from time
to time, such other nonconfidential information concerning the
Company, the MHC or the Bank as the Agent may reasonably request.
(o) The Company, the MHC and the Bank will use the net proceeds from the
sale of the Shares in the manner set forth in the Prospectus under the
caption "Use of Proceeds."
21
(p) Other than as permitted by the MHC Regulations, the HOLA, the 1933
Act, the 1933 Act Regulations, and the laws of any state in which the
Shares are registered or qualified for sale or exempt from
registration, neither the Company, the MHC nor the Bank will
distribute any prospectus, offering circular or other offering
material in connection with the offer and sale of the Shares.
(q) The Company will use its best efforts to (i) encourage and assist a
market maker to establish and maintain a market for the Shares and
(ii) list and maintain quotation of the Shares on a national or
regional securities exchange or on the Nasdaq Stock Market ("Nasdaq")
effective on or prior to the Closing Date.
(r) The Bank will 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 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
canceled in accordance with the Plan and as described in the
Prospectus. The Bank will 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 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.
(s) The Company will promptly take all necessary action to register as a
savings and loan holding company under the HOLA within 90 days of the
Closing Date.
(t) The Company, the MHC and the Bank will take such actions and furnish
such information as are reasonably requested by the Agent in order for
the Agent to ensure compliance with the NASD's "Interpretation
Relating to Free Riding and Withholding."
(u) Neither the Company, the MHC nor the Bank will amend the Plan without
notifying the Agent prior thereto.
(v) The Company shall assist the Agent, if necessary, in connection with
the allocation of the Shares in the event of an oversubscription and
shall provide
22
the Agent with any information necessary to assist the Company in
allocating the Shares in such event and such information shall be
accurate and reliable in all material respects.
(w) Prior to the Closing Date, the Company, the MHC and the Bank will
inform the Agent of any event or circumstances of which it is aware as
a result of which the Registration Statement and/or Prospectus, as
then amended or supplemented, would contain an untrue statement of a
material fact or omit to state a material fact necessary in order to
make the statements therein not misleading.
(x) Subsequent to the date the Registration Statement is declared
effective by the Commission and prior to the Closing Date, except as
otherwise may be indicated or contemplated therein or set forth in an
amendment or supplement thereto, neither the Company, the MHC nor the
Bank will have: (i) issued any securities or incurred any liability or
obligation, direct or contingent, for borrowed money, except
borrowings from the same or similar sources indicated in the
Prospectus in the ordinary course of its business, or (ii) entered
into any transaction which is material in light of the business and
properties of the Company and the Bank, taken as a whole.
(y) The facts and representations provided to Silver Xxxxxxxx & Xxxx,
L.L.P. by the Bank, the MHC and the Company and upon which Silver
Xxxxxxxx & Xxxx, L.L.P. will base its opinion under Section 7(c)(1)
are and will be truthful, accurate and complete.
(z) The Company, the MHC and the Bank shall use their best efforts to
ensure that the Foundation submits within the time frames required by
applicable law a request to the Internal Revenue Service to be
recognized as a tax- exempt organization under Section 501(c)(3) of
the Internal Revenue Code of 1986, as amended (the "Code"); the
Company, the MHC and the Bank will take no action which will result in
the possible loss of the Foundation's tax- exempt status; and neither
the Company, the MHC nor the Bank will contribute any additional
assets to the Foundation until such time that such additional
contributions will be deductible for federal and state income tax
purposes.
Section 6. Payment of Expenses. Whether or not the Reorganization is
completed or the sale of the Shares by the Company is consummated, the Company,
the MHC and the Bank jointly and severally agree to pay or reimburse the Agent
for the Company, the MHC and the Bank have agreed to reimburse Xxxx for its
out-of-pocket expenses, and its legal fees and to indemnify Xxxx against certain
claims or liabilities, including certain liabilities under the Securities Act,
and will contribute to payments Xxxx may be required to make in connection with
any such claims or
23
liabilities; and the fees set forth under this Section 2. In the event the
Company is unable to sell a minimum of___________ Shares or the Reorganization
is terminated or otherwise abandoned, the Company, the MHC and the Bank shall
promptly reimburse the Agent in accordance with Section 2 hereof.
Section 7. Conditions to the Agent's Obligations. The obligations of the
Agent hereunder, as to the Shares to be delivered at the Closing Date, are
subject, to the extent not waived in writing by the Agent, to the condition that
all representations and warranties of the Company, the MHC and the Bank 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 Company,
the MHC and the Bank 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 Company, the MHC and the Bank shall have
conducted the Reorganization in all material respects in accordance
with the Plan, the MHC Regulations, and all other applicable laws,
regulations, decisions and orders, including all terms, conditions,
requirements and provisions precedent to the Reorganization imposed
upon them by the OTS.
(b) The Registration Statement shall have been declared effective by the
Commission and the MHC Application and MHC Notice shall be 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 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 Company's,
the MHC's or the Bank's knowledge, threatened by the Commission, the
OTS, the FDIC, or any 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 and for its benefit, of Silver Xxxxxxxx & Xxxx,
L.L.P., special counsel for the Company, the MHC and the Bank, in
form and substance to the effect that:
(i) The Company has been duly incorporated and is validly
existing as a corporation under the laws of the United States.
(ii) The Company 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.
24
(iii) The Bank has been organized and is a validly existing
federally chartered savings bank in capital stock form of
organization, authorized to conduct its business and own its
property as described in the Registration Statement and the
Prospectus. All of the outstanding capital stock of the Bank upon
completion of the Reorganization will be duly authorized and,
upon payment therefor, will be validly issued, fully paid and
non-assessable and will be owned by the Company, free and clear
of any liens, encumbrances, claims or other restrictions.
(iv) The Subsidiary has been duly incorporated and is
validly existing as a corporation under the laws of the state of
Kansas and has corporate power and authority to own, lease and
operate its properties and conduct its business as described in
the Prospectus. The activities of the Subsidiary as described in
the Prospectus are permitted to subsidiaries of a savings and
loan holding company and of a federally chartered savings and
loan association by the rules, regulations, resolutions and
practices of the OTS.
(v) The Bank is a member of the FHLB-Topeka. The deposit
accounts of the Bank are insured by the FDIC up to the maximum
amount allowed under law and no proceedings for the termination
or revocation of such insurance are pending or, to such counsel's
Actual Knowledge, threatened; the description of the liquidation
account as set forth in the Prospectus under the captions "The
Reorganization and Stock Issuance-Effects of the
Reorganization-Liquidation Rights," to the extent that such
information constitutes matters of law and legal conclusions, has
been reviewed by such counsel and is accurately described in all
material respects.
(vi) The MHC has been duly organized and is validly existing
as a federally chartered mutual holding company, duly authorized
to conduct its business and own its properties as described in
the Registration Statement and Prospectus.
(vii) Upon consummation of the Reorganization and the
issuance of Foundation Shares to the Foundation immediately upon
completion thereof subject to compliance with all conditions
imposed upon the Foundation and the contribution thereof by the
OTS under the terms of the OTS' approval order, in an amount as
described in the Prospectus, the authorized, issued and
outstanding capital stock 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 issued prior to the
Closing Date; at the time of the Reorganization, the Shares
subscribed for pursuant to the Offering and the Foundation Shares
will have been duly and validly authorized for issuance, and when
issued and delivered by the Company pursuant to the Plan against
25
payment of the consideration calculated as set forth in the Plan
and Prospectus, will be duly and validly issued and fully paid
and non-assessable; the issuance of the Shares and the Foundation
Shares is not subject to preemptive rights and the terms and
provisions of the Shares and the Foundation Shares conform in all
material respects to the description thereof contained in the
Prospectus. To such counsel's Actual Knowledge, upon the issuance
of the Shares and the Foundation Shares, good title to the Shares
and the Foundation Shares will be transferred by 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.
(viii) The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby, including
the establishment of the Foundation and the contribution thereto
of the Foundation Shares, have been duly and validly authorized
by all necessary action on the part of the Company, the MHC and
the Bank; and this Agreement is a valid and binding obligation of
the Company, the MHC and the Bank, enforceable in accordance with
its terms, except as the enforceability thereof may be limited by
(i) bankruptcy, insolvency, reorganization, moratorium,
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, the deposits of which are insured by the FDIC and
their holding companies, (ii) general equitable principles, (iii)
laws relating to the safety and soundness of insured depository
institutions and their holding companies, and (iv) applicable law
or public policy with respect to the indemnification and/or
contribution provisions contained herein, including without
limitation the provisions of Sections 23A and 23B of the Federal
Reserve Act and except that no opinion need be expressed as to
the effect or availability of equitable remedies or injunctive
relief (regardless of whether such enforceability is considered
in a proceeding in equity or at law).
(ix) The MHC Application (including therewith, the
establishment of the Foundation and the contribution of the
Foundation Shares thereto) and the MHC Notice have been approved
by the OTS and the Prospectus has been authorized for use by the
OTS. The OTS has approved the Holding Company Application and
issued its order of approval under the savings and loan holding
company provisions of the HOLA, the purchase by the Company of
all of the issued and outstanding capital stock of the Bank has
been authorized by the OTS and no action has been taken, and to
such counsel's Actual Knowledge none is pending or threatened, to
revoke any such authorization or approval.
26
(x) The Plan and the establishment and funding of the
Foundation has been duly adopted by the required vote of the
directors of the Company, the MHC and the Bank, and based upon
the certificate of the inspector of election, by the members of
the Bank.
(xi) Subject to the satisfaction of the conditions to the
OTS' approval of the Reorganization, no further approval,
registration, authorization, consent or other order of any
federal regulatory agency is required in connection with the
execution and delivery of this Agreement, the issuance of the
Shares and the Foundation Shares and the consummation of the
Reorganization, except as may be required under the securities or
blue sky laws of various jurisdictions (as to which no opinion
need be rendered) and except as may be required under the rules
and regulations of the NASD and/or the NYSE (as to which no
opinion need be rendered). To such counsel's Actual Knowledge,
the Reorganization has been consummated in all material respects
in accordance with MHC Regulations, except that no opinion is
rendered with respect to (a) the MHC Application, the
Registration Statement or Prospectus, which are covered by other
clauses of this opinion, (b) the satisfaction of the
post-Reorganization conditions in the OTS Regulations or in the
OTS approvals of the MHC Application and the Holding Company
Application, (c) the securities or "blue sky" laws of various
jurisdictions, and (d) the rules and regulations of the NASD.
(xii) The Registration Statement is effective under the 1933
Act, and no stop order suspending the effectiveness has been
issued under the 1933 Act or proceedings therefor initiated or,
to such counsel's Actual Knowledge, threatened by the Commission.
(xiii) At the time the MHC Application, including the
Prospectus contained therein, and the MHC Notice were approved by
the OTS, the MHC Application, including the Prospectus contained
therein, and the MHC Notice complied as to form in all material
respects with the requirements of the MHC Regulations, federal
law and all applicable rules and regulations promulgated
thereunder (other than the financial statements, the notes
thereto, and other tabular, financial, statistical and appraisal
data included therein, as to which no opinion need be rendered).
(xiv) At the time that the Registration Statement became
effective, (i) the Registration Statement (as amended or
supplemented, if so amended or supplemented) (other than the
financial statements, the notes thereto, and other tabular,
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,
27
and (ii) the Prospectus (other than the financial statements, the
notes thereto, and other tabular, 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, the 1933 Act Regulations, the MHC
Regulations and federal law.
(xv) The terms and provisions of the Shares of the Company
conform, in all material respects, to the description thereof
contained in the Registration Statement and Prospectus, and the
form of certificate used to evidence the Shares is in due and
proper form.
(xvi) There are no legal or governmental proceedings pending
or threatened which are required to be disclosed in the
Registration Statement and Prospectus, other than those disclosed
therein, and to such counsel's Actual Knowledge, all pending
legal and governmental proceedings to which the Company, the MHC,
the Bank or the Foundation is a party or of which any of their
property is the subject, which are not described in the
Registration Statement and the Prospectus, including ordinary
routine litigation incidental to the Company's, the MHC's or the
Bank's business, are, considered in the aggregate, not material.
(xvii) To such counsel's Actual Knowledge, there are no
material contracts, indentures, mortgages, loan agreements,
notes, leases or other instruments required to be described or
referred to in the MHC Application, the Registration Statement or
the Prospectus or required to be filed as exhibits thereto other
than those described or referred to therein or filed as exhibits
thereto in the MHC Application, the Registration Statement or the
Prospectus. The description in the MHC Application, the
Registration Statement and the Prospectus of such documents and
exhibits is accurate in all material respects and fairly presents
the information required to be shown.
(xviii) To such counsel's Actual Knowledge, the Company, the
MHC and the Bank have conducted the Reorganization, in all
material respects, in accordance with all applicable requirements
of the Plan and applicable federal law, except that no opinion is
rendered with respect to (a) the MHC Application, the
Registration Statement or Prospectus, which are covered by other
clauses of this opinion, (b) the satisfaction of the
post-Reorganization conditions in the OTS Regulations or in the
OTS approvals of the MHC Application and the Holding Company
Application, (c) the securities or "blue sky" laws of various
jurisdictions, and (d) the rules and regulations of the NASD. The
Plan complies in all material respects with all applicable
federal laws, rules, regulations, decisions and orders including,
but not limited to, the MHC Regulations; no order has been issued
by the OTS, the Commission,
28
the FDIC, 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 Actual Knowledge, threatened by
the OTS, the Commission, the FDIC, or any state authority and no
person has sought to obtain regulatory or judicial review of the
final action of the OTS, approving the Plan, the MHC Application,
the Holding Company Application or the Prospectus.
(xix) To such counsel's Actual Knowledge, the Company, the
MHC, the Bank and the Subsidiary have obtained all material
licenses, permits and other governmental authorizations currently
required for the conduct of their businesses and all such
licenses, permits and other governmental authorizations are in
full force and effect, and the Company, the MHC, the Bank and the
Subsidiary are in all material respects complying therewith,
except where the failure to have such licenses, permits and other
governmental authorizations or the failure to be in compliance
therewith would not have a material adverse effect on the
business or operations of the Bank, the MHC, the Company an the
Subsidiary, taken as a whole.
(xx) To such counsel's Actual Knowledge, neither the
Company, the MHC nor the Bank is in violation of its articles of
incorporation and bylaws or its Charter and bylaws, as
appropriate or, to such counsel's Actual Knowledge, in default or
violation of any obligation, agreement, covenant or condition
contained in any contract, indenture, mortgage, loan agreement,
note, lease or other instrument to which it is a party or by
which it or its property may be bound, except for such defaults
or violations which would not have a material adverse impact on
the financial condition or results of operations of the Company,
the MHC and the Bank on a consolidated basis; to such counsel's
Actual Knowledge, the execution and delivery of this Agreement,
the occurrence of the obligations herein set forth and the
consummation of the transactions contemplated herein will not
conflict with or constitute a breach of, or default under, or
result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company, the MHC
or the Bank pursuant to any material contract, indenture,
mortgage, loan agreement, note, lease or other instrument to
which the Company, the MHC or the Bank is a party or by which any
of them may be bound, or to which any of the property or assets
of the Company, the MHC or the Bank are subject (other than the
establishment of the liquidation account); and, such action will
not result in any violation of the provisions of the certificate
of incorporation or bylaws of the Company or the Charter or
bylaws of the MHC or the Bank or, to such counsel's Actual
Knowledge, result in any violation of any applicable federal law,
act, regulation (except that no opinion with respect to the
securities and blue sky laws of various jurisdictions or the
29
rules or regulations of the NASD need be rendered) or order or
court order, writ, injunction or decree.
(xxi) The Company's articles of incorporation and bylaws
comply in all material respects with the regulations of the OTS.
The Bank's and MHC's charter and bylaws comply in all material
respects with the rules and regulations of the OTS.
(xxii) To such counsel's Actual Knowledge, neither the
Company, the MHC nor the Bank is in violation of any directive
from the OTS or the FDIC to make any material change in the
method of conducting its respective business.
(xxiii) The information in the Prospectus under the captions
"Regulation," "The Reorganization and Stock Issuance," "Certain
Restrictions on Acquisition of the Stock Holding Company and the
Bank" and "Description of Capital Stock of the Stock 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
correct in all material respects. The description of the
Reorganization process under the caption "The Reorganization and
Share Issuance" in the Prospectus has been reviewed by such
counsel and fairly describes such process in all material
respects. The discussion of statutes or regulations described or
referred to in the Prospectus are accurate summaries and fairly
present the information required to be shown. The information
under the caption "The Reorganization and Stock Issuance-Effects
of the Reorganization-Tax Effects" has been reviewed by such
counsel and fairly describes the opinions rendered by Silver
Xxxxxxxx & Xxxx, L.L.P. and Deloitte & Touche LLP to the Company,
the MHC and the Bank with respect to such matters.
(xxiv) The Foundation has been duly incorporated and is
validly existing as a non-stock corporation in good standing
under the laws of the State of Kansas with corporate power and
authority to own, lease and operate its properties and to conduct
its business as described in the Prospectus; the Foundation is
not a savings and loan holding company within the meaning of 12
C.F.R. Section 574.2(q) as a result of the issuance of the
Foundation Shares to it in accordance with the terms of the Plan
and in the amounts as described in the Prospectus; no approvals
are required to establish the Foundation and to contribute the
Foundation Shares and cash amounts thereto as described in the
Prospectus other than those set forth in the OTS' approval order;
the Foundation Shares to be issued to the Foundation in
accordance with the Plan and as described in the Prospectus will
have been duly
30
authorized for issuance and, when issued and contributed by the
Company pursuant to the Plan, will be duly and validly issued and
fully paid and non-assessable.
In addition, such counsel shall state that during the
preparation of the MHC Application, the MHC Notice, the
Registration Statement and the Prospectus, they participated in
conferences with certain officers of, the independent public and
internal accountants for, and other representatives of the
Company, the MHC and the Bank, at which conferences the contents
of the MHC Application, the MHC Notice, the Registration
Statement and the Prospectus and related matters were discussed
and, while such counsel have not confirmed the accuracy or
completeness of or otherwise verified the information contained
in the MHC Application, the MHC Notice, the Registration
Statement or the Prospectus, and do not assume any responsibility
for such information, based upon such conferences and a review of
documents deemed relevant for the purpose of rendering their view
(relying as to materiality as to factual matters on certificates
of officers and other factual representations by the Company, the
MHC and the Bank), nothing has come to their attention that would
lead them to believe that the MHC Application, the MHC Notice,
the Registration Statement, the Prospectus, or any amendment or
supplement thereto (other than the financial statements, the
notes thereto, and other tabular, financial, statistical and
appraisal data included therein as to which no view need be
rendered) contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or
necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
In giving such opinion, such counsel may rely as to all matters
of fact on certificates of officers or directors of the Company, the
MHC and the Bank and certificates of public officials. Such counsel's
opinion shall be limited to matters governed by federal banking and
securities laws. The opinion of Silver Xxxxxxxx & Xxxx, L.L.P. shall
be governed by the Legal Opinion Accord ("Accord") of the American Bar
Association Section of Business Law (1991). The term "Actual
Knowledge" as used herein shall have the meaning set forth in the
Accord. 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 the Company, the MHC or the Bank
shall have received a copy of such proceedings, order, stop order or
action. In addition, such opinion may be limited to present statutes,
regulations and judicial interpretations and to facts as they
presently exist; in rendering such opinion, such counsel need assume
no obligation to revise or supplement it should the present laws be
changed by legislative or regulatory action, judicial decision or
otherwise; and such counsel need express no view, opinion or belief
with respect to whether any proposed or pending legislation, if
enacted, or
31
any proposed or pending regulations or policy statements issued by any
regulatory agency, whether or not promulgated pursuant to any such
legislation, would affect the validity of the Reorganization or any
aspect thereof. Such counsel may assume that any agreement is the
valid and binding obligation of any parties to such agreement other
than the Company, the MHC or the Bank.
The favorable opinion, dated as of the Closing Date and addressed
to the Agent and for their benefit, of the Bank's local counsel, in
form and substance to the effect that, to the best of such counsel's
knowledge, (i) the Company, the MHC and the Bank have good and
marketable title to all properties and assets which are material to
the business of the Company, the MHC and the Bank 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 such as are described in the
Registration Statement and Prospectus, or are not material in relation
to the business of the Company, the MHC and the Bank considered as one
enterprise; (ii) all of the leases and subleases material to the
business of the Company, the MHC and the Bank under which the Company,
the MHC and the Bank hold properties, as described in the Registration
Statement and Prospectus, are in full force and effect; and (iii) the
Bank is duly qualified as a foreign corporation to transact business
and is in good standing in each jurisdiction in which its ownership of
property or leasing of property or the conduct of its business
requires such qualification, unless the failure to be so qualified in
one or more of such jurisdictions would not have a material adverse
effect on the condition, financial or otherwise, or the business,
operations or income of the Bank.
(d) At the Closing Date, the Agent shall have received the favorable
opinion, dated as of the Closing Date, of Xxxxx, Xxxx, Xxxxxxx &
Xxxxxxx, L.L.P., the Agent's counsel, with respect to such matters as
the Agent may reasonably require. Such opinion may rely upon the
opinions of counsel to the Company, the MHC and the Bank, and as to
matters of fact, upon certificates of officers and directors of the
Company, the MHC and the Bank delivered pursuant hereto or as such
counsel shall reasonably request.
(e) At the Closing Date, the Agent shall receive a certificate of the
Chief Executive Officer and the Principal Financial and/or Accounting
Officer of the Company, the MHC and the Bank in form and substance
reasonably satisfactory to the Agent's Counsel, dated as of such
Closing Date, to the effect that: (i) they have carefully reviewed the
Prospectus and, in their opinion, 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 date the Prospectus became authorized for final use, no event has
occurred which should have been set forth in an amendment or
supplement to the Prospectus which has not been so set forth,
including specifically, but without limitation, any material adverse
change in the condition, financial or otherwise, or in the earnings,
capital, properties or business of the Company,
32
the MHC or the Bank, and the conditions set forth in this Section 7
have been satisfied; (iii) since the respective dates as of which
information is given in the Registration Statement and the Prospectus,
there has been no material adverse change in the condition, financial
or otherwise, or in the earnings, capital or properties of the
Company, the MHC or the Bank, independently, or of the Company, the
MHC and the Bank, considered as one enterprise, whether or not arising
in the ordinary course of business; (iv) the representations and
warranties in Section 4 are true and correct with the same force and
effect as though expressly made at and as of the Closing Date; (v) the
Company, MHC and the Bank have complied in all material respects 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 Reorganization; (vi) no stop order suspending the
effectiveness of the Registration Statement has been initiated or, to
the best knowledge of the Company, the MHC or the Bank, threatened by
the Commission or any state authority; (vii) no order suspending the
Offering, the Reorganization, the acquisition of all of the shares of
the Bank by the Company or the effectiveness of the Prospectus has
been issued and no proceedings for that purpose are pending or, to the
best knowledge of the Company, the MHC or the Bank, threatened by the
OTS, the Commission, the FDIC, or any state authority; and (viii) to
the best knowledge of the Company, the MHC or the Bank, no person has
sought to obtain review of the final action of the OTS approving the
Plan.
(f) 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
condition, financial or otherwise, or in the earnings or business of
the Company, the MHC or the Bank independently, or of the Company, the
MHC and the Bank, considered as one enterprise, from that as of the
latest dates as of which such condition is set forth in the Prospectus
other than transactions referred to or contemplated therein; (ii) the
Company, the MHC or the Bank shall not have received from the OTS or
the FDIC any direction (oral or written) to make any material change
in the method of conducting their business with which it has not
complied (which direction, if any, shall have been disclosed to the
Agent) or which materially and adversely would affect the business,
operations or financial condition or income of the Company, the MHC
and the Bank taken as a whole; (iii) the Company, the MHC and the Bank
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 proceeding,
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 Company, the MHC or the Bank, threatened
33
against the Company, the MHC or the Bank 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 Company, the MHC and the Bank taken as a
whole; and (v) the Shares have been qualified or registered for
offering and sale or exempted therefrom under the securities or blue
sky laws of the jurisdictions as the Agent shall have reasonably
requested and as agreed to by the Company, the MHC and the Bank.
(g) Concurrently with the execution of this Agreement, the Agent shall
receive a letter from Deloitte & Touche LLP dated as of the date of
the Prospectus and addressed to the Agent: (i) confirming that
Deloitte & Touche LLP is a firm of independent public accounts within
the meaning of Rule 101 of the Code of Professional Ethics of the
American Institute of Certified Public Accountants and applicable
regulations of the OTS and stating in effect that in its opinion the
consolidated financial statements, schedules and related notes of the
Bank as of September 30, 1998 and 1997 and for each of the three years
in the period ended September 30, 1997, as are included in the
Prospectus and covered by their opinion included therein, comply as to
form in all material respects with the applicable accounting
requirements and related published rules and regulations of the OTS
and the 1933 Act; (ii) stating in effect that, on the basis of certain
agreed upon procedures (but not an audit in accordance with generally
accepted auditing standards) consisting of a reading of the latest
available unaudited interim consolidated financial statements of the
Bank prepared by the Bank, a reading of the minutes of the meetings of
the Board of Directors and members of the Bank and consultations with
officers of the Bank responsible for financial and accounting matters,
nothing came to their attention which caused them to believe that: (A)
the unaudited financial statements included in the Prospectus are not
in conformity with the 1933 Act, applicable accounting requirements of
the OTS and generally accepted accounting principles applied on a
basis substantially consistent with that of the audited financial
statements included in the Prospectus; or (B) during the period from
the date of the latest unaudited consolidated financial statements
included in the Prospectus to a specified date not more than three
business days prior to the date of the Prospectus, except as has been
described in the Prospectus, there was any increase in borrowings,
other than normal deposit fluctuations, by the Bank; or (c) there was
any decrease in the consolidated net assets of the Bank at the date of
such letter as compared with amounts shown in the latest unaudited
consolidated statement of condition included in the Prospectus; and
(iii) stating that, in addition to the audit referred to in their
opinion included in the Prospectus and the performance of the
procedures referred to in clause (ii) of this subsection (f), they
have compared with the general accounting
34
records of the Bank, which are subject to the internal controls of the
Bank, the accounting system and other data prepared by the Bank,
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 reported on the
results of such comparisons.
(h) At the Closing Date, the Agent shall receive a letter dated the
Closing Date, addressed to the Agent, confirming the statements made
by Xxxxxxxx & Touche LLP in the letter delivered by it 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.
(i) At the Closing Date, the Agent shall receive a letter from RP
Financial LC, dated the date thereof and addressed to counsel for the
Agent (i) confirming that said firm is independent of the Company, the
MHC and the Bank and is experienced and expert in the area of
corporate appraisals within the meaning of Title 12 of the Code of
Federal Regulations, Section 563b.7(f)(1)(i), (ii) stating in effect
that the Appraisal prepared by such firm complies in all material
respects with the applicable requirements of Title 12 of the Code of
Federal Regulations, and (iii) further stating that their opinion of
the aggregate pro forma market value of the Company, the MHC and the
Bank expressed in their Appraisal dated as of November 20, 1998, and
most recently updated, remains in effect.
(j) The Company, the MHC and the Bank shall not have sustained since the
date of the latest financial statements included in the Prospectus any
material loss or interference with its business 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 and since the respective dates as of which
information is given in the Registration Statement and Prospectus,
there shall not have been any change in the long- term debt of the
Company, the MHC or the Bank other than debt incurred in relation to
the purchase of Shares by the Bank's Eligible Plans, or any change, or
any development involving a prospective change, in or affecting the
general affairs, management, financial position, stockholders' equity
or results of operations of the Company or the Bank, otherwise than as
set forth or contemplated in the Registration Statement and
Prospectus, the effect of which, in any such case described above, is
in Xxxx'x reasonable judgment sufficiently material and adverse as to
make it impracticable or inadvisable to proceed with the Subscription
Offering or the delivery of the Shares on the terms and in the manner
contemplated in the Prospectus.
35
(k) At or prior to the Closing Date, the Agent shall receive: (i) a copy
of the letters from the OTS approving the MHC Application and the MHC
Notice and authorizing the use of the Prospectus; (ii) a copy of the
order from the Commission declaring the Registration Statement
effective; (iii) certificate of good standing from the OTS evidencing
the good standing of the Company; (iv) a certificate from the FDIC
evidencing the Bank's insurance of accounts; (v) a certificate of the
FHLB-Topeka evidencing the Bank's membership thereof; (vi) a copy of
the letter from the OTS approving the Company's Holding Company
Application; (vii) a copy of the Bank's federal stock charter; and
(viii) a copy of the Company's federal charter; and (viii) a copy of
the MHC's federal charter.
(l) 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 NASD or by order of the Commission or any other
governmental authority; (ii) a general moratorium on the operations of
commercial banks, federal savings institutions or a general moratorium
on the withdrawal of deposits from commercial banks or federal savings
institutions declared by federal 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 if the effect of such a declaration or decline, in the
Agent's reasonable judgement, 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 the
Prospectus.
(m) At or prior to the Closing Date, counsel to the Agent shall have been
furnished with such documents and opinions as they may reasonably
require for the purpose of enabling them to pass upon the sale of the
Shares and the issuance of the Foundation Shares as herein
contemplated and related proceedings or in order to evidence the
occurrence or completeness of any of the representations or
warranties, or the fulfillment of any of the conditions, herein
contained; and all proceedings taken by the Company, the MHC or the
Bank in connection with the Reorganization and the sale of the Shares
and the issuance of the Foundation Shares as herein contemplated shall
be satisfactory in form and substance to Xxxx and its counsel.
36
Section 8. Indemnification.
(a) The Company, the MHC and the Bank jointly and severally agree to
indemnify and hold harmless the Agent, its respective officers and
directors, employees and agents, 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
expense (including reasonable fees and disbursements of counsel)
incurred by the Agent or any of them in connection with investigating,
preparing 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 based upon any untrue
statement or alleged untrue statement of a material fact contained in
the Registration Statement (or any amendment or supplement thereto),
preliminary or final Prospectus (or any amendment or supplement
thereto), the MHC Application (or any amendment or supplement
thereto), the MHC Notice (or any amendment or supplement thereto) the
Holding Company Application or any instrument or document executed by
the Company, the MHC or the Bank or based upon written information
supplied by the Company, the MHC or the Bank 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 agent, under the securities laws
thereof (collectively, the "Blue Sky Application"), or any document,
advertisement, oral statement or communication ("Sales Information")
prepared, made or executed by or on behalf of the Company, the MHC or
the Bank with their consent or based upon written or oral information
furnished by or on behalf of the Company, the MHC or the 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; (ii) arise out of or are 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 (iii) arise from any theory of liability
whatsoever relating to or arising from or based upon the Registration
Statement (or any amendment or supplement thereto), preliminary or
final Prospectus (or any amendment or supplement thereto), the MHC
Application (or any amendment or supplement thereto), the MHC Notice
(or any amendment or
37
supplement thereto), the Holding Company Application, any Blue Sky
Application or Sales Information or other documentation distributed in
connection with the Reorganization; 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 statement in, or material omission or alleged material
omission from, the Registration Statement (or any amendment or
supplement thereto), preliminary or final Prospectus (or any amendment
or supplement thereto), the MHC Application (or any amendment or
supplement thereto), the MHC Notice (or any amendment or supplement
thereto), the Holding Company Application, any Blue Sky Application or
Sales Information made in reliance upon and in conformity with
information furnished in writing to the Company, the MHC or the Bank
by the Agent or its counsel regarding the Agent provided, that it is
agreed and understood that the only information furnished in writing
to the Company, the MHC or the Bank by the Agent regarding the Agent
is set forth in the Prospectus under the caption "The Reorganization
and Stock Issuance--Marketing Arrangements"; and, provided further,
that such indemnification shall be to the extent permitted by the
Commissioner, the OTS, the FDIC and the Board of Governors of the
Federal Reserve. The indemnification provided for in this paragraph
(a) shall not be applicable with respect to any loss, liability,
claim, damage, or expense whatsoever if it is determined by final
judgment of a court having jurisdiction over the matter that such
loss, liability, claim, damage or expense was primarily a result of
the Agent's willful misconduct or gross negligence.
(b) The Agent agrees to indemnify and hold harmless the Company, the MHC
and the Bank, their directors and officers and each person, if any,
who controls the Company, the MHC or the Bank 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 Company, the MHC, the Bank,
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 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 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 MHC Application (or any
amendment or supplement thereto), the MHC Notice (as any amendment or
38
supplement thereto), the Holding Company Application, the preliminary
or final Prospectus (or any amendment or supplement thereto), any Blue
Sky Application or Sales Information, (ii) 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, or (iii) arise from any theory of liability
whatsoever relating to or arising from or based upon the Registration
Statement (or any amendment or supplement thereto), preliminary or
final Prospectus (or any amendment or supplement thereto), the MHC
Application (or any amendment or supplement thereto), the Holding
Company Application, or any Blue Sky Application or Sales Information
or other documentation distributed in connection with the
Reorganization; 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, the
Registration Statement (or any amendment or supplement thereto), the
preliminary or final Prospectus (or any amendment or supplement
thereto), the MHC Application (or any amendment or supplement
thereto), the MHC Notice (or any amendment or supplement thereto), or
any Blue Sky Application or Sales Information in reliance upon and in
conformity with information furnished in writing to the Company, the
MHC or the Bank by the Agent or its counsel regarding the Agent,
provided, that it is agreed and understood that the only information
furnished in writing to the Company, the MHC or the Bank by the Agent
regarding the Agent is set forth in the Prospectus under the caption
"The Reorganization and Stock Issuance--Marketing Arrangements". The
indemnification provided for in this Section 8 (b) shall not be
applicable with respect to any loss, liability, claim, damage, or
expense whatsoever if it is determined by final judgment of a court
having jurisdiction over the matter that such loss, liability, claim,
damage or expense was primarily a result of the Company's, the MHC's
or the Bank's willful misconduct or gross negligence.
(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
39
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 contained in this Section 8 and in Section 9 hereof and
the representations and warranties of the Company, the MHC and the
Bank 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 agent or their officers, directors or controlling persons,
agent or employees or by or on behalf of the Company, the MHC or the
Bank or any officers, directors or controlling persons, agent or
employees of the Company, the MHC or the Bank; (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 Company, the MHC, the Bank or the Agent, the
Company, the MHC, the Bank 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 Company, the MHC, the Bank 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 represented by the percentage that the fees paid to the Agent pursuant
to Section 2 of this Agreement (not including expenses) bears to the gross
proceeds received by the Company from the sale of the Shares in the Offering,
and the Company, the MHC and the Bank 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 Company, the MHC and the Bank 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
Company, the MHC and the Bank on the one hand and the Agent on the other from
the
40
Offering (before deducting expenses). 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 or alleged omission to state a material fact
relates to information supplied by the Company, the MHC and/or the Bank 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 Company, the MHC, the Bank 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 liable for any
loss, liability, claim, damage or expense or 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 1933
Act) shall be entitled to contribution from any person who was not found guilty
of such fraudulent misrepresentation. The obligations of the Company, the MHC
and the Bank under this Section 9 and under Section 8 shall be in addition to
any liability which the Company and the Bank may otherwise have. For purposes of
this Section 9, each of the Agent's, the Company's, the MHC or the Bank's
officers and directors and each person, if any, who controls the Agent or the
Company or the MHC or the Bank within the meaning of the 1933 Act and the 1934
Act shall have the same rights to contribution as the Agent, the Company, the
MHC or the Bank. 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, will 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 otherwise than under this Section 9.
Section 10. Survival of Agreements, Representations and Indemnities. The
respective indemnities of the Company, the MHC, the Bank and the Agent and the
representations and warranties and other statements of the Company, the MHC, the
Bank 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 Company,
the MHC, the Bank or any controlling person referred to in Section 8 hereof, and
shall survive the issuance of the Shares, and any successor or assign of the
Agent, the Company, the MHC, the Bank, and any such controlling person shall be
entitled to the benefit of the respective agreements, indemnities, warranties
and representations.
41
Section 11. Termination. The Agent may terminate this Agreement by giving
the notice indicated below in this Section 11 at any time after this Agreement
becomes effective as follows:
(a) In the event the Company fails to sell the required minimum number of
the Shares by June 30, 1999, and in accordance with the provisions of
the Plan or as required by the MHC Regulations, and applicable law,
this Agreement shall terminate upon refund by the Company 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 for payment
by the Company, the MHC and/or the Bank as set forth in Sections 2(a),
6, 8 and 9 hereof.
(b) 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 cancelled by the Agent by notifying the
Company, the MHC and the Bank of such cancellation in writing or by
telegram 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(a), 6, 8 and 9
hereof.
(c) If the Agent elects to terminate this Agreement as provided in this
Section, the Company, the MHC and the Bank shall be notified promptly
by telephone or telegram, confirmed by letter.
The Company, the MHC and the Bank may terminate this Agreement in the event
the Agent is in material breach of the representations and warranties or
covenants contained in Section 5 and such breach has not been cured after the
Company, the MHC and the Bank have provided Xxxx with notice of such breach.
This Agreement may also be terminated by mutual written consent of the
parties hereto.
Section 12. Notices. All communications hereunder, except as herein
otherwise specifically provided, shall be mailed in writing and if sent to the
Agent shall be mailed, delivered or telegraphed and confirmed to Xxxxxxx Xxxx &
Company, a Division of Xxxxx, Xxxxxxxx & Xxxxx, Inc., 000 Xxxxxxxxx, Xxxxxx,
Xxxx 00000- 0000, Attention: Xxxxxxxx X. XxXxxxx, Executive Vice President (with
a copy to Xxxxx, Xxxx, Xxxxxxx & Xxxxxxx, L.L.P., Attention: Xxxxx X. Xxxxxxxx,
Esq.) and, if sent to the Company, the MHC and the Bank, shall be mailed,
delivered or telegraphed and confirmed to the Company, the MHC and the Bank at
000 Xxxxxx Xxxxxx, Xxxxxx, Xxxxxx 00000, Attention: Xxxx X. Xxxxx, President
(with a copy to Silver, Xxxxxxxx & Xxxx, L.L.P., Attention: Xxxxx X. Xxxxxxxxx,
Esq.).
42
Section 13. Parties. The Company, the MHC and the Bank shall be entitled to
act and rely on any request, notice, consent, waiver or agreement purportedly
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 Company, the MHC
or the Bank, when the same shall have been given by the undersigned or any other
officer of the Company, the MHC or the Bank. This Agreement shall inure solely
to the benefit of, and shall be binding upon, the Agent, the Company, the MHC,
the Bank, and their respective successors 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. It is understood and agreed that this Agreement is the exclusive
agreement among the parties hereto, and supersedes any prior agreement among the
parties and may not be varied except in writing signed by all the parties.
Section 14. Closing. The closing for the sale of the Shares shall take
place on the Closing Date at such location as mutually agreed upon by the Agent
and the Company, the MHC and the Bank. At the closing, the Company, the MHC and
the Bank shall deliver to the Agent in next day funds the commissions, fees and
expenses due and owing to the Agent as set forth in Sections 2 and 6 hereof and
the opinions and certificates required hereby and other documents deemed
reasonably necessary by the Agent shall be executed and delivered to effect the
sale of the Shares as contemplated hereby and pursuant to the terms of the
Prospectus.
Section 15. Partial Invalidity. In the event that any term, provision or
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.
Section 16. Construction. This Agreement shall be construed in accordance
with the laws of the State of Kansas.
Section 17. Counterparts. This Agreement may be executed in separate
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 Company,
the MHC, the Bank 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.
Section 18. Entire Agreement. This Agreement, including schedules and
exhibits hereto, which are integral parts hereof and incorporated as though set
forth in full, constitutes the entire agreement between the parties pertaining
to the subject matter hereof superseding any and all prior or contemporaneous
oral or prior written agreements, proposals, letters of intent and
understandings,
43
and cannot be modified, changed, waived or terminated except by a writing which
expressly states that it is an amendment, modification or waiver, refers to this
Agreement and is signed by the party to be charged. No course of conduct or
dealing shall be construed to modify, amend or otherwise affect any of the
provisions hereof.
Very truly yours,
CAPITOL FEDERAL FINANCIAL CAPITOL FEDERAL SAVINGS
AND LOAN ASSOCIATION
By Its Authorized Representative: By Its Authorized Representative:
--------------------------------- ---------------------------------
Xxxx X. Xxxxx Xxxx X. Xxxxx
Chairman Chairman
CAPITOL FEDERAL SAVINGS, MHC
By Its Authorized Representative:
---------------------------------
Xxxx X. Xxxxx
Chairman
Accepted as of the date first above written
Xxxxxxx Xxxx & Company, a Division
Xxxxx, Xxxxxxxx & Xxxxx, Inc.
By Its Authorized Representative:
---------------------------------
Xxxxxxxx X. XxXxxxx
Executive Vice President
44
