Trident Securities, Inc.
Sales Agency Agreement
Page 0
Xxxxx Xxxxxxxxx Xxxxxxx
__________ to __________ Shares
Common Stock
(Par Value $.01 Per Share)
$10.00 Per Share
SALES AGENCY AGREEMENT
Trident Securities, Inc.
0000 Xxx Xxxxx Xxxx, Xxxxx 000
Xxxxxxx, Xxxxx Xxxxxxxx 00000
Dear Sirs:
Union Community Bancorp, an Indiana corporation (the "Company"), and
Union Federal Savings and Loan Association, a federally-chartered and federally
insured mutual savings and loan association (the "Association"), hereby confirm,
as of __________, 1997, their respective agreements with Trident Securities,
Inc. ("Trident"), a broker-dealer registered with the Securities and Exchange
Commission ("Commission") and a member of the National Association of Securities
Dealers, Inc.
("NASD"), as follows:
1. Introductory. The Association intends to convert from a
federally-chartered mutual savings association to a federally-chartered stock
savings association as a wholly owned subsidiary of the Company (together with
the Offerings, as defined below, the issuance of shares of common stock of the
Association to the Company and the incorporation of the Company, the
"Conversion") pursuant to a plan of conversion adopted on June 2, 1997 (the
"Plan"). In accordance with the Plan, the Company is offering shares of its
common stock, with no par value (the "Shares" and the "Common Stock"), pursuant
to nontransferable subscription rights in a subscription offering (the
"Subscription Offering") to certain depositors of the Association and the
Association's tax-qualified employee benefit plans (i.e., the Association's
Employee Stock Ownership Plan (the "ESOP")). Shares of the Common Stock not sold
in the Subscription Offering may be offered to the general public in a community
offering (the "Community Offering", and together with the Subscription Offering
the "Offerings"), subject to the right of the Company and the Association, in
their absolute discretion, to reject orders in the Community Offering in whole
or in part. It is anticipated that shares of the Common Stock not otherwise
subscribed for in the Subscription and Community Offerings may be offered at the
discretion of the Company to certain members of the general public as part of a
community offering on a best efforts basis by a selling group of selected
broker-dealers to be managed by Trident Securities, Inc. (the "Syndicated
Community Offering"). In the Offerings, the Company is offering between
1,700,000 and 2,300,000 shares, with the possibility of offering up to 2,645,000
Shares without a resolicitation of subscribers. No Eligible Account Holder,
Supplemental Account
Trident Securities, Inc.
Sales Agency Agreement
Page 2
Holder or Other Member may purchase in his capacity as such more than 10,000
shares of Common Stock in the Subscription Offering. No individual person or
other entity, together with associates of and persons acting in concert with
such person, may purchase in the Community Offering and the Syndicated Community
Offering more than 20,000 shares of Common Stock. No person, individually or
together with associates of and persons acting in concert with such person, may
purchase more than 20,000 shares of Common Stock in the Conversion.
The Company and the Association have been advised by Trident that it
will utilize its best efforts in assisting the Company and the Association with
the sale of the Shares in the Offerings and, if deemed necessary by the Company,
in a syndicated community offering. Prior to the execution of this Agreement,
the Company has delivered to Trident the Prospectus dated ___________, 1997 (as
hereinafter defined) and all supplements thereto to be used in the Offerings.
Such Prospectus contains information with respect to the Company, the
Association and the Shares.
2. Representations and Warranties.
(a) The Company and the Association jointly and severally
represent and warrant to Trident that:
(i) The Company has filed with the Commission a
registration statement, including exhibits and an amendment or
amendments thereto, on Form S-1 (No. 333- _____), including a
Prospectus relating to the Offerings, for the registration of
the Shares under the Securities Act of 1933, as amended (the
"Act"); and such registration statement has become effective
under the Act and no stop order has been issued with respect
thereto and no proceedings therefor have been initiated or, to
the Company's best knowledge, threatened by the Commission.
Except as the context may otherwise require, such registration
statement, as amended or supplemented, on file with the
Commission at the time the registration statement became
effective, including the Prospectus, financial statements,
schedules, exhibits and all other documents filed as part
thereof, as amended and supplemented, is herein called the
"Registration Statement," and the prospectus, as amended or
supplemented, on file with the Commission at the time the
Registration Statement became effective is herein called the
"Prospectus," except that if the prospectus filed by the
Company with the Commission pursuant to Rule 424(b) of the
general rules and regulations of the Commission under the Act
(together with the enforceable published policies and actions
of the Commission thereunder, the "SEC Regulations") differs
from the form of prospectus on file at the time the
Registration Statement became effective, the term "Prospectus"
shall refer to the Rule 424(b) prospectus from and after the
time it is filed with or mailed for filing to the Commission
and shall include any amendments
Trident Securities, Inc.
Sales Agency Agreement
Page 3
or supplements thereto from and after their dates of
effectiveness or use, respectively. If any Shares remain
unsubscribed following completion of the Subscription Offering
and the Community Offering, the Company (i) will, if required
by the SEC Regulations, promptly file with the Commission a
post-effective amendment to such Registration Statement
relating to the results of the Subscription and the Community
Offerings, any additional information with respect to the
proposed plan of distribution and any revised pricing
information or (ii) if no such post-effective amendment is
required, will file with, or mail for filing to, the
Commission a prospectus or prospectus supplement containing
information relating to the results of the Subscription and
Community Offerings and pricing information pursuant to Rule
424(c) of the Regulations, in either case in a form reasonably
acceptable to the Company and Trident.
(ii) The Association has filed an Application for
Approval of Conversion including exhibits (as amended or
supplemented, the "Conversion Application" with the Office of
Thrift Supervision ("OTS") under the Home Owners' Loan Act
(the "HOLA") and the rules and regulations promulgated
thereunder, which has been approved by the OTS; and the
Prospectus and the proxy statement for the solicitation of
proxies from members for the special meeting to approve the
Plan (the "Proxy Statement") included as part of the
Conversion Application have been approved for use by the OTS.
No order has been issued by the OTS preventing or suspending
the use of the Prospectus or the Proxy Statement; and no
action by or before the OTS revoking such approvals is, to the
Association's best knowledge, pending or threatened.
(iii) The Company has filed with the OTS a holding
company application on Form H(e)-1s (the "H(e)-1s") under the
HOLA and the regulations promulgated thereunder and shall
receive approval of its acquisition of the Association from
the OTS prior to closing.
(iv) At the date of the Prospectus and at all times
subsequent thereto through and including the Closing Date (i)
the Registration Statement and the Prospectus (as amended or
supplemented, if amended or supplemented) complied with the
Act and the SEC Regulations, (ii) the Registration Statement
(as amended or supplemented, if amended or supplemented) did
not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or
necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading,
(iii) the Prospectus (as amended or supplemented, if amended
or supplemented) did not contain any untrue statement of a
material fact or omit to state any material fact required to
be stated therein or necessary to make
Trident Securities, Inc.
Sales Agency Agreement
Page 4
the statements therein, in light of the circumstances under
which they were made, not misleading, and (iv) the Conversion
Application was complete and did not contain an untrue
statement 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. Representations or warranties in this subsection
shall not apply to statements or omissions made in reliance
upon and in conformity with written information furnished to
the Company or the Association relating to Trident by or on
behalf of Trident expressly for use in the Registration
Statement or Prospectus.
(v) The Company has been duly incorporated as an
Indiana corporation and the Association has been duly
organized as a mutual savings Association under the laws of
the United States of America, and each of them is validly
existing and in good standing under the laws of the
jurisdiction of its organization with full power and authority
to own its property and conduct its business as described in
the Registration Statement and Prospectus; the Association is
a member in good standing of the Federal Home Loan Bank of
Indianapolis; and the deposit accounts of the Association are
insured by the Savings Association Insurance Fund ("SAIF")
administered by the Federal Deposit Insurance Corporation
("FDIC") up to the applicable legal limits. The Company is
qualified to do business in the state of Indiana. Neither the
Company nor the Association is required to be qualified to do
business as a foreign corporation in any jurisdiction where
non-qualification would have a material adverse effect on the
operations of the Company and the Association, taken as a
whole. The Association does not own equity securities of or an
equity interest in any business enterprise other than the
Company and the Association's wholly owned service
corporation. Upon amendment of the Association's charter and
bylaws to read in the form of a federal stock charter as
provided in the HOLA and the rules and regulations promulgated
thereunder and completion of the sale by the Company of the
Shares as contemplated by the Prospectus, (i) the Association
will be converted pursuant to the Plan to a
federally-chartered capital stock savings Association with
full power and authority to own its property and conduct its
business as described in the Prospectus, (ii) all of the
authorized and outstanding capital stock of the Association
will be owned of record and beneficially by the Company, and
(iii) the Company will have no direct subsidiaries other than
the Association.
(vi) The Association has good and marketable title to
all assets material to its business and to those assets
described in the Prospectus as owned by it, free and clear of
all material liens, charges, encumbrances or restrictions,
except for liens for taxes not yet due, except as described in
the Prospectus and except as could not in the aggregate have a
material adverse effect upon the operations or financial
condition of
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Sales Agency Agreement
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the Company and the Association taken as a whole; and all of
the leases and subleases material to the operations or
financial condition of the Association, under which it holds
properties, including those described in the Prospectus, are
in full force and effect as described therein.
(vii) The execution and delivery of this Agreement
and the consummation of the transactions contemplated hereby
have been duly and validly authorized by all necessary actions
on the part of each of the Company and the Association, and
this Agreement is a valid and binding obligation with valid
execution and delivery by each of the Company and the
Association, enforceable in accordance with its terms (except
as the enforceability thereof may be limited by bankruptcy,
insolvency, moratorium, reorganization or similar laws
relating to or affecting the enforcement of creditors' rights
generally or the rights of creditors of Association 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 that the provisions
of Sections 8 and 9 hereof may be unenforceable as against
public policy or pursuant to Section 23A of the Federal
Reserve Act, 12 U.S.C. Section 371c ("Section 23A")).
(viii) Except as described in the Prospectus, there
is no litigation or governmental proceeding pending or, to the
best knowledge of the Company or the Association, threatened
against or involving the Company, the Association or any of
their respective assets which individually or in the aggregate
would reasonably be expected to have a material adverse effect
on the condition (financial or otherwise), results of
operations and business, including the assets and properties,
of the Company and the Association, taken as a whole.
(ix) The Company and the Association have received
the opinion of Xxxxxx & Xxxxxxxxx to the effect that the
Conversion will constitute a tax-free reorganization under the
Internal Revenue Code of 1986, as amended, and the opinion of
Geo. Olive & Co. LLC to the effect that the Conversion will
not be a taxable transaction for the Company or the
Association under the income tax laws of Indiana. The facts
relied upon in such opinions are accurate and complete.
(x) Each of the Company and the Association has all
such corporate power, authority, authorizations, approvals and
orders as may be required to enter into this Agreement and to
carry out the provisions and conditions hereof, subject to the
limitations set forth herein and subject to the satisfaction
of certain conditions imposed by the OTS in connection with
its approval of the Conversion Application and the H(e)-1s
application, and except as may be required under the
securities, or
Trident Securities, Inc.
Sales Agency Agreement
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"blue sky," laws of various jurisdictions, and in the case of
the Company, as of the Closing Date, will, to the best
knowledge of the Association, have such approvals and orders
to issue and sell the Shares to be sold by the Company as
provided herein, and in the case of the Association, as of the
Closing Date, will, to the best knowledge of the Company, have
such approvals and orders to issue and sell the Shares of its
Common Stock to be sold to the Company as provided in the
Plan, subject to the issuance of an amended charter in the
form required for federally-chartered stock savings
Association (the "Stock Charter"), the form of which Stock
Charter has been approved by the OTS.
(xi) To the best knowledge of the Company and the
Association, neither the Company nor the Association is in
violation of any rule or regulation of the OTS or FDIC that
could reasonably be expected to result in any enforcement
action against the Company, the Association or their
respective officers or directors that could reasonably be
expected to have a material adverse effect on the condition
(financial or otherwise), operations, businesses, assets or
properties of the Company and the Association, taken as a
whole.
(xii) The financial statements and any related notes
or schedules which are included in the Registration Statement
and the Prospectus fairly present the financial condition,
income, retained earnings and cash flows of the Association at
the respective dates thereof and for the respective periods
covered thereby and comply as to form with the applicable
accounting requirements of the SEC Regulations and the
applicable accounting regulations of the OTS. Such financial
statements have been prepared in accordance with generally
accepted accounting principles consistently applied throughout
the periods involved, except as set forth therein, and such
financial statements are consistent with financial statements
and other reports filed by the Association with supervisory
and regulatory authorities except as such generally accepted
accounting principles may otherwise require. The tables in the
Prospectus accurately present the information purported to be
shown thereby at the respective dates thereof and for the
respective periods therein.
(xiii) There has been no material change in the
condition (financial or otherwise), results of operations or
business, including assets and properties, of the Company and
the Association, taken as a whole, since the latest date as of
which such condition is set forth in the Prospectus, except as
set forth therein; and the capitalization, assets, properties
and business of each of the Company and the Association
conform in all material respects to the descriptions thereof
contained in the Prospectus. Neither the Company nor the
Association has any material liabilities of any kind,
contingent or otherwise, except as set forth in the
Prospectus.
Trident Securities, Inc.
Sales Agency Agreement
Page 7
(xiv) There has been no breach or default (or the
occurrence of any event which, with notice or lapse of time or
both, would constitute a default) under, or creation or
imposition of any lien, charge or other encumbrance upon any
of the properties or assets of the Company or the Association
pursuant to any of the terms, provisions or conditions of, any
agreement, contract, indenture, bond, debenture, note,
instrument or obligation to which the Company or the
Association is a party or by which any of them or any of their
respective assets or properties may be bound or is subject, or
violation of any governmental license or permit or any
enforceable published law, administrative regulation or order
or court order, writ, injunction or decree, which breach,
default, encumbrance or violation would have a material
adverse effect on the condition (financial or otherwise),
operations, business, assets or properties of the Company and
the Association taken as a whole; all agreements which are
material to the condition (financial or otherwise), results of
operations or business of the Company and the Association
taken as a whole are in full force and effect, and no party to
any such agreement has instituted or, to the best knowledge of
the Company and the Association, threatened any action or
proceeding wherein the Company or the Association would be
alleged to be in default thereunder.
(xv) Neither the Company nor the Association is in
violation of its respective Articles of Incorporation, charter
or bylaws. The execution and delivery hereof and the
consummation of the transactions contemplated hereby by the
Company and the Association do not conflict with or result in
a breach of the Articles of Incorporation, charter or bylaws
of the Company or the Association (in either mutual or stock
form) or constitute a material breach of or default (or an
event which, with notice or lapse of time or both, would
constitute a default) under, give rise to any right of
termination, cancellation or acceleration contained in, or
result in the creation or imposition of any lien, charge or
other encumbrance upon any of the properties or assets of the
Company or the Association pursuant to any of the terms,
provisions or conditions of, any material agreement, contract,
indenture, bond, debenture, note, instrument or obligation to
which the Company or the Association is a party or violate any
governmental license or permit or any enforceable published
law, administrative regulation or order or court order, writ,
injunction or decree (subject to the satisfaction of certain
conditions imposed by the Director of the OTS in connection
with his approval of the Conversion Application or the
H(e)-1s), which breach, default, encumbrance or violation
would have a material adverse effect on the condition
(financial or otherwise), operations or business of the
Company and the Association taken as a whole.
Trident Securities, Inc.
Sales Agency Agreement
Page 8
(xvi) Subsequent to the respective dates as of which
information is given in the Registration Statement and
Prospectus and prior to the Closing Date (as hereinafter
defined), except as otherwise may be indicated or contemplated
therein (including any judgment resulting from litigation
described in the Prospectus), neither the Company nor the
Association has issued any securities which will remain issued
at the Closing Date or incurred any liability or obligation,
direct or contingent, or borrowed money, except liabilities,
obligations or borrowings in the ordinary course of business,
or entered into any other transaction not in the ordinary
course of business and consistent with prior practices, which
is material in light of the business of the Company and the
Association, taken as a whole.
(xvii) Upon consummation of the Conversion, the
authorized, issued and outstanding equity capital of the
Company shall be within the range as set forth in the
Prospectus under the caption "Capitalization," and no Common
Stock of the Company shall be outstanding immediately prior to
the Closing Date (other than any such shares held by the
Association); the issuance and the sale of the Shares of the
Company have been duly authorized by all necessary action of
the Company and approved by the OTS, and, when issued in
accordance with the terms of the Plan and paid for, shall be
validly issued, fully paid and nonassessable and shall conform
to the description thereof contained in the Prospectus; the
issuance of the Shares is not subject to preemptive rights;
and purchasers of the Shares from the Company, upon issuance
thereof against payment therefor, will acquire such Shares
free and clear of all claims, encumbrances, security interests
and liens against the Company whatsoever. The certificates
representing the Shares will conform in all material respects
with the requirements of applicable laws and regulations. The
issuance and sale of the capital stock of the Association to
the Company has been duly authorized by all necessary action
of the Association and the Company and appropriate regulatory
authorities (subject to the satisfaction of various conditions
imposed by the OTS in connection with its approval of the
Conversion Application and H(e)-1s, and such capital stock,
when issued in accordance with the terms of the Plan, will be
fully paid and nonassessable and will conform in all material
respects to the description thereof contained in the
Prospectus.
(xviii) 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 declaration of effectiveness of any
required post-effective amendment by the Commission and
approval thereof by the OTS and approval of the Company's
application on H(e)-1s by the OTS, the issuance of the Stock
Charter by the OTS and as may be required under the securities
laws of various jurisdictions.
Trident Securities, Inc.
Sales Agency Agreement
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(xix) All contracts and other documents required to
be filed as exhibits to the Registration Statement or the
Conversion Application and the H(e)-1s have been filed with
the Commission and the OTS, as the case may be.
(xx) Geo. S. Olive & Co. LLC which has audited the
financial statements of the Association at December 31, 1996
and 1995 and for the years ended December 31, 1996 and 1995
included in the Prospectus and K.B. Xxxxxxx & Co. which has
audited the financial statements of the Bank for the year
ended December 31, 1994, are independent public accountants
within the meaning of the Code of Professional Ethics of the
American Institute of Certified Public Accountant.
(xxi) The Company and the Association have timely
filed all required federal, state and local franchise tax
returns, and no deficiency has been asserted with respect to
such returns by any taxing authorities, and the Company and
the Association have paid all taxes that have become due and,
to the best of their knowledge, have made adequate reserves
for similar future tax liabilities, except where any failure
to make such filings, payments and reserves, or the assertion
of such a deficiency, would not have a material adverse effect
on the condition of the Company and the Association, taken as
a whole or in the case of taxes which the Association is
contesting in good faith.
(xxii) To the best knowledge of the Company and the
Association, all of the loans represented as assets of the
Association on the most recent financial statements of the
Association included in the Prospectus meet or are exempt from
all requirements of federal, state or local law pertaining to
lending, including without limitation truth in lending
(including the requirements of Regulation Z and 12 C.F.R. Part
226 and Section 563.99), real estate settlement procedures,
consumer credit protection, equal credit opportunity and all
disclosure laws applicable to such loans, except for
violations which, if asserted, would not have a material
adverse effect on the Company and the Association, taken as a
whole.
(xxiii) The records of account holders, depositors,
borrowers and other members of the Association delivered to
Trident by the Association or its agent for use during the
Conversion have been prepared or reviewed by the Association
and, to the best knowledge of the Company and the Association,
are reliable and accurate.
(xxiv) None of the Company, the Association or the
employees of the Company or the Association, has made any
payment of funds to the Company or the Association prohibited
by law, and no funds of the Company or the Association have
been set aside to be used for any payment prohibited by law.
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Sales Agency Agreement
Page 10
(xxv) To the best knowledge of the Company or the
Association, there are no actions, suits, regulatory
investigations or other proceedings pending or, to the best
knowledge of the Company or the Association, threatened
against the Company or the Association relating to
environmental protection. To the best knowledge of the Company
and the Association, no disposal, release or discharge of
hazardous or toxic substances, pollutants or contaminants,
including petroleum and gas products, as any of such terms may
be defined under federal, state or local law, has been caused
by the Company or the Association or, to the best knowledge of
the Company or the Association, has occurred on, in or at any
of the facilities or properties of the Company or the
Association, except such disposal, release or discharge which
would not have a material adverse effect on the Company or the
Association, taken as a whole.
(xxvi) At the Closing Date, the Company and the
Association will have completed the conditions precedent to,
and shall have conducted the Conversion in all material
respects in accordance with, the Plan, the HOLA and
regulations promulgated thereunder and all other applicable
laws, regulations, published decisions and orders, including
all terms, conditions, requirements and provisions precedent
to the Conversion imposed by the OTS.
(b) Trident represents and warrants to the Company and the
Association that:
(i) Trident is registered as a broker-dealer with the
Commission, and is in good standing with the Commission and
the NASD.
(ii) Trident is validly existing as a corporation in
good standing under the laws of _____________ and is licensed
to conduct business in the State of Indiana, with full
corporate power and authority to provide the services to be
furnished to the Company and the Association hereunder.
(iii) The execution and delivery of this Agreement
and the consummation of the transactions contemplated hereby
have been duly and validly authorized by all necessary action
on the part of Trident, and this Agreement is a legal, valid
and binding obligation of Trident, enforceable in accordance
with its terms (except as the enforceability thereof may be
limited by Bankruptcy, insolvency, moratorium, reorganization
or similar laws relating to or affecting the enforcement of
creditors' rights generally or the rights of creditors of
registered broker-dealers accounts of whose may be protected
by the Securities Investor Protection Corporation or by
general equity principles, regardless of whether such
enforceability is considered in a proceeding in equity or at
law, and except to the extent that the provisions of
Trident Securities, Inc.
Sales Agency Agreement
Page 11
Sections 8 and 9 hereof may be unenforceable as against public
policy or pursuant to Section 23A).
(iv) Each of Trident and, to Trident's knowledge, its
employees, agents and representatives who shall perform any of
the services required hereunder to be performed by Trident
shall be duly authorized and shall have all licenses,
approvals and permits necessary to perform such services, and
Trident is a registered selling agent in the jurisdictions in
which the Common Stock is to be offered and sold and will
remain registered in such jurisdictions in which the Company
is relying on such registration for the sale of the Shares,
until the Conversion is consummated or terminated.
(v) The execution and delivery of this Agreement by
Trident, the fulfillment of the terms set forth herein and the
consummation of the transactions contemplated hereby shall not
violate or conflict with the corporate charter or bylaws of
Trident or violate, conflict with or constitute a breach of,
or default (or an event which, with notice or lapse of time,
or both, would constitute a default) under, any material
agreement, indenture or other instrument by which Trident is
bound or under any governmental license or permit or any law,
administrative regulation, authorization, approval or order or
court decree, injunction or order.
(vi) Any funds received by Trident to purchase Common
Stock will be handled in accordance with Rule 15c2-4 under the
Securities Exchange Act of 1934, as amended (the "Exchange
Act").
(vii) There is not now pending or, to Trident's
knowledge, threatened against Trident any action or proceeding
before the Commission, the NASD, any state securities
commission or any state or federal court concerning Trident's
activities as a broker-dealer.
3. Employment of Trident; Sale and Delivery of the Shares. On the basis
of the representations and warranties herein contained, but subject to the terms
and conditions herein set forth, the Company and the Association hereby employ
Trident as their agent to utilize its best efforts in assisting the Company with
the Company's sale of the Shares in the Subscription Offering and Community
Offering. The employment of Trident hereunder shall terminate (a) forty-five
(45) days after the Offerings close, unless the Company and the Association,
with the approval of the OTS, are permitted to extend such period of time, or
(b) upon consummation of the Conversion, whichever date shall first occur.
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Sales Agency Agreement
Page 12
In the event the Company is unable to sell a minimum of 1,700,000
Shares (or such lesser amount as the OTS may permit) within the period herein
provided, this Agreement shall terminate, and the Company and the Association
shall refund promptly to any persons who have subscribed for any of the Shares,
the full amount which it may have received from them, together with interest as
provided in the Prospectus, and no party to this Agreement shall have any
obligation to the other party hereunder, except as set forth in Sections 6, 8(a)
and 9 hereof. Appropriate arrangements for placing the funds received from
subscriptions for Shares in special interest-bearing accounts with the
Association until all Shares are sold and paid for were made prior to the
commencement of the Subscription Offering, with provision for prompt refund to
the purchasers as set forth above, or for delivery to the Company if all Shares
are sold.
If all conditions precedent to the consummation of the Conversion are
satisfied, including the sale of all Shares required by the Plan to be sold, the
Company agrees to issue or have issued such Shares and to release for delivery
certificates to subscribers thereof for such Shares on the Closing Date against
payment to the Company by any means authorized pursuant to the Prospectus, at
the principal office of the Company at 000 X. Xxxx Xxxxxx, Xxxxxxxxxxxxxx,
Xxxxxxx 00000-0000 or at such other place as shall be agreed upon between the
parties hereto. The date upon which Trident is paid the compensation due
hereunder is herein called the "Closing Date."
Trident agrees either (a) upon receipt of executed order forms of
subscribers to forward, for deposit in a segregated account, the offering price
of the Common Stock ordered on or before twelve noon on the next business day
following receipt or execution of an order form by Trident to the Association or
(b) to solicit indications of interest in which event (i) Trident will
subsequently contact any potential subscriber indicating interest to confirm the
interest and give instructions to execute and return an order form or to receive
authorization to execute the order form on the subscriber's behalf, (ii) Trident
will mail acknowledgments of receipt of orders to each subscriber confirming
interest on the business day following such confirmation, (iii) Trident will
debit accounts of such subscribers on the third business day ("debit date")
following receipt of the confirmation referred to in (i), and (iv) Trident will
forward completed order forms together with such funds to the Association on or
before twelve noon on the next business day following the debit date for deposit
in a segregated account. Trident acknowledges that if the procedure in (b) is
adopted, subscribers' funds are not required to be in their accounts until the
debit date.
In addition to the expenses specified in Section 6 hereof, Trident
shall receive the following compensation for its services hereunder:
(a) Except for shares purchased by the Association's executive
officers, directors, employees and associates and by any employee
benefit plan, for which no commission shall be paid: (i) a commission
equal to 1.45% of the aggregate dollar amount of stock sold to
Trident Securities, Inc.
Sales Agency Agreement
Page 13
eligible account holders, supplemental eligible account holders and
other members and persons in the Community Offering; and (ii) a
commission to be agreed upon by Trident and the Company for Shares sold
by other member firms of the NASD through a selected dealers
arrangement (the "Selected Dealer Offering"). All such fees are to be
payable in next-day funds to Trident on the Closing Date.
(b) Trident shall be reimbursed for allocable expenses,
including but not limited to travel, communications, legal fees and
postage, incurred by it whether or not the Offerings are successfully
completed; provided, however, that reimbursable out-of-pocket expenses
and legal fees will not exceed $28,000. This limitation on reimbursable
expenses does not apply to expenses and legal fees incurred in
connection with any "blue sky" filing requirements. Neither the Company
nor the Association shall pay or reimburse Trident for any of the
foregoing expenses accrued after Trident shall have notified the
Company or the Association of its election to terminate this Agreement
pursuant to Section 11 hereof or after such time as the Company or the
Association shall have given notice in accordance with Section 12
hereof that Trident is in breach of this Agreement. Full payment to
defray Trident's reimbursable expenses shall be made in next-day funds
on the Closing Date or, if the Conversion is not completed and is
terminated for any reason, within ten (10) business days of receipt by
the Company of a written request from Trident for reimbursement of its
expenses. Trident acknowledges receipt of $7,500 advance payment from
the Association which shall be credited against the total reimbursement
due Trident hereunder.
The Company shall pay any stock issue and transfer taxes which may be
payable with respect to the sale of the Shares. The Company and the Association
shall also pay all reasonable expenses of the Conversion incurred by them or on
their prior approval including but not limited to their attorneys' fees, NASD
filing fees, and attorneys' fees relating to any required state securities laws
research and filings, telephone charges, air freight, rental equipment,
supplies, transfer agent charges, fees relating to auditing and accounting and
costs of printing all documents necessary in connection with the Conversion.
4. Offering. Subject to the provisions of Section 7 hereof, Trident is
assisting the Company on a best efforts basis in offering a minimum of 1,700,000
and a maximum of 2,300,000 Shares, with the possibility of offering up to
2,645,000 Shares (except as the OTS may permit to be decreased or increased) in
the Subscription and Community Offerings. The Shares are to be offered to the
public at the price set forth on the cover page of the Prospectus.
5. Further Agreements. The Company and the Association jointly and
severally covenant and agree that:
Trident Securities, Inc.
Sales Agency Agreement
Page 14
(a) The Company shall deliver to Trident, from time to time,
such number of copies of the Prospectus as Trident reasonably may
request. The Company authorizes Trident to use the Prospectus in any
lawful manner in connection with the offer and sale of the Shares.
(b) The Company will notify Trident immediately upon
discovery, and confirm the notice in writing, (i) when any
post-effective amendment to the Registration Statement becomes
effective or any supplement to the Prospectus has been filed, (ii) of
the issuance by the Commission of any stop order relating to the
Registration Statement or of the initiation or the threat of any
proceedings for that purpose, (iii) of the receipt of any notice with
respect to the suspension of the qualification of the Shares for
offering or sale in any jurisdiction, and (iv) of the receipt of any
comments (other than those of a non-substantive nature) from the staff
of the Commission relating to the Registration Statement. If the
Commission enters a stop order relating to the Registration Statement
at any time, the Company will make every reasonable effort to obtain
the lifting of such order at the earliest possible moment.
(c) During the time when a prospectus is required to be
delivered under the Act, the Company will comply so far as it is able
with all requirements imposed upon it by the Act, as now in effect and
hereafter amended, and by the SEC Regulations, as from time to time in
force, so far as necessary to permit the continuance of offers and
sales of or dealings in the Shares in accordance with the provisions
hereof and the Prospectus. If during the period when the Prospectus is
required to be delivered in connection with the offer and sale of the
Shares any event relating to or affecting the Company and the
Association, taken as a whole, shall occur as a result of which it is
necessary, in the opinion of counsel for Trident, with the concurrence
of counsel to the Company, to amend or supplement the Prospectus in
order to make the Prospectus not false or misleading in light of the
circumstances existing at the time it is delivered to a purchaser of
the Shares, the Company forthwith shall prepare and furnish to Trident
a reasonable number of copies of an amendment or amendments or of a
supplement or supplements to the Prospectus (in form and substance
satisfactory to counsel for Trident and counsel to the Company) which
shall amend or supplement the Prospectus so that, as amended or
supplemented, the Prospectus shall not contain an untrue statement of a
material fact or omit to state a material fact necessary in order to
make the statements therein, in light of the circumstances existing at
the time the Prospectus is delivered to a purchaser of the Shares, not
misleading. The Company will not file or use any amendment or
supplement to the Registration Statement or the Prospectus of which
Trident has not first been furnished a copy or to which Trident shall
reasonably object after having been furnished such copy. For the
purposes of this subsection the Company and the Association shall
furnish such information with respect to themselves as Trident from
time to time may reasonably request.
(d) The Company and the Association have taken or will take
all reasonable necessary action as may be required to qualify or
register the Shares for offer and sale by the
Trident Securities, Inc.
Sales Agency Agreement
Page 15
Company under the securities or blue sky laws of such jurisdictions as
Trident and the Company may agree upon; provided, however, that the
Company shall not be obligated to qualify as a foreign corporation to
do business under the laws of any such jurisdiction. In each
jurisdiction where such qualification or registration shall be
effected, the Company, unless Trident agrees that such action is not
necessary or advisable in connection with the distribution of the
Shares, shall file and make such statements or reports as are, or
reasonably may be, required by the laws of such jurisdiction.
(e) Appropriate entries will be made in the financial records
of the Association sufficient to establish a liquidation account for
the benefit of eligible account holders in accordance with the
requirements of the OTS.
(f) The Company will file a registration statement for the
Common Stock under Section 12(g) of the Exchange Act, prior to
completion of the stock offering pursuant to the Plan and shall request
that such registration statement be effective upon completion of the
Conversion. The Company shall maintain the effectiveness of such
registration for a minimum period of three years or for such shorter
period as may be required by applicable law.
(g) The Company will make generally available to its security
holders as soon as practicable, but not later than 90 days after the
close of the period covered thereby, an earnings statement (in form
complying with the provisions of Rule 158 of the regulations
promulgated under the Act) covering a twelve-month period beginning not
later than the first day of the Company's fiscal quarter next following
the effective date (as defined in said Rule 158) of the Registration
Statement.
(h) For a period of three (3) years from the date of this
Agreement (unless the Common Stock shall have been deregistered under
the Exchange Act), the Company will furnish to Trident, as soon as
publicly available after the end of each fiscal year, a copy of its
annual report to shareholders for such year; and the Company will
furnish to Trident (i) as soon as publicly available, a copy of each
report or definitive proxy statement of the Company filed with the
Commission under the Exchange Act or mailed to shareholders, and (ii)
from time to time, such other public information concerning the Company
as Trident may reasonably request.
(i) The Company shall use the net proceeds from the sale of
the Shares consistently with the manner set forth in the Prospectus.
(j) The Company shall not deliver the Shares until each and
every condition set forth in Section 7 hereof has been satisfied,
unless such condition is waived by Trident.
Trident Securities, Inc.
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(k) The Company shall advise Trident, if necessary, as to the
allocation of deposits, in the case of eligible account holders and
votes, in the case of other members, and of the Shares in the event of
an oversubscription and shall provide Trident final instructions as to
the allocation of the Shares ("Allocation Instructions") in such event
and such information shall be accurate and reliable. Trident shall be
entitled to rely on such instructions and shall have no liability in
respect of its reliance thereon, including without limitation, no
liability for or related to any denial or grant of a subscription in
whole or in part.
(l) The Company and the Association will take such actions and
furnish such information as are reasonably requested by Trident in
order for Trident to ensure compliance with the NASD's "Interpretation
Relating to Free-Riding and Withholding."
6. Payment of Expenses. Whether or not the Conversion is consummated,
the Company and the Association shall pay or reimburse Trident for (a) all
filing fees paid or incurred by Trident in connection with all filings with the
NASD with respect to the Subscription and Community Offerings and, (b) if the
Company is unable to sell a minimum of 1,700,000 Shares or such lesser amount as
the OTS may permit or the Conversion is otherwise terminated, the Company and
the Association shall reimburse Trident for allocable expenses incurred by
Trident relating to the offering of the Shares as provided in Section 3 hereof;
provided, however, that neither the Company nor the Association shall pay or
reimburse Trident for any of the foregoing expenses accrued after Trident shall
have notified the Company or the Association of its election to terminate this
Agreement pursuant to Section 11 hereof or after such time as the Company or the
Association shall have given notice in accordance with Section 12 hereof that
Trident is in breach of this Agreement.
7. Conditions of Trident's Obligations. Except as may be waived by
Trident, the obligations of Trident as provided herein shall be subject to the
accuracy of the representations and warranties contained in Section 2 hereof as
of the date hereof and as of the Closing Date, to the performance by the Company
and the Association of their obligations hereunder and to the following
conditions:
(a) At the Closing Date, Trident shall receive the favorable
opinion of Xxxxxx & Xxxxxxxxx, special counsel for the Company and the
Association, dated the Closing Date, addressed to Trident, in form and
substance reasonably satisfactory to counsel for Trident and to the
effect that:
(i) the Company has been duly incorporated and is
validly existing as a corporation under the laws of the State
of Indiana, and the Association is validly existing as a
savings Association in mutual form under the laws of the
United States, each with full corporate power and authority to
own its properties and conduct its business as described in
the Prospectus;
Trident Securities, Inc.
Sales Agency Agreement
Page 17
(ii) the Association is a member of the Federal Home
Loan Bank of Indianapolis, and the deposit accounts of the
Association are insured by the SAIF up to the applicable legal
limits;
(iii) to the Actual Knowledge of such counsel, the
activities of the Association as such activities are described
in the Prospectus are permitted under federal and Indiana law
to subsidiaries of an Indiana business corporation and the
activities of the Association's wholly-owned service
corporation as described in the Prospectus are permitted for a
service corporation of a federal savings association under the
HOLA;
(iv) the Plan complies with, and to such counsel's
Actual Knowledge, the Conversion has been effected in all
material respects in accordance with, the HOLA and the
regulations promulgated thereunder (except with respect to the
securities or "blue sky" laws of various states and except for
compliance with post-Closing conditions in the OTS approvals
as to which no opinion need be rendered); to such counsel's
Actual Knowledge, all of the terms, conditions, requirements
and provisions with respect to the Plan and the Conversion
imposed by the OTS, except with respect to the Conversion
Application, the Prospectus and the Proxy Statement (which are
covered by clause (xix) below) and the filing or submission of
certain required post- Conversion reports or other materials
by the Company or the Association, have been complied with by
the Company and the Association in all material respects; and,
to the Actual Knowledge of such counsel, no person has sought
to obtain regulatory or judicial review of the final action of
the OTS in approving the Plan;
(v) the Company has authorized Common Stock as set
forth in the Registration Statement and the Prospectus, and
the description of such Common Stock in the Registration
Statement and the Prospectus is accurate in all material
respects;
(vi) the issuance and sale of the Shares have been
duly and validly authorized by all necessary corporate action
on the part of the Company; the Shares, upon receipt of
payment and issuance in accordance with the terms of the Plan
and this Agreement, will be validly issued, fully paid,
nonassessable and free of preemptive rights, and purchasers of
the Shares from the Company, upon issuance thereof against
payment therefor, will acquire such Shares free and clear of
all claims, encumbrances, security interests and liens created
by the Company;
(vii) the form of certificate used to evidence the
Shares is in proper form and complies in all material respects
with applicable Indiana law;
Trident Securities, Inc.
Sales Agency Agreement
Page 18
(viii) the issuance and sale of the capital stock of
the Association to the Company have been duly authorized by
all necessary corporate action of the Association and the
Company and have received the approval of the OTS, and such
capital stock, upon receipt of payment and issuance in
accordance with the terms of the Plan, will be validly issued,
fully paid and nonassessable and owned of record and, to the
Actual Knowledge of such counsel, beneficially by the Company;
(ix) subject to the satisfaction of the conditions to
the OTS's approval of the Conversion Application and H(e)-1s,
no further approval, authorization, consent or other order of
any federal regulatory agency or the OTS is required in
connection with the execution and delivery of this Agreement
and the consummation of the Conversion, except with respect to
the issuance to the Association of the Stock Charter by the
OTS, except as may be required under the "blue sky" laws of
various jurisdictions and except as may be required under the
rules and regulations of the NASD;
(x) to the Actual Knowledge of such counsel, the
Association has obtained all licenses, permits and other
governmental authorizations currently required for the conduct
of its business by federal laws and regulations as such
business is described in the Prospectus, all such licenses,
permits and other governmental authorizations are in full
force and effect and the Association is in all material
respects complying therewith, except where the failure to hold
such licenses, permits or governmental authorizations or the
failure to so comply would not have a material adverse effect
on the Company and the Association, taken as a whole;
(xi) to the Actual Knowledge of such counsel, there
are no material legal or governmental proceedings pending or
threatened against or involving the assets of the Company or
the Association (provided that for this purpose such counsel
need not regard any litigation or governmental procedure to be
"threatened" unless the potential litigant or government
authority has manifested to the management of the Company or
the Association, or to such counsel, a present intention to
initiate such litigation or proceeding);
(xii) to the Actual Knowledge of such counsel, the
execution and delivery of this Agreement and the consummation
of the Conversion by the Company and the Association do not
constitute a material breach of or default (or an event which,
with notice or lapse of time or both, would constitute a
default) under, nor give rise to any right of termination,
cancellation or acceleration contained in, or result in the
creation or imposition of any lien, charge or other
encumbrance upon any of the properties or assets of the
Company or the Association pursuant to any of the terms,
provisions or
Trident Securities, Inc.
Sales Agency Agreement
Page 19
conditions of, any material agreement, contract, indenture,
bond, debenture, note, instrument or obligation to which the
Company or the Association is a party or violate any federal
governmental license or permit or any federal law,
administrative regulation or order or court order, writ,
injunction or decree (subject to the satisfaction of certain
conditions imposed by the OTS), which breach, default,
encumbrance or violation would have a material adverse effect
on the condition (financial or otherwise), operations,
business, assets or properties of the Company and the
Association, taken as a whole; and
(xiii) to the Actual Knowledge of such counsel, there
has been no material breach of any provision of the Company's
or the Association's Articles of Incorporation, charter or
bylaws or breach or default (or the occurrence of any event
which, with notice or lapse of time or both, would constitute
a default) under any agreement, contract, indenture, bond,
debenture, note, instrument or obligation to which the Company
or the Association is a party or by which any of them or any
of their respective assets or properties may be bound, or a
violation of any court order, writ, injunction or decree which
breach, default, or violation would have a material adverse
effect on the condition (financial or otherwise), operations,
business, assets or properties of the Company and the
Association, taken as a whole;
(xiv) the execution and delivery of this Agreement
and the consummation of the Conversion have been duly and
validly authorized by all necessary corporate action on the
part of each of the Company and the Association;
(xv) this Agreement is a legal, valid and binding
obligation of each of the Company and the Association,
enforceable in accordance with its terms except as the
enforceability thereof may be limited by (i) Bankruptcy,
insolvency, moratorium, reorganization, receivership,
conservatorship or other laws relating to or affecting the
enforcement of creditors' rights generally or the rights of
creditors of depository institutions whose accounts are
insured by the FDIC or Association holding companies the
accounts of whose subsidiaries are insured by the FDIC, (ii)
by general equity principles, regardless of whether such
enforceability is considered in a proceeding in equity or at
law, or (iii) laws relating to the safety and soundness of
insured depository institutions and their affiliates and
except to the extent that the provisions of Sections 8 and 9
hereof may be unenforceable as against public policy or
applicable law, including but not limited to Section 23A, (as
to which no opinion need be rendered);
(xvi) the statements in the Prospectus and
incorporated by reference in the Proxy Statement under the
captions "Regulation," "Dividends," "Restrictions on
Trident Securities, Inc.
Sales Agency Agreement
Page 20
Acquisition of the Holding Company" and "Description of
Capital Stock," insofar as they are, or refer to, statements
of law or legal conclusions (excluding financial data included
therein, as to which an opinion need not be expressed), have
been prepared or reviewed by counsel and are correct in all
material respects;
(xvii) the Conversion Application has been approved
by the OTS, and the Prospectus and the Proxy Statement have
been authorized for use by the OTS; the Registration Statement
and any post-effective amendment thereto has been declared
effective by the Commission, and to the Actual Knowledge of
such counsel, no proceedings are pending by or before the
Commission or the OTS seeking to revoke or rescind the orders
declaring the Registration Statement effective or approving
the Conversion Application, or, to the Actual Knowledge of
such counsel, are contemplated or threatened;
(xviii) the execution and delivery of this Agreement
and the consummation of the Conversion by the Company and the
Association do not conflict with or result in a breach of the
Articles of Incorporation, charter or bylaws of the Company or
the Association (in either mutual or stock form); and
(xix) at the time the Conversion Application, the
Registration Statement, the Prospectus and the Proxy
Statement, in each case as amended, were approved or declared
effective, such documents complied as to form in all material
respects with the requirements of the Act, the HOLA and the
SEC Regulations and rules and regulations of the OTS, as the
case may be (except as to information with respect to Trident
included therein and financial statements, notes to financial
statements, financial tables and other financial and
statistical data, and stock valuation information, included
therein, as to which an opinion need not be expressed); to
such counsel's Actual Knowledge, all documents and exhibits
required to be filed with the Conversion Application and the
Registration Statement have been so filed and the descriptions
in the Conversion Application and the Registration Statement
of such documents and exhibits are accurate in all material
respects.
In rendering such opinions, such counsel may rely as to
matters of fact on certificates of officers and directors of the
Company and the Association and certificates of public officials
delivered pursuant hereto. Such counsel may assume that any agreement
is the valid and binding obligation of any parties to such agreement
other than the Company and the Association. Such opinion may be
governed by, and interpreted in accordance with, the Legal Opinion
Accord (the "Accord") of the ABA Section of Business Law (1991), and,
as a consequence, such opinion is subject to the qualifications,
exceptions, definitions, limitations on coverage and other limitations,
all as more particularly described in the Accord, and it
Trident Securities, Inc.
Sales Agency Agreement
Page 21
should be read in conjunction therewith. In addition, the General
Qualifications set forth in the Accord apply to the opinions set forth
in such opinion, and the term "Actual Knowledge" as used therein shall
have the meaning set forth in the Accord. 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 which occur subsequent to the date of the opinion; and
such counsel need express no view, opinion or belief with respect to
whether any proposed or pending legislation, if enacted, or any
regulations or any policy statements issued by any regulatory agency,
whether or not promulgated pursuant to any such legislation, would
affect the validity of the execution and delivery by the Company and
the Association of this Agreement or the issuance of the Shares.
Further, in rendering such opinions, Xxxxxx & Xxxxxxxxx will opine
solely as to matters of Federal Securities and Banking law and Indiana
law.
(c) At the Closing Date, Trident shall receive the letter of
Xxxxxx & Xxxxxxxxx, special counsel for the Company and the
Association, dated the Closing Date, addressed to Trident, in form and
substance reasonably satisfactory to counsel for Trident and to the
effect that: based on such counsel's participation in conferences with
representatives of the Company, the Association, its counsel, the
independent appraiser, the independent certified public accountants,
Trident and its counsel, review of documents and understanding of
applicable law (including the requirements of Form S-1 and the
character of the Registration Statement contemplated thereby) and the
experience such counsel has gained in its practice under the Act,
nothing has come to such counsel's attention that would lead it to
believe that the Registration Statement, as amended or supplemented
(except as to information in respect of Trident contained therein and
except as to the financial statements, notes to financial statements,
financial tables and other financial and statistical data and stock
valuation information contained therein, as to which counsel need
express no view), at the time it became effective contained any untrue
statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements made
therein, in light of the circumstances under which they were made, not
misleading, or that the Prospectus, as amended or supplemented (except
as to information in respect of Trident contained therein and except as
to financial statements, notes to financial statements, financial
tables and other financial and statistical data and stock valuation
information contained therein as to which such counsel need express no
view), as of its date and at the Closing Date, contained any untrue
statement of a material fact or omitted to state a material fact
necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading (in making this statement
such counsel may state that it has not undertaken to verify
independently the information in the Registration Statement or
Prospectus and, therefore, does not assume any responsibility for the
accuracy of completeness or fairness thereof).
Trident Securities, Inc.
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(d) Counsel for Trident shall have been furnished such
documents as they reasonably may require for the purpose of enabling
them to review or pass upon the matters required by Trident, and for
the purpose of evidencing the accuracy, completeness or satisfaction of
any of the representations, warranties or conditions herein contained,
including but not limited to, resolutions of the Board of Directors of
the Company and the Association regarding the authorization of this
Agreement and the transactions contemplated hereby.
(e) Prior to and at the Closing Date, in the reasonable
opinion of Trident, (i) there shall have been no material adverse
change in the condition, financial or otherwise, business or results of
operations of the Company and the Association, taken as a whole, since
the latest date as of which such condition is set forth in the
Prospectus, except as referred to therein; (ii) there shall have been
no transaction entered into by the Company or the Association after the
latest date as of which the financial condition of the Company and the
Association is set forth in the Prospectus other than transactions
referred to or contemplated therein, transactions in the ordinary
course of business, and transactions which are not materially adverse
to the Company and the Association, taken as a whole; (iii) none of the
Company or the Association shall have received from the OTS or
Commission any direction (oral or written) to make any change in the
method of conducting their respective businesses which is material and
adverse to the business of the Company and the Association, taken as a
whole, with which they have not complied; (iv) except as noted in the
Prospectus, no action, suit or proceeding, at law or in equity or
before or by any federal or state commission, board or other
administrative agency, shall be pending or threatened against the
Company or the Association or affecting any of their respective assets,
wherein an unfavorable decision, ruling or finding would have a
material adverse effect on the business, operations, financial
condition or income of the Company and the Association, taken as a
whole; and (v) the Shares shall have been qualified or registered for
offering and sale by the Company under the securities or blue sky laws
of such jurisdictions as Trident and the Company shall have agreed
upon.
(f) At the Closing Date, Trident shall receive a certificate
of the principal executive officer and the principal financial officer
of each of the Company and the Association, dated the Closing Date, to
the effect that: (i) they have examined the Prospectus and, at the time
the Prospectus became authorized by the Company for use, the Prospectus
did not contain an untrue statement of a material fact or omit to state
a material fact necessary in order to make the statements therein, in
light of the circumstances under which they were made, not misleading
with respect to the Company or the Association; (ii) since the date the
Prospectus became authorized by the Company for use, no event has
occurred which should have been set forth in an amendment or supplement
to the Prospectus which has not been so set forth, including
specifically, but without limitation, any material change in the
business, condition (financial or otherwise) or results of operations
of the Company or the Association and, the conditions set forth in
clauses (ii) through (iv) inclusive of subsection (e) of this
Trident Securities, Inc.
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Page 23
Section 7 have been satisfied; (iii) to the best knowledge of such
officers, no order has been issued by the Commission or the OTS to
suspend the Subscription Offering or the Community Offering or the
effectiveness of the Prospectus, and no action for such purposes has
been instituted or threatened by the Commission or the OTS; (iv) to the
best knowledge of such officers, no person has sought to obtain review
of the final actions of the Office approving the Plan; and (v) all of
the representations and warranties contained in Section 2 of this
Agreement are true and correct, with the same force and effect as
though expressly made on the Closing Date.
(g) At the Closing Date, Trident shall receive, among other
documents: (i) copies of the letters from the OTS authorizing the use
of the Prospectus and the Proxy Statement; (ii) if available, a copy of
the order of the Commission declaring the Registration Statement
effective; (iii) copies of the letters from the OTS evidencing the
corporate existence of the Association; (iv) a copy of the letter from
the appropriate Indiana authority evidencing the incorporation (and, if
generally available from such authority, good standing) of the Company;
(v) a copy of the Company's Articles of Incorporation certified by the
appropriate Indiana governmental authority; (vi) a copy of the OTS
order approving the Conversion; (vii) a copy of the OTS letter
authorizing the acquisition of the Association by the Company; (viii) a
copy of the letter from the OTS approving the use of the prospectus,
proxy statement and offering materials; and (ix) such other documents
as Trident may reasonably request and which are normal and customary
documents to be provided at the Closing Date.
(h) As soon as available after the Closing Date, Trident shall
receive a certified copy of the Association's Stock Charter executed by
the OTS.
(i) Concurrently with the execution of this Agreement, Trident
acknowledges receipt of a letter from Geo. S. Olive & Co., LLC,
independent certified public accountants, addressed to Trident and the
Company, in substance and form satisfactory to counsel for Trident,
with respect to the financial statements and certain financial
information contained in the Prospectus.
(j) At the Closing Date, Trident shall receive a letter in
form and substance satisfactory to counsel for Trident from Geo. S.
Olive & Co., LLC, independent certified public accountants, dated the
Closing Date and addressed to Trident and the Company, confirming the
statements made by them in the letter delivered by them pursuant to the
preceding subsection as of a specified date not more than three (3)
business days prior to the Closing Date.
All such opinions, certificates, letters and documents shall be in
compliance with the provisions hereof only if they are, in the reasonable
opinion of Trident and its counsel, satisfactory
Trident Securities, Inc.
Sales Agency Agreement
Page 24
to Trident and its counsel. Any certificates signed by an officer or director of
the Company or the Association prepared for Trident's reliance and delivered to
Trident or to counsel for Trident shall be deemed a representation and warranty
by the Company or the Association to Trident as to the statements made therein.
If any condition to Trident's obligations hereunder to be fulfilled prior to or
at the Closing Date is not so fulfilled, Trident may terminate this Agreement
or, if Trident so elects, may waive any such conditions which have not been
fulfilled, or may extend the time of their fulfillment. If Trident terminates
this Agreement as aforesaid, the Company and the Association shall reimburse
Trident for its expenses as provided in Section 3(b) hereof.
8. Indemnification.
(a) The Company and the Association jointly and severally
agree to indemnify and hold harmless Trident, its officers, directors
and employees and each person, if any, who controls Trident within the
meaning of Section 15 of the Act or Section 20(a) of the Exchange Act,
against any and all loss, liability, claim, damage and expense
whatsoever and shall further promptly reimburse such persons upon
written demand for any legal or other expenses reasonably incurred by
each or any of them in investigating, preparing to defend or defending
against any such action, proceeding or claim (whether commenced or
threatened) arising out of or based upon (A) any misrepresentation by
the Company or the Association in this Agreement or any breach of
warranty by the Company or the Association with respect to this
Agreement or arising out of or based upon any untrue or alleged untrue
statement of a material fact or the omission or alleged omission of a
material fact required to be stated or necessary to make not misleading
any statements contained in (i) the Registration Statement or the
Prospectus or (ii) any application or other document or communication
(in this Section 8 collectively called "Application") prepared or
executed by or on behalf of the Company or the Association or based
upon (B) written information furnished by or on behalf of the Company
or the Association, whether or not filed in any jurisdiction, to effect
the Conversion or qualify the Shares under the securities laws thereof
or filed with the OTS or Commission, unless such statement or omission
was made in reliance upon and in conformity with written information
furnished to the Company or the Association with respect to Trident by
or on behalf of Trident expressly for use in the Prospectus or any
amendment or supplement thereof or in any Application, as the case may
be.
(b) The Company shall indemnify and hold Trident harmless for
any liability whatsoever arising out of (i) the Allocation Instructions
or (ii) any records of account holders, depositors, and other members
of the Association delivered to Trident by the Association or its
agents for use during the Conversion.
(c) Trident agrees to indemnify and hold harmless the Company
and the Association, their officers, directors and employees and each
person, if any, who controls the
Trident Securities, Inc.
Sales Agency Agreement
Page 25
Company or the Association within the meaning of Section 15 of the Act
or Section 20(a) of the Exchange Act, to the same extent as the
foregoing indemnity from the Company and the Association to Trident,
but only with respect to (A) statements or omissions, if any, made in
the Prospectus or any amendment or supplement thereof, in any
Application or to a purchaser of the Shares in reliance upon, and in
conformity with, written information furnished to the Company or the
Association with respect to Trident by or on behalf of Trident
expressly for use in the Prospectus or in any Application; (B) any
misrepresentation or breach of warranty by Trident in Section 2(b) of
this Agreement; or (C) any liability of the Company or the Association
which is found in a final judgment by a court of competent jurisdiction
(not subject to further appeal) to have principally and directly
resulted from gross negligence or willful misconduct of Trident.
(d) Promptly after receipt by an indemnified party under this
Section 8 of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against the
indemnifying party under this Section 8, notify the indemnifying party
of the commencement thereof; but the omission so to notify the
indemnifying party will not relieve it from any liability which it may
have to any indemnified party otherwise than under this Section 8. In
case any such action is brought against any indemnified party, and it
notifies the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein and, to the
extent that it may wish, jointly with the other indemnifying party
similarly notified, to assume the defense thereof, with counsel
satisfactory to such indemnified party, and after notice from the
indemnifying party to such indemnified party of its election so to
assume the defense thereof, the indemnifying party will not be liable
to such indemnified party under this Section 8 for any legal or other
expenses subsequently incurred by such indemnified party in connection
with the defense thereof other than the reasonable cost of
investigation except as otherwise provided herein. In the event the
indemnifying party elects to assume the defense of any such action and
retain counsel acceptable to the indemnified party, the indemnified
party may retain additional counsel, but shall bear the fees and
expenses of such counsel unless (i) the indemnifying party shall have
specifically authorized the indemnified party to retain such counsel or
(ii) the parties to such suit include such indemnifying party and the
indemnified party, and such indemnified party shall have been advised
by counsel that one or more material legal defenses may be available to
the indemnified party which may not be available to the indemnifying
party, in which case the indemnifying party shall not be entitled to
assume the defense of such suit notwithstanding the indemnifying
party's obligation to bear the fees and expenses of such counsel. An
indemnifying party against whom indemnity may be sought shall not be
liable to indemnify an indemnified party under this Section 8 if any
settlement of any such action is effected without such indemnifying
party's consent. To the extent required by law, this Section 8 is
subject to and limited by the provisions of Section 23A.
Trident Securities, Inc.
Sales Agency Agreement
Page 26
9. Contribution. In order to provide for just and equitable
contribution in circumstances in which the indemnity agreement provided for in
Section 8 above is for any reason held to be unavailable to Trident, the Company
and/or the Association other than in accordance with its terms, the Company or
the Association and Trident shall contribute to the aggregate losses,
liabilities, claims, damages, and expenses of the nature contemplated by said
indemnity agreement incurred by the Company or the Association and Trident (i)
in such proportion as is appropriate to reflect the relative benefits received
by the Company and the Association on the one hand and Trident on the other from
the offering of the Shares or (ii) if the allocation provided by clause (i)
above is not permitted by applicable law, in such proportion as is appropriate
to reflect not only the relative benefits referred to in clause (i) above, but
also the relative fault of the Company or the Association on the one hand and
Trident on the other hand in connection with the statements or omissions which
resulted in such losses, claims, damages, liabilities or judgments, as well as
any other relevant equitable considerations. The relative benefits received by
the Company and the Association on the one hand and Trident on the other shall
be deemed to be in the same proportions as the total net proceeds from the
Conversion received by the Company and the Association bear to the total fees
received by Trident under this Agreement. The relative fault of the Company or
the Association on the one hand and Trident on the other shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company or the Association or by Trident
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
The Company and the Association and Trident agree that it would not be
just and equitable if contribution pursuant to this Section 9 were determined by
pro rata allocation or by any other method of allocation which does not take
account of the equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an indemnified party as a result of the
losses, claims, damages, liabilities or judgments referred to in the immediately
preceding paragraph shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses reasonably incurred by the indemnified
party in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 9, Trident shall not be required
to contribute any amount in excess of the amount by which fees owed Trident
pursuant to this Agreement exceeds the amount of any damages which Trident has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who is not guilty of such fraudulent
misrepresentation. To the extent required by law, this Section 9 is subject to
and limited by the provisions of Section 23A.
10. Survival of Agreements, Representations and Indemnities. The
respective indemnities of the Company and the Association and Trident and the
representation and warranties of the Company and the Association and of Trident
set forth in or made pursuant to this Agreement shall
Trident Securities, Inc.
Sales Agency Agreement
Page 27
remain in full force and effect, regardless of any termination or cancellation
of this Agreement or any investigation made by or on behalf of Trident or the
Company or the Association or any controlling person or indemnified party
referred to in Section 8 hereof, and shall survive any termination or
consummation of this Agreement and/or the issuance of the Shares, and any legal
representative of Trident, the Company, the Association and any such controlling
persons shall be entitled to the benefit of the respective agreements,
indemnities, warranties and representations.
11. Termination. Trident may terminate this Agreement by giving the
notice indicated below in this Section at any time after this Agreement becomes
effective as follows:
(a) If any domestic or international event or act or
occurrence has materially disrupted the United States securities
markets such as to make it, in Trident's reasonable opinion,
impracticable to proceed with the offering of the Shares; or if trading
on the New York Stock Exchange ("NYSE") shall have suspended (except
that this shall not apply to the imposition of NYSE trading collars
imposed on program trading); or if the United States shall have become
involved in a war or major hostilities; or if a general Banking
moratorium has been declared by a state or federal authority which has
a material effect on the Association or the Conversion; or if a
moratorium in foreign exchange trading by major international
Associations or persons has been declared; or if there shall have been
a material adverse change in the capitalization, condition or business
of the Company, or if the Association shall have sustained a material
or substantial loss by fire, flood, accident, hurricane, earthquake,
theft, sabotage or other calamity or malicious act, whether or not said
loss shall have been insured; or if there shall have been a material
adverse change in the condition or prospects of the Company or the
Association.
(b) If Trident elects to terminate this Agreement as provided
in this Section, the Company and the Association shall be notified
promptly by Trident by telephone or telegram, confirmed by letter.
(c) If this Agreement is terminated by Trident for any of the
reasons set forth in subsection (a) above, the Company and the
Association shall, upon demand, pay Trident the full amount owing
pursuant to Sections 3(b), 6, 8(a) and 9 of this Agreement.
(d) The Association may terminate the Conversion in accordance
with the terms of the Plan. Such termination shall be without liability
to any party, except that the Company and the Association shall be
required to fulfill their obligations pursuant to Sections 3(b), 6,
8(a) and 9 of this Agreement and Trident shall be required to fulfill
its obligations, if any, pursuant to Section 9 of this Agreement.
Trident Securities, Inc.
Sales Agency Agreement
Page 28
12. Notices. All communications hereunder, except as herein otherwise
specifically provided, shall be in writing and if sent to Trident shall be
mailed, delivered or telegraphed and confirmed to Trident Securities, Inc., 0000
Xxx Xxxxx Xxxx, Xxxxx 000, Xxxxxxx, Xxxxx Xxxxxxxx 00000, Attention: Mr. R. Xxx
Xxxxxxx, Xx. (with a copy to Xxxx Xxxxxx Xxxxxx Xxxxxxxx & Xxxxxx, P.C. Suite
400, 0000 Xxxxxxxxx Xxxxxx, X.X., Xxxxxxxxxx, X.X., 00000, Attention: Xxxx
Xxxxxx, Esquire). and if sent to the Company or the Association, shall be
mailed, delivered or telegraphed and confirmed to Union Federal Savings and Loan
Association, 000 X. Xxxx Xxxxxx, Xxxxxxxxxxxxxx, Xxxxxxx 00000-0000, Attention:
Xxxxxx X. Xxxxxxx, President (with a copy to Xxxxxx & Xxxxxxxxx, 0000 Merchants
Bank Building, 00 Xxxxx Xxxxxxxx Xxxxxx, Xxxxxxxxxxxx, Xxxxxxx 00000, Attention:
Xxxxxxx X. Xxxxxx, Esquire).
13. Parties. This Agreement shall inure solely to the benefit of, and
shall be binding upon, Trident, the Company, the Association and the controlling
and other persons referred to in Section 8 hereof, and their respective
successors, legal representatives and assigns, and no other person shall have or
be construed to have any legal or equitable right, remedy or claim under or in
respect of or by virtue of this Agreement or any provision herein contained.
14. Construction. Unless governed by preemptive federal law, this
Agreement shall be governed by and construed in accordance with the substantive
laws of Indiana.
15. Counterparts. This Agreement may be executed in separate
counterparts, each of which when so executed and delivered shall be an original,
but all of which together shall constitute but one and the same instrument.
Trident Securities, Inc.
Sales Agency Agreement
Page 29
Please acknowledge your agreement to the foregoing by signing below and
returning to the Company one copy of this letter.
UNION COMMUNITY BANCORP UNION FEDERAL SAVINGS AND LOAN
ASSOCIATION
By: By:
Xxxxxx X. Xxxxxxx Xxxxxx X. Xxxxxxx
President and Chief Executive Officer President and Chief
Executive Officer
Date: _________, 1997 Date: __________, 1997
Agreed to and accepted:
TRIDENT SECURITIES, INC.
By:
Date: __________, 1997
