ATLANTIC COAST FINANCIAL CORPORATION (a Maryland-chartered stock corporation) Up to 2,300,000 Shares (Subject to Increase Up to 2,645,000 Shares) COMMON STOCK ($0.01 Par Value) Subscription Price $10.00 Per Share FORM OF AGENCY AGREEMENT August , 2010
Exhibit 1.2
ATLANTIC COAST FINANCIAL CORPORATION
(a Maryland-chartered stock corporation)
Up to 2,300,000 Shares
(Subject to Increase Up to 2,645,000 Shares)
(a Maryland-chartered stock corporation)
Up to 2,300,000 Shares
(Subject to Increase Up to 2,645,000 Shares)
COMMON STOCK ($0.01 Par Value)
Subscription Price $10.00 Per Share
Subscription Price $10.00 Per Share
FORM OF AGENCY AGREEMENT
August , 2010
Xxxxxx, Xxxxxxxx & Company, Incorporated
000 Xxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
000 Xxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Atlantic Coast Federal Corporation, a federally-chartered stock corporation (the “Mid-Tier
Holding Company”), Atlantic Coast Financial Corporation, a newly-formed Maryland corporation
organized to be the successor to the Mid-Tier Holding Company (the “Holding Company”), Atlantic
Coast Federal, MHC, a federally-chartered mutual holding company (the “MHC”) that owns 65.1% of the
outstanding common stock of the Mid-Tier Holding Company, and Atlantic Coast Bank, a
federally-chartered stock savings bank (the “Bank”) whose outstanding common stock is owned in its
entirety by the Mid-Tier Holding Company (collectively the Holding Company, Mid-Tier Holding
Company, the MHC, and the Bank, the “Primary Parties”), hereby confirm, jointly and severally,
their agreement with Xxxxxx, Xxxxxxxx & Company, Incorporated (“Stifel” or “Agent”), as follows:
Section 1. The Offerings. The MHC, in accordance with the Plan of Conversion and
Reorganization initially adopted on June 15, 2010 (the “Plan”), intends to convert from a
federally-chartered mutual holding company form of organization to a stock holding company form of
organization (the “Conversion”) in accordance with the laws of the United States and the applicable
regulations of the Office of Thrift Supervision (the “OTS”) (collectively, the “Conversion
Regulations”). In connection with the Conversion, the Holding Company will offer shares of Common
Stock (as defined below) on a priority basis to (i) Eligible Account Holders; (ii) Employee Plans
of the Holding Company or Bank; (iii) Supplemental Eligible Account Holders; and (iv) Other
Depositors (all capitalized terms used in this Agreement and not defined in this Agreement shall
have the meanings set forth in the Plan).
Pursuant to the Plan, the Holding Company is offering a minimum of 1,700,000 shares and a
maximum of 2,300,000 shares of common stock, par value $0.01 per share (the “Common Stock”)
(subject to an increase up to 2,645,000 shares) (the “Offer Shares”), in the Subscription Offering,
and, if necessary, (i) the Community Offering and/or (ii) the Syndicated Community Offering
(collectively, the “Offering”). The Holding Company will sell the Offer Shares in the Offering at
$10.00 per share (the “Purchase Price”).
Pursuant to the Plan, the Holding Company will issue a minimum of 912,869 shares and a maximum
of 1,235,037 shares of its Common Stock (subject to increase up to 1,420,316 shares) (the “Exchange
Shares”) to existing public stockholders of the Mid-Tier Holding Company in exchange for their
existing shares of the Mid-Tier Holding Company (the “Exchange”) so that, upon completion of the
Offering and the Exchange, 100% of the outstanding shares of Common Stock of the Holding Company
will be publicly held, 100% of the outstanding shares of common stock of the Bank will be held by
the Holding Company, and the MHC and the Mid-Tier Holding Company will cease to exist.
The Offer Shares and the Exchange Shares may also be termed the “Shares.” If the number of
Shares is increased or decreased in accordance with the Plan, the term “Shares” shall mean such
greater or lesser number, where applicable.
It is acknowledged that the number of Offer Shares to be sold in the Offering may be increased
or decreased as described in the Prospectus (as hereinafter defined); that the purchase of the
Offer Shares in the Offering are subject to maximum and minimum purchase limitations as described
in the Plan and the Prospectus; and that the Holding Company may reject, in whole or in part, any
subscription received in the Community Offering and Syndicated Community Offering.
The Holding Company has filed with the U.S. Securities and Exchange Commission (the
“Commission”) a Registration Statement on Form S-1 (File No. 333-167632) in order to register the
Shares under the Securities Act of 1933, as amended (the “1933 Act”), and the regulations
promulgated thereunder (the “1933 Act Regulations”), and has filed such amendments thereto as have
been required to the date hereof (the “Registration Statement”). The prospectus, as amended,
included in the Registration Statement at the time it initially became effective is hereinafter
called the “Prospectus,” except that if any prospectus is filed by the Holding Company pursuant to
Rule 424(b) or (c) of the 1933 Act Regulations differing from the prospectus included in the
Registration Statement at the time it initially becomes effective, the
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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 and shall include any supplements and
amendments thereto from and after their dates of effectiveness or use, respectively.
In connection with the Conversion, the MHC filed with the OTS an application for conversion to
a stock company (together with any other required ancillary applications and/or notices and all
amendments or supplements thereto, the “Conversion Application”) as required by the OTS in
accordance with the Home Owners’ Loan Act, as amended (the “HOLA”), and 12 C.F.R. Parts 575 and
563b. The Holding Company also has filed with the OTS its application on Form H-(e)1-S (together
with other required ancillary applications and/or notices and all amendments or supplements
thereto, the “Holding Company Application”) to become a unitary savings and loan holding company
under the Conversion Regulations. Collectively, the Conversion Application and the Holding Company
Application may also be termed the “Applications.”
Concurrently with the execution of this Agreement, the Holding Company is delivering to the
Agent copies of the Prospectus dated , 2010 to be used in the Subscription Offering,
Community Offering (if any), and, if necessary, will deliver copies of the Prospectus and any
prospectus supplement for use in a Syndicated Community Offering.
Section 2. Appointment of Agent. Subject to the terms and conditions of this
Agreement, the Primary Parties hereby appoint Stifel to consult with, advise and assist the Primary
Parties in connection with the sale of the Offer Shares in the Offering, and as sole book running
manager for the purpose of soliciting or receiving purchase orders for Offer Shares in connection
with the sale of the Offer Shares in the Syndicated Community Offering.
On the basis of the representations and warranties of the Primary Parties contained in, and
subject to the terms and conditions of, this Agreement, Stifel accepts such appointment and agrees
to use its best efforts to assist the Primary Parties with the solicitation of subscriptions and
purchase orders for the Offer Shares agrees to consult with and advise the Primary Parties as to
the matters set forth in Section 3 of the letter agreement, dated May 28, 2010 between the MHC, the
Mid-Tier Holding Company, the Bank and Stifel (the “Letter Agreement”) (a copy of which is attached
hereto as Exhibit A), including the coordination of the Syndicated Community Offering, and
to solicit offers to purchase Offer Shares in the Syndicated Community Offering. It is acknowledged
by the Primary Parties that the Agent shall not be obligated to purchase any Offer Shares and shall
or not be obligated to take any action that is inconsistent with any applicable law, regulation,
decision or order. Except as set forth in Section 13 hereof, the appointment of the Agent to
provide services hereunder shall terminate upon consummation of the Offering.
If selected broker-dealers in addition to Stifel are used to assist in the sale of Offer
Shares in the Syndicated Community Offering, the Primary Parties hereby, subject to the terms and
conditions of this Agreement, appoint Stifel as sole book running manager of the Syndicated
Community Offering. On the basis of the representations and warranties of the Primary Parties
contained in, and subject to the terms and conditions of, this Agreement, Stifel accepts such
appointment and agrees to manage the selling group of broker-dealers in the Syndicated Community
Offering.
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Section 3. Refund of Purchase Price. In the event that the Conversion is not
consummated for any reason, including but not limited to the inability to sell a minimum of
1,700,000 Offer Shares during the Offering (including any permitted extension thereof) or such
minimum number of Offer Shares as shall be established consistent with the Plan and the Conversion
Regulations, this Agreement shall terminate and any persons who have subscribed for or ordered any
of the Offer Shares shall have refunded promptly to them the full amount which has been received
from such person, together with interest, if applicable, as provided in the Prospectus. Upon
termination of this Agreement, neither the Agent nor the Primary Parties shall have any obligation
to the other except that (i) the Primary Parties shall remain liable for any amounts due pursuant
to Sections 4, 9, 11 and 12 hereof, unless the transaction is not consummated due to the breach by
the Agent of a warranty, representation or covenant; and (ii) the Agent shall remain liable for any
amount due pursuant to Sections 11 and 12 hereof, unless the transaction is not consummated due to
the breach by the Primary Parties of a warranty, representation or covenant.
Section 4. Fees. In addition to the expenses specified in Section 9 hereof, as
compensation for the Agent’s services under this Agreement, the Agent has received or will receive
the following fees from the Primary Parties:
(a) An advisory and administrative services fee of $50,000 shall be paid as follows to Stifel:
(i) $25,000 was paid upon execution of the Letter Agreement, and (ii) $25,000 was paid upon the
initial filing of the Registration Statement.
(b) A fee for sales of the Offer Shares in the Offering of one percent (1%) of the aggregate
dollar amount of the Offer Shares sold in the Subscription Offering and the Community Offering. No
fee shall be payable in connection with the issuance of Exchange Shares, or the sale of stock to
the officers, directors and employees of the Primary Parties, or immediate family of such persons
(“Insiders”), including trusts of Insiders and the qualified and non-qualified employee benefit
plans of the Primary Parties or the Insiders. “Immediate family” includes the spouse, parents,
siblings and children who live in the same house as the officer, director or employee. The success
fee under this Section 4(b) will be reduced by the amount of the advisory and administrative
services fee under Section 4(a).
(c) If any of the Offer Shares remain unsubscribed after the Subscription Offering and the
Community Offering, at the request of the Holding Company, Stifel will form a group of approved
broker-dealer firms in accordance with Section 2 for purposes of the Syndicated Community Offering.
Stifel will act as sole book running manager in the Syndicated Community Offering and be entitled
to a minimum 75% participation in all aspects of the Syndicated Community Offering. The Holding
Company shall pay a fee equal to one percent (1%) of the aggregate dollar amount of the Offer
Shares sold pursuant to this Section 4(c) (the “Syndicate Management Fee”). In addition, the
Holding Company will pay a syndicate sales fee, which syndicate sales fee, together with the
Syndicate Management Fee, will not, in the aggregate, exceed five and one half percent (5.5%) of
the aggregate dollar amount of the Offer Shares sold pursuant to this Section 4(c) in the
Syndicated Community Offering; provided, however, that a fee of one percent (1%) shall be payable
for Shares sold in the Syndicated Community Offering to entities participating as lenders at the
Closing Date in any credit facility for the benefit of the Mid-Tier Holding Company. In
consultation with Stifel, the Holding
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Company will determine which FINRA member firms will participate in the selling group and the
extent of their participation. Stifel will not commence sales of the Offer Shares through a selling
group of approved broker-dealer firms without prior approval of the Holding Company. All such fees
payable under this Section 4(c) shall be in addition to all fees payable under Section 4(b), less
the amount of advance payments described in Section 4(a) and shall be paid at Closing (as defined
in Section 5).
In the event that the Holding Company is required to resolicit subscribers for Offer Shares in
the Subscription Offering or the Community Offering and Stifel is required to provide significant
additional services in connection with such a resolicitation, the Primary Parties shall pay to
Stifel an additional amount not to exceed $50,000.
If this Agreement is terminated in accordance with the provisions of Sections 3, 10 or 14 and
the sale of the Offer Shares is not consummated, Stifel shall not be entitled to receive the fees
set forth in Sections 4(b)-(c), but Stifel will retain the fee for its conversion and proxy
solicitation advisory and administrative services already earned of $50,000 and the Primary Parties
will reimburse Stifel for its reasonable expenses pursuant to Section 9.
Section 5. Closing. If: (a) the minimum number of Offer Shares permitted to be sold in
the Offering on the basis of the most recently updated Appraisal (as defined in Section 6(j)) is
subscribed for at or before the termination date of the Offering (which may be extended); and (b)
the other conditions (including those in Section 10) to the completion of the Conversion are
satisfied, the Holding Company agrees to issue the Offer Shares on the Closing Date (as hereinafter
defined) against payment therefor by the means authorized by the Plan and to deliver certificates
evidencing ownership of the Offer Shares in such authorized denominations and registrations
directly to the purchasers thereof or as instructed as promptly as practicable after the Closing
Date. The closing (the “Closing”) shall be held at the offices of Xxxx Xxxxxx Xxxxxxxx & Xxxxxx,
P.C., Washington, D.C., or at such other place as shall be agreed upon among the Primary Parties
and the Agent, at 10:00 a.m., Eastern Time, on the business day selected by the Primary Parties,
which business day shall be no less than two (2) business days following the giving of prior notice
by the Holding Company to the Agent or at such other time as shall be agreed upon by the Primary
Parties and the Agent. At the Closing, the Primary Parties shall deliver to the Agent by wire
transfer in same-day funds the commissions, fees and expenses owing to the Agent as set forth in
Section 4 and Section 9 hereof and the opinions required hereby and other documents deemed
reasonably necessary for the Agent shall be executed and delivered to effect the sale of the Offer
Shares as contemplated hereby and pursuant to the terms of the Prospectus; and/or the Agent shall
deliver to the Holding Company by wire transfer in same day funds the aggregate proceeds of the
Offer Shares sold by the Agents in the Syndicated Community Offering, net of commissions and fees
owing to the Agents under paragraph (c) of Section 4 of this Agreement provided, however, that all
out-of-pocket expenses to which Stifel is entitled under Section 9 hereof shall be due and payable
upon receipt by the Holding Company or the Bank of a written accounting therefor setting forth in
reasonable detail the expenses incurred by Stifel. The hour and date upon which the Holding Company
shall release the Shares for delivery in accordance with the terms hereof is referred to herein as
the “Closing Date.”
Stifel shall have no liability to any party for the records or other information provided by
the Primary Parties (or their agents) to Stifel for use in allocating the Shares. Subject to the
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limitations of Section 11 hereof, the Primary Parties shall indemnify and hold harmless Stifel
for any liability arising out of the allocation of the Shares in accordance with (i) the Plan
generally, and (ii) the records or other information provided to Stifel (or its agents) by the
Primary Parties (or their agents).
Section 6. Representations and Warranties of the Primary Parties. The Primary Parties
jointly and severally represent and warrant to the Agent that:
(a) The MHC, the Mid-Tier Holding Company, the Holding Company and the Bank have all such
power, authority, authorizations, approvals and orders as may be required to enter into this
Agreement, and, as of the Closing Date, the MHC, the Mid-Tier Holding Company, the Holding Company
and the Bank will have all such power, authority, authorizations, approvals and orders as may be
required to carry out the provisions and conditions hereof and to issue and sell the Offer Shares
and to issue the Exchange Shares as provided herein and as described in the Prospectus. The
consummation of the Conversion, the execution, delivery and performance of this Agreement and the
Letter Agreement and the consummation of the transactions contemplated herein have been duly and
validly authorized by all necessary corporate action on the part of the MHC, the Mid-Tier Holding
Company, the Holding Company and the Bank. This Agreement has been validly executed and delivered
by the Primary Parties, and is a valid, legal and binding obligation of the Primary Parties, in
each case enforceable in accordance with its terms, except to the extent, if any, that the
provisions of Sections 11 and 12 hereof may be unenforceable as against public policy, and except
to the extent that such enforceability may be limited by bankruptcy laws, insolvency laws, or other
laws affecting the enforcement of creditors’ rights generally, or the rights of creditors of
savings institutions insured by the FDIC (including the laws relating to the rights of the
contracting parties to equitable remedies).
(b) The Registration Statement was declared effective by the Commission on August ___, 2010.
No stop order has been issued with respect to the Registration Statement. No proceedings related to
the Registration Statement have been initiated or, to the knowledge of the Primary Parties,
threatened by the Commission. At the time the Registration Statement, including the Prospectus
contained therein (including any amendment or supplement thereto), became effective, the
Registration Statement complied as to form in all material respects with the 1933 Act and the 1933
Act Regulations and the Registration Statement, including the Prospectus contained therein
(including any amendment or supplement thereto), any Blue Sky Application or any Sales Information
(as such terms are defined in Section 11 hereof) authorized by the Primary Parties 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. At the time any Rule 424(b)
or (c) Prospectus was filed with the Commission and at the Closing Date referred to in Section 5,
the Registration Statement, including the Prospectus contained therein (including any amendment or
supplement thereto) and, when taken together with the Prospectus, any Blue Sky Application (if
applicable) or Sales Information (as defined below) authorized for use by any of the Primary
Parties in connection with the Offering, will not contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or 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
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this Section 6(b) shall not apply to statements or omissions made in reliance upon and in
conformity with written information furnished to the Primary Parties by the Agent expressly
regarding the Agent for use under the caption “The Conversion Offering – Plan of Distribution;
Selling Agent Compensation” or written statements or omissions from any sales information or
information filed pursuant to state securities or blue sky laws or regulations regarding the Agent.
(c) At the time of filing the Registration Statement and at the date hereof, the Holding
Company was not, and is not, an ineligible issuer, as defined in Rule 405. At the time of the
filing of the Registration Statement and at the time of the use of any issuer free writing
prospectus, as defined in Rule 433(h), the Holding Company met the conditions required by Rules 164
and 433 for the use of a free writing prospectus. If required to be filed, the Holding Company has
filed any issuer free writing prospectus related to the Offer Shares at the time it is required to
be filed under Rule 433 and, if not required to be filed, will retain such free writing prospectus
in the Holding Company’s records pursuant to Rule 433(g) and if any issuer free writing prospectus
is used after the date hereof in connection with the offering of the Shares the Holding Company
will file or retain such free writing prospectus as required by Rule 433.
(d) As of the Applicable Time, neither (i) the Issuer-Represented General Free Writing
Prospectus(es) issued at or prior to the Applicable Time and the Statutory Prospectus, all
considered together (collectively, the “General Disclosure Package”), nor (ii) any individual
Issuer-Represented Limited-Use Free Writing Prospectus, when considered together with the General
Disclosure Package, included any untrue statement of a material fact or omitted to state any
material fact necessary in order to make the statements therein, in the light of the circumstances
under which they were made, not misleading. The preceding sentence does not apply to statements in
or omissions from any Prospectus included in the Registration Statement relating to the Shares or
any Issuer-Represented Free Writing Prospectus based upon and in conformity with written
information furnished to the Holding Company by the Agent specifically for use therein. As used in
this paragraph and elsewhere in this Agreement:
(1) “Applicable Time” means each and every date when a potential purchaser
submitted a subscription or otherwise committed to purchase Shares.
(2) “Issuer-Represented Free Writing Prospectus” means any “issuer free writing
prospectus,” as defined in Rule 433(h), relating to the Shares that is required to
be filed with the Commission by the Holding Company or required to be filed with the
Commission. The term does not include any writing exempted from the definition of
prospectus pursuant to clause (a) of Section 2(a)(10) of the 1933 Act, without
regard to Rule 172 or Rule 173.
(3) “Issuer-Represented General Free Writing Prospectus” means any
Issuer-Represented Free Writing Prospectus that is intended for general distribution
to prospective investors.
(4) “Issuer-Represented Limited-Use Free Writing Prospectus” means any
Issuer-Represented Free Writing Prospectus that is not an Issuer-Represented General
Free Writing Prospectus. The term Issuer-Represented Limited-Use Free Writing
Prospectus also includes any “bona fide electronic road show,” as defined
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in Rule 433(h), that is made available without restriction pursuant to
Rule 433(d)(8)(ii) or otherwise, even though not required to be filed with the
Commission.
(5) “Statutory Prospectus,” as of any time, means the Prospectus relating to
the Offer Shares that is included in the Registration Statement relating to the
Shares immediately prior to that time, including any document incorporated by
reference therein.
(e) Each Issuer-Represented Free Writing Prospectus, as of its date of first use and at all
subsequent times through the completion of the Offering and sale of the Offer Shares or until any
earlier date that the Holding Company notified or notifies the Agent (as described in the next
sentence), did not, does not and will not include any information that conflicted, conflicts or
will conflict with the information contained in the Registration Statement relating to the Shares,
including any document incorporated by reference therein that has not been superseded or modified.
If at any time following the date of first use of an Issuer-Represented Free Writing Prospectus
there occurred or occurs an event or development as a result of which such Issuer-Represented Free
Writing Prospectus conflicted or would conflict with the information contained in the Registration
Statement relating to the Shares or included or would include an untrue statement of a material
fact or omitted or would omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances prevailing at that subsequent time, not misleading, the
Holding Company has notified or will notify promptly the Agent so that any use of such
Issuer-Represented Free Writing Prospectus may cease until it is amended or supplemented and the
Holding Company has promptly amended or will promptly amend or supplement such Issuer-Represented
Free Writing Prospectus to eliminate or correct such conflict, untrue statement or omission. The
foregoing two sentences do not apply to statements in or omissions from any Issuer-Represented Free
Writing Prospectus based upon and in conformity with written information furnished to the Holding
Company by the Agent specifically for use therein.
(f) The Conversion Application, including the Prospectus, the proxy statement for the
solicitation of proxies from the Voting Depositors of the Bank for the special meeting to approve
the Plan (the “Depositors’ Proxy Statement”) and the proxy statement/prospectus for the
solicitation of proxies from the stockholders of the Mid-Tier Holding Company for the special
meeting to approve the Plan (the “Stockholders’ Proxy Statement”), was approved by the OTS on
August ___, 2010 and the Prospectus, Depositors’ Proxy Statement and Stockholders’ Proxy Statement
have been authorized for use by the OTS. At the time the Conversion Application, including the
Prospectus, Depositors’ Proxy Statement and Stockholders’ Proxy Statement contained therein
(including any amendment or supplement thereto), were approved and authorized for use by the OTS
and at all times subsequent thereto until the Closing Date, the Conversion Application, including
the Prospectus, Depositors’ Proxy Statement and Stockholders’ Proxy Statement contained therein
(including any amendment or supplement thereto), complied and will comply as to form in all
material respects with the Conversion Regulations. At the time of the approvals by the OTS and at
all times subsequent thereto until the Closing Date, the Conversion Application, including the
Prospectus, the Depositors’ Proxy Statement and the Stockholders’ Proxy Statement, did not and will
not include any untrue statement of a material fact or omit to state any material fact required to
be stated
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therein or necessary to make the statements therein, in light of the circumstances under which
they were made, not misleading; provided, however, that representations or warranties in this
subsection (f) shall not apply to statements or omissions made in reliance upon and in conformity
with written information furnished to the Primary Parties by the Agent expressly regarding the
Agent for use in the Prospectus contained under the caption “The Conversion Offering – Plan of
Distribution; Selling Agent Compensation” or written statements or omissions from any sales
information or information filed pursuant to state securities or blue sky laws or regulations
regarding the Agent.
(g) No order has been issued by the Commission, the OTS, or any other state or federal
regulatory authority, preventing or suspending the use of the Registration Statement or the
Prospectus and no action by or before any such government entity to revoke any approval,
authorization or order of effectiveness related to the Conversion is pending or, to the knowledge
of the Primary Parties, threatened.
(h) The Plan has been duly adopted by the Board of Directors of the MHC, the Mid-Tier Holding
Company, the Bank and the Holding Company. To the knowledge of the Primary Parties, no person has
sought, or at the Closing Date will have sought, to obtain review of the final action of the OTS in
approving the Plan, the Conversion Application or the Holding Company Application.
(i) The Holding Company Application was approved by the OTS on August ___, 2010. The Holding
Company Application did and will comply as to form in all material respects with all applicable
rules and regulations of the OTS (except as modified or waived by the OTS). At the time of the
approval and at all times subsequent thereto until the Closing Date, the Holding Company
Application (including any amendment or supplement thereto) did not and does not include any untrue
statement of a material fact or omit to state any material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances under which they were made,
not misleading; provided, however, that representations or warranties in this subsection (i) shall
not apply to statements or omissions made in reliance upon and in conformity with written
information furnished to the Primary Parties by the Agent expressly regarding the Agent for use in
the Holding Company Application.
(j) RP Financial, LC., which prepared the appraisal of the aggregate pro forma market value of
the Common Stock on which the Offering was based (the “Appraisal”), has advised the Primary Parties
in writing that it is independent with respect to each of the Primary Parties and the Primary
Parties believe RP Financial, LC. to be expert in preparing appraisals of savings institutions.
(k) (i) Xxxxx Xxxxxxx LLP, which certified the financial statements filed as part of the
Registration Statement and the Applications, has advised the Primary Parties that it is an
independent certified public accountant within the meaning of the Code of Ethics of the AICPA, and
Xxxxx Xxxxxxx LLP is, with respect to each of the Primary Parties, an independent certified public
accountant as required by the 1933 Act and the 1933 Act Regulations and the regulations of the
Public Company Accounting Oversight Board (the “PCAOB Regulations”).
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(ii) RSM McGladrey, Inc., the accountants who reviewed the consolidated financial statements
of the Mid-Tier Holding Company for the three-month period ended March 31, 2010 included in the
Registration Statement have advised the Primary Parties that it is an independent certified public
accountant within the meaning of the Code of Ethics of the AICPA, and RSM McGladrey, Inc. is, with
respect to each of the Primary Parties, an independent certified public accountant as required by
the 1933 Act and the 1933 Act Regulations and PCAOB Regulations.
(l) The financial statements and the notes thereto that are included in the Registration
Statement and that are a part of the Prospectus present fairly the consolidated financial condition
of the Mid-Tier Holding Company and the Bank as of the dates indicated and the consolidated results
of operations and cash flows for the periods specified. The financial statements comply in all
material respects with the applicable accounting requirements of Title 12 of the Code of Federal
Regulations, Regulation S-X of the Commission and accounting principles generally accepted in the
United States (“GAAP”) applied on a consistent basis during the periods presented, except as
otherwise noted therein, and present fairly in all material respects the information required to be
stated therein. 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 any unaudited financial statements included in the Prospectus, and as to the pro
forma adjustments, the adjustments made therein have been properly and consistently applied on the
basis described therein.
(m) Since the respective dates as of which information is given in the Registration Statement,
including the Prospectus, other than as disclosed therein: (i) there has not been any material
adverse change in the financial condition, results of operation, capital, properties, business
affairs or prospects of any of the Primary Parties or any direct or indirect wholly-owned or
partially-owned subsidiary of the Bank (each, a “Bank Subsidiary”) or the Primary Parties
considered as one enterprise, whether or not arising in the ordinary course of business; (ii) there
has not been any material change in total assets of the Primary Parties (including any subsidiary
of the Bank) on a consolidated basis, any material increase in the aggregate amount of loans past
due ninety (90) days or more, or any real estate acquired by foreclosure or loans characterized as
“in substance foreclosure;” (iii) none of the Primary Parties or any Bank Subsidiary have issued
any securities or incurred any liability or obligation for borrowings other than in the ordinary
course of business, except for shares issued upon the exercise of outstanding stock options; and
(iv) there have not been any material transactions entered into by any of the Primary Parties or
any Bank subsidiary, other than those in the ordinary course of business. The capitalization,
liabilities, assets, properties and business of the Primary Parties and each Bank Subsidiary
conform in all material respects to the descriptions thereof contained in the Registration
Statement and the Prospectus and, none of the Primary Parties or subsidiaries of the Bank has any
material liabilities of any kind, contingent or otherwise, except as disclosed in the Registration
Statement and the Prospectus.
(n) The Holding Company is a stock corporation duly organized, validly existing and in good
standing under the laws of the State of Maryland, with corporate power and authority to own its
properties and to conduct its business as described in the Prospectus, and will be qualified to
transact business and will be in good standing in Maryland and in each jurisdiction in which the
conduct of business requires such qualification, unless the failure to
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qualify in one or more of such jurisdictions would not have a material adverse effect on the
financial condition, results of operation, capital, properties, business affairs or prospects of
the Primary Parties taken as a whole (a “Material Adverse Effect”). As of the Closing Date, the
Holding Company 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 have a Material Adverse Effect; and as of the Closing Date, all such licenses, permits and
governmental authorizations will be in full force and effect, and the Holding Company will be in
compliance therewith in all material respects.
(o) The Holding Company does not, and as of the Closing Date will not, own any equity
securities or any equity interest in any business enterprise except as described in the Prospectus.
(p) Except as described in the Prospectus there are no contractual encumbrances or
restrictions or requirements or material legal restrictions or requirements required to be
described therein, on the ability of the Holding Company, the Mid-Tier Holding Company, the MHC,
the Bank or any Bank Subsidiary, (A) to pay dividends or make any other distributions on its
capital stock or to pay any indebtedness owed to another party, (B) to make any loans or advances
to, or investments in, another party or (C) to transfer any of its property or assets to another
party. Except as described in the Prospectus, there are no restrictions, encumbrances or
requirements affecting the payment of dividends or the making of any other distributions on any of
the capital stock of the Holding Company.
(q) The Bank, and each Bank Subsidiary, as applicable, has properly administered all accounts
for which it acts as a fiduciary, including but not limited to accounts for which it serves as a
trustee, agent, custodian, personal representative, guardian, conservator or investment advisor, in
accordance with the terms of the governing documents and applicable state and federal law and
regulation, except where the failure to be in compliance would not have a Material Adverse Effect.
Neither the Bank, any Bank Subsidiary, as applicable, nor any of their respective directors,
officers or employees has committed any material breach of trust with respect to any such fiduciary
account, and the accountings for each such fiduciary account are true and correct in all material
respects and accurately reflect the assets of such fiduciary account in all material respects.
(r) The Bank is a duly organized and validly existing federally-chartered savings bank in
stock form and is duly authorized to conduct its business as described in the Prospectus; the
activities of the Bank are permitted by the rules, regulations and practices of the OTS; the Bank
has obtained all licenses, permits and other governmental authorizations currently required for the
conduct of its business, except those that individually or in the aggregate would not have a
Material Adverse Effect, and all such licenses, permits and other governmental authorizations are
in full force and effect; the Bank is, and as of the Closing Date will be, duly organized and
validly existing under the laws of the United States of America; the Bank is duly qualified as a
foreign corporation to transact business in each jurisdiction in which the failure to so qualify
would have a Material Adverse Effect; all of the issued and outstanding capital stock of the Bank
is duly and validly issued to the Mid-Tier Holding Company and is fully paid and nonassessable; and
all of the issued and outstanding capital stock of the Bank after the Conversion will be duly and
validly issued to the Holding Company and will be fully paid and
11
nonassessable; and as of the Closing Date, the Holding Company will directly own all of the
capital stock of the Bank free and clear of any mortgage, pledge, lien, encumbrance, claim or
restriction of any kind. The Bank does not own equity securities or any equity interest in any
other business enterprise except as otherwise described in the Prospectus or as are immaterial in
amount and are not required to be described in the Prospectus.
(s) The MHC is a duly organized and validly existing federally-chartered mutual holding
company, duly authorized to conduct its business as described in the Prospectus; the activities of
the MHC are permitted by the rules, regulations and practices of the OTS; the MHC has obtained all
licenses, permits and other governmental authorizations currently required for the conduct of its
business, except those that, individually or in the aggregate, would not have a Material Adverse
Effect; all such licenses, permits and other governmental authorizations are in full force and
effect; the MHC is duly organized and validly existing under the laws of United States; and the MHC
is duly qualified as a foreign corporation to transact business in each jurisdiction in which the
failure to so qualify would have a Material Adverse Effect.
(t) The Mid-Tier Holding Company is a duly organized and validly existing federally-chartered
stock corporation, duly authorized to conduct its business as described in the Prospectus; the
activities of the Mid-Tier Holding Company are permitted by the rules, regulations and practices of
the OTS; the Mid-Tier Holding Company has obtained all licenses, permits and other governmental
authorizations currently required for the conduct of its business, except those that, individually
or in the aggregate, would not have a Material Adverse Effect; all such licenses, permits and other
governmental authorizations are in full force and effect; the Mid-Tier Holding Company is duly
organized and validly existing under the laws of United States; and the Mid-Tier Holding Company is
duly qualified as a foreign corporation to transact business in each jurisdiction in which the
failure to so qualify would have a Material Adverse Effect.
(u) The Bank is a member of the Federal Home Loan Bank (the “FHLB”) of Atlanta. The deposit
accounts of the Bank are insured by the FDIC up to applicable limits.
(v) As of the Closing Date, the Bank will be a wholly-owned subsidiary of the Holding Company.
(w) Each Bank Subsidiary is, and as of the Closing Date, will be duly organized, validly
existing and in good standing in the jurisdiction of its incorporation and duly authorized to
conduct its business as described in the Prospectus; the activities of each Bank Subsidiary are
permitted by the rules, regulations and practices of the OTS and any other applicable governmental
entity; each Bank Subsidiary has obtained all licenses, permits and other governmental
authorizations currently required for the conduct of its business, except those that individually
or in the aggregate would not have a Material Adverse Effect, and all such licenses, permits and
other governmental authorizations are in full force and effect; all of the issued and outstanding
capital stock of each Bank Subsidiary is duly and validly issued to the Bank and is fully paid and
nonassessable; and all of the issued and outstanding capital stock of each Bank Subsidiary after
the Conversion will be duly and validly issued to the Bank and will be fully paid and
nonassessable; and as of the Closing Date, the Bank will directly own all of the capital stock of
each Bank Subsidiary free and clear of any mortgage, pledge, lien, encumbrance,
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claim or restriction of any kind. Each Bank Subsidiary does not own equity securities or any
equity interest in any other business enterprise except as otherwise described in the Prospectus or
as are immaterial in amount and are not required to be described in the Prospectus.
(x) The Holding Company, the Mid-Tier Holding Company, the MHC, the Bank and each Bank
Subsidiary carry, or are covered by, insurance in such amounts and covering such risks as the
Holding Company, the Mid-Tier Holding Company, the MHC, the Bank and each Bank Subsidiary deem
reasonably adequate for the conduct of their respective businesses and the value of their
respective properties.
(y) Upon consummation of the Conversion, the authorized, issued and outstanding capital stock
of the Holding Company will be within the range set forth in the Prospectus under the caption
“Capitalization” and no shares of Common Stock have been or will be issued and outstanding prior to
the Closing Date (except those shares issued to the Bank for its initial organization); the Offer
Shares to be subscribed for in the Offering have been duly and validly authorized for issuance and,
when issued and delivered by the Holding Company pursuant to the Plan against payment of the
consideration calculated as set forth in the Plan and the Prospectus, will be duly and validly
issued and fully paid and nonassessable; the Exchange Shares to be issued in the Exchange have been
duly and validly authorized for issuance and, when issued and delivered by the Holding Company
pursuant to the Plan, the Prospectus, and the Stockholders’ Proxy Statement, will be duly and
validly issued and fully paid and nonassessable; the issuance of the Shares is not subject to
preemptive rights, except for the subscription rights for the Offer Shares granted pursuant to the
Plan; and the terms and provisions of the shares of Common Stock will conform in all material
respects to the description thereof contained in the Prospectus. Upon issuance and sale of the
Offer Shares, good title to the Offer Shares will be transferred from the Holding Company to the
purchasers of Offer Shares against payment therefor in the Offering as set forth in the Plan and
the Prospectus. Upon issuance of the Exchange Shares, good title to the Exchange Shares will be
transferred from the Holding Company to the recipients thereof in the Exchange as set forth in the
Plan, the Prospectus and the Stockholders’ Proxy Statement.
(z) The Primary Parties and each Bank Subsidiary are not, and as of the Closing Date will not
be, in violation of their respective articles of incorporation or charters or their respective
bylaws, or in material default in the performance or observance of any obligation, agreement,
covenant, or condition contained in any contract, lease, loan agreement, indenture or other
instrument to which they are a party or by which they, or any of their respective properties, may
be bound which would result in a Material Adverse Effect. The consummation of the transactions
contemplated herein and in the Plan will not (i) conflict with or constitute a breach of, or
default under, the articles of incorporation, charter or bylaws of any of the Primary Parties or
any Bank Subsidiary, or materially conflict with or constitute a material breach of, or default
under, any material contract, lease or other instrument to which any of the Primary Parties or any
Bank Subsidiary has a beneficial interest, or any applicable law, rule, regulation or order that is
material to the financial condition of the Primary Parties or any Bank Subsidiary, as applicable;
(ii) violate any authorization, approval, judgment, decree, order, statute, rule or regulation
applicable to the Primary Parties or any Bank Subsidiary except for such violations which would not
have a Material Adverse Effect; or (iii) result in the creation of
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any material lien, charge or encumbrance upon any property of the Primary Parties or any Bank
Subsidiary.
(aa) No default exists, and no event has occurred that with notice or lapse of time, or both,
would constitute a default on the part of any of the Primary Parties or any Bank Subsidiary, 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 any of
the Primary Parties or any Bank Subsidiary is a party or by which any of their property is bound or
affected in any respect which, in any such case, would have a Material Adverse Effect on the
Primary Parties or Bank Subsidiary individually or taken as a whole, and all such agreements are in
full force and effect; and no other party to any such agreements has instituted or, to the
knowledge of any of the Primary Parties or any Bank Subsidiary, threatened any action or proceeding
wherein any of the Primary Parties or any Bank Subsidiary is alleged to be in default thereunder
under circumstances where such action or proceeding, if determined adversely to any of the Primary
Parties or any Bank Subsidiary, would have a Material Adverse Effect.
(bb) The Primary Parties and each Bank Subsidiary have good and marketable title to all assets
which are material to the businesses, financial condition, results of operation, capital,
properties, and assets of the Primary Parties and each Bank Subsidiary and to those assets
described in the Prospectus as owned by them, free and clear of all liens, charges, encumbrances,
restrictions or other claims, except such as are described in the Prospectus or which do not have a
Material Adverse Effect; and all of the leases and subleases that are material to the businesses of
the Primary Parties or any Bank Subsidiary, including those described in the Registration Statement
or Prospectus, are in full force and effect.
(cc) The Primary Parties and each Bank Subsidiary are not in material violation of any
directive, order or memorandum or understanding from the OTS, the Commission or any other agency to
make any material change in the method of conducting their respective businesses; the Primary
Parties and each Bank Subsidiary have conducted and are conducting their respective businesses so
as to comply in all respects with all applicable statutes and regulations (including, without
limitation, regulations, decisions, directives and orders of the OTS and the Commission), except
where the failure to so comply would not reasonably be expected to result in a Material Adverse
Effect, and there is no charge, investigation, action, suit or proceeding before or by any court,
regulatory authority or governmental agency or body pending or, to the knowledge of any of the
Primary Parties or any Bank Subsidiary, threatened, which would reasonably be expected to
materially and adversely affect the Conversion, the performance of this Agreement, or the
consummation of the transactions contemplated in the Plan as described in the Registration
Statement, or which would reasonably be expected to result in a Material Adverse Effect.
(dd) Prior to the Closing Date, the Primary Parties will have received an opinion of their
special counsel, Xxxx Xxxxxx Xxxxxxxx & Xxxxxx, P.C., with respect to the federal income tax
consequences of the Conversion, as described in the Registration Statement and the Prospectus, and
an opinion from Xxxxx Xxxxxxx LLP with respect to the tax consequences of the Conversion under the
laws of the States of Florida and Georgia; and the
14
facts and representations upon which such opinions will be based, will be truthful, accurate
and complete, and none of the Primary Parties will take any action inconsistent therewith.
(ee) The Primary Parties have timely filed all required federal, state and local tax returns,
paid all taxes that have become due and payable, and have made adequate reserves for known future
tax liabilities, and no deficiency has been asserted with respect thereto by any taxing authority.
(ff) No approval, authorization, consent or other order of any regulatory or supervisory or
other public authority is required for the execution and delivery by the Primary Parties of this
Agreement, or the sale and issuance of the Offer Shares and the issuance of the Exchange Shares,
except for the approval of the OTS and the Commission and any necessary qualification,
notification, or registration or exemption under the securities or blue sky laws of the various
states in which the Offer Shares are to be offered for sale and the Exchange Shares are to be
issued.
(gg) None of the Primary Parties has: (i) issued any securities within the last 18 months
(except for (a) notes to evidence bank loans or other liabilities in the ordinary course of
business or as described in the Prospectus, (b) shares of Common Stock issued with respect to the
initial capitalization of the Holding Company and (c) shares of common stock of the Mid-Tier
Holding Company issued pursuant to the Mid-Tier Holding Company’s Employee Stock Ownership Plan or
the Atlantic Coast Federal Corporation 2005 Recognition and Retention Plan and options issued
(including the exercise of such options) pursuant to the Atlantic Coast Federal Corporation 2005
Stock Option Plan or as described in the Prospectus); (ii) had any dealings with respect to sales
of securities within the 12 months prior to the date hereof with any member of FINRA, or any person
related to or associated with such member, other than discussions and meetings relating to the
Offering and purchases and sales of U.S. government and agency and other securities in the ordinary
course of business; (iii) entered into a financial or management consulting agreement relating to
the Conversion and the Offering except for the Letter Agreement and as contemplated hereunder; or
(iv) engaged any intermediary between the Agent and the Primary Parties in connection with the
Offering or the offering of shares of the common stock of the Mid-Tier Holding Company, and no
person is being compensated in any manner for such services.
(hh) Neither any of the Primary Parties nor, to the knowledge of the Primary Parties, any
employee of the Primary Parties, has made any payment of funds of the Primary Parties as a loan to
any person for the purchase of Offer Shares, except for the Holding Company’s loan to the employee
stock ownership plan the proceeds of which will be used to purchase Offer Shares and the Mid-Tier
Holding Company’s existing loan to the employee stock ownership plan, or has made any other payment
or loan of funds prohibited by law, and no funds have been set aside to be used for any payment
prohibited by law.
(ii) The Bank complies 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.
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(jj) The Primary Parties have not relied upon the Agent or its counsel for any legal, tax or
accounting advice in connection with the Conversion.
(kk) The records of Eligible Account Holders and Supplemental Eligible Account Holders and
Other Depositors are accurate and complete in all material respects.
(ll) The Primary Parties comply in all respects with all laws, rules and regulations relating
to environmental protection, except where the failure to comply would not result in a Material
Adverse Effect, and none of them has been notified or is otherwise aware that any of them is
potentially liable, or is considered potentially liable, under the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended, or any other Federal, state or local
environmental laws and regulations; no action, suit, regulatory investigation or other proceeding
is pending, or to the knowledge of the Primary Parties, threatened against the Primary Parties
relating to environmental protection, nor do the Primary Parties have any reason to believe any
such proceedings may be brought against any of them; and no disposal, release or discharge of
hazardous or toxic substances, pollutants or contaminants, including petroleum and gas products, as
any of such terms may be defined under federal, state or local law, has occurred on, in, at or
about any facilities or properties owned or leased by any of the Primary Parties or in which the
Bank has a security interest, except, in the case of facilities or properties in which the Bank has
a security interest, to the extent such disposal, release or discharge would not have a Material
Adverse Effect.
(mm) All of the loans represented as assets in the most recent financial information of the
Primary Parties included in the Prospectus meet or are exempt from all requirements of federal,
state and local law pertaining to lending, including, without limitation, truth in lending
(including the requirements of Regulations Z and 12 C.F.R. Part 226), 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 result in a Material Adverse
Effect.
(nn) None of the Primary Parties are required to be registered as an investment company under
the Investment Company Act of 1940, as amended.
(oo) To the Holding Company’s, the Mid-Tier Holding Company’s, the MHC’s and the Bank’s
knowledge, there are no affiliations or associations between any member of the FINRA and any of the
Holding Company’s, the Mid-Tier Holding Company’s, the MHC’s and the Bank’s officers, directors or
5% or greater securityholders, except as set forth in the Registration Statement and the
Prospectus.
(pp) The statistical and market related data contained in any Permitted Free Writing
Prospectus, the Prospectus and the Registration Statement are based on or derived from sources
which the Holding Company, the Mid-Tier Holding Company, the MHC and the Bank believe were reliable
and accurate at the time they were filed with the Commission. No forward-looking statement (within
the meaning of Section 27A of the 1933 Act and Section 21E of the 0000 Xxx) contained in the
Registration Statement, the Prospectus, or any Permitted Free Writing Prospectus has been made or
reaffirmed without a reasonable basis or has been disclosed other than in good faith.
16
(qq) The Primary Parties have taken all actions necessary to obtain at Closing a Blue Sky
Memorandum from Xxxx Xxxxxx Xxxxxxxx & Xxxxxx, P.C. on which Stifel may rely.
Any certificates signed by an officer of any of the Primary Parties and delivered to the Agent
or its counsel that refer to this Agreement shall be deemed to be a representation and warranty by
the Primary Parties to the Agent as to the matters covered thereby with the same effect as if such
representation and warranty were set forth herein.
Section 7. Representations and Warranties of the Agent. Stifel represents and warrants
to the Primary Parties that:
(a) Stifel is a corporation and is validly existing and in good standing under the laws of the
State of Missouri with full power and authority to provide the services to be furnished to the
Primary Parties hereunder.
(b) The execution, delivery and performance of this Agreement and the consummation of the
transactions contemplated herein have been duly and validly authorized by all necessary corporate
action on the part of Stifel, and each of this Agreement and the Letter Agreement is the legal,
valid and binding agreement of Stifel, enforceable in accordance with its terms, except to the
extent, if any, that the provisions of Sections 11 and 12 hereof may be unenforceable as against
public policy, and except to the extent that such enforceability may be limited by bankruptcy laws,
insolvency laws, or other laws affecting the enforcement of creditors’ rights generally or general
equity principles.
(c) Each of the Agent and its employees, agents and representatives who shall perform any of
the services hereunder shall have, and until the Offering is consummated or terminated shall
maintain, all licenses, approvals and permits necessary to perform such services and shall comply
in all material respects with all applicable laws and regulations in connection with the
performance of such services.
(d) No action, suit, charge or proceeding before the Commission, FINRA, any state securities
commission or any court is pending, or to the knowledge of the Agent, threatened against the Agent
which, if determined adversely to such Agent, would have a material adverse effect upon the ability
of Agent to perform its obligations under this Agreement.
(e) Agent is registered as a broker/dealer pursuant to Section 15(b) of the 1934 Act and is a
member of FINRA.
(f) Any funds received in the Offering by the Agent will be handled by the Agent in accordance
with Rule 15c2-4 under the 1934 Act to the extent applicable.
Section 8. Covenants of the Primary Parties. The Primary Parties hereby jointly and
severally covenant with the Agent as follows:
(a) The Holding 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 review and comment on such amendment or
supplement or file any amendment or supplement to the Registration Statement to
17
which amendment or supplement the Agent or its counsel shall reasonably object. The Holding
Company will furnish promptly to the Agent and its counsel copies of all correspondence from the
Commission with respect to the Registration Statement and the Holding Company’s responses thereto.
(b) The Holding Company represents and agrees that, unless it obtains the prior consent of the
Agent, and the Agent represents and agrees that, unless it obtains the prior consent of the Holding
Company, it has not made and will not make any offer relating to the Offer Shares that would
constitute an “issuer free writing prospectus,” as defined in Rule 433, or that would constitute a
“free writing prospectus,” as defined in Rule 405, required to be filed with the Commission. Any
such free writing prospectus consented to by the Holding Company and the Agent is hereinafter
referred to as a “Permitted Free Writing Prospectus.” The Holding Company represents that it has
and will comply with the requirements of Rule 433 applicable to any Permitted Free Writing
Prospectus, including timely Commission filing where required, legending and record keeping. The
Holding Company need not treat any communication as a free writing prospectus if it is exempt from
the definition of prospectus pursuant to Clause (a) of Section 2(a)(10) of the 1933 Act without
regard to Rule 172 or 173.
(c) The Primary Parties will not, at any time after the Holding Company and the Conversion
Application (the “Applications”) are approved, file any amendment or supplement to such
applications without providing the Agent and its counsel an opportunity to review and comment on
such amendment or supplement or file any amendment or supplement to such applications to which
amendment or supplement the Agent or its counsel shall reasonably object. The Primary Parties will
furnish promptly to the Agent and its counsel copies of all correspondence from the OTS with
respect to the Applications and the Primary Parties’ responses thereto.
(d) The Primary Parties will use their best efforts to cause the OTS to approve the Holding
Company’s acquisition of the Bank, and 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 Conversion Application to be approved by the OTS, as applicable,
and will promptly 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
Conversion Application as amended, has been approved by the OTS; (iii) when the Holding Company
Application, as amended, has been approved by the OTS; (iv) of the receipt of any comments from the
OTS, or any other governmental entity with respect to the Conversion or the transactions
contemplated by this Agreement; (v) of any request by the Commission, the OTS, or any other
governmental entity for any amendment or supplement to the Registration Statement or the
Applications or for additional information; (vi) of the issuance by the Commission, the OTS, or any
other governmental agency of any order or other action suspending the Offering or the use of the
Registration Statement, the Prospectus, the Depositors’ Proxy Statement, the Stockholders’ Proxy
Statement or any other filing of the Primary Parties under the Conversion Regulations or other
applicable law, or the threat of any such action; (vii) of the issuance by the Commission, the OTS,
or any other state 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 (viii) of the occurrence of any event mentioned in subsection (g) below. The Primary
Parties will make every reasonable effort to
18
prevent the issuance by the Commission, the OTS, or any other state authority of any order
referred to in (vi) and (vii) above and, if any such order shall at any time be issued, to obtain
the lifting thereof at the earliest possible time.
(e) The Primary Parties will deliver to the Agent and to its counsel conformed copies of each
of the following documents, with all exhibits: the Applications as originally filed and of each
amendment or supplement thereto, and the Registration Statement, as originally filed and each
amendment thereto. Further, the Primary Parties will deliver such additional copies of the
foregoing documents to counsel to the Agent as may be required for any FINRA filings. In addition,
the Primary Parties will also deliver to the Agent such number of copies of the Prospectus, as
amended or supplemented, as the Agent may reasonably request.
(f) The Primary Parties will comply in all material respects with any and all terms,
conditions, requirements and provisions with respect to the Conversion and the transactions
contemplated thereby imposed by the Commission, by applicable state law and regulations, and by the
1933 Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulations to be complied with
prior to the Closing Date; and when the Prospectus is required to be delivered, the Primary Parties
will comply in all material respects, at their own expense, with all requirements imposed upon them
by the OTS, the Conversion Regulations (except as modified or waived in writing by the OTS), the
Commission, by applicable state law and regulations and by the 1933 Act, the 1934 Act and the rules
and regulations of the Commission promulgated under such statutes, in each case as from time to
time in force, so far as is necessary to permit the continuance of sales or dealing in shares of
Common Stock during such period in accordance with the provisions hereof and the Prospectus.
(g) The Primary Parties will inform the Agent of any event or circumstance of which they are
or become aware as a result of which the Registration Statement and/or Prospectus, as then
supplemented or amended, would include an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein not misleading. If it is necessary,
in the reasonable opinion of counsel for the Primary Parties, to amend or supplement the
Registration Statement or the Prospectus in order to correct such untrue statement of a material
fact or to make the statements therein not misleading in light of the circumstances existing at the
time of their use, the Primary Parties will, at their expense, prepare, file with the Commission
and the OTS, and furnish to the Agent, a reasonable number of copies of an amendment or amendments
of, or a supplement or supplements to, the Registration Statement and the Prospectus (in form and
substance reasonably satisfactory to counsel for the Agent after a reasonable time for review)
which will amend or supplement the Registration Statement and/or the 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, not misleading. For the purpose of this subsection, each of the Primary
Parties will furnish such information with respect to itself as the Agent may from time to time
reasonably request.
(h) Pursuant to the terms of the Plan, the Holding Company will endeavor in good faith, in
cooperation with the Agent, to register or to qualify the Shares for offering, sale and exchange or
to exempt such Shares from registration and to exempt the Holding Company and its officers,
directors and employees from registration as broker-dealers, under the applicable
19
securities laws of the jurisdictions in which the Offering will be conducted; provided,
however, that the Holding Company shall not be obligated to file any general consent to service of
process or to qualify as a foreign corporation to do business in any jurisdiction in which it is
not so qualified. In each jurisdiction where any of the Shares shall have been registered or
qualified as above provided, the Holding Company will make and file such statements and reports in
each year as are or may be required by the laws of such jurisdiction.
(i) Upon consummation of the Conversion, the Holding Company and the Bank will establish a
liquidation account for the benefit of the Bank’s depositors, in accordance with the Plan and the
requirements of the Conversion Regulations.
(j) The Holding Company will not sell or issue, contract to sell or otherwise dispose of, for
a period of ninety (90) days after the date hereof, any shares of Common Stock or securities into
or exercisable for shares of Common Stock, without the Agent’s prior written consent other than in
connection with any plan or arrangement described in the Prospectus.
(k) For a period of three years from the date of this Agreement, the Holding Company will
furnish to the Agent, as soon as practical after such information is available (i) a copy of each
report of the Holding 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 Holding Company is
listed or quoted, (ii) a copy of each report of the Holding Company mailed to holders of Common
Stock, (iii) each press release and material news item and article released by the Holding Company
and/or Bank, and (iv) from time-to-time, such other publicly available information concerning the
Primary Parties as the Agent may reasonably request. For purposes of this paragraph, any document
filed electronically with the Commission shall be deemed to be furnished to the Agent.
(l) The Primary Parties will use the net proceeds from the sale of the Common Stock in the
manner set forth in the Prospectus under the caption “How We Intend to Use the Proceeds From the
Offerings.”
(m) The Holding Company and the Bank will distribute the Prospectus and other offering
materials in connection with the offering and sale of the Common Stock only in accordance with the
Conversion Regulations, the 1933 Act and the 1934 Act and the rules and regulations promulgated
under such statutes, and, as applicable, the laws of any state in which the shares are qualified
for sale.
(n) Prior to the Closing Date, the Holding Company shall register its Common Stock under
Section 12(b) of the 1934 Act, and will request that such registration statement be effective no
later than the completion of the Conversion. The Holding Company shall maintain the effectiveness
of such registration for not less than three years or such shorter period as permitted by the OTS.
(o) For so long as the Common Stock is registered under the 1934 Act, the Holding Company will
furnish to its stockholders as soon as practicable after the end of each fiscal year such reports
and other information as are required to be furnished to its stockholders under the 1934 Act.
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(p) The Holding Company will report the use of proceeds of the Offering in accordance with
Rule 463 under the 1933 Act Regulations.
(q) The Primary Parties will maintain appropriate arrangements for depositing all funds
received from persons mailing subscriptions for all orders to purchase Offer Shares in the
subscription offering or community offering on an interest bearing basis (all funds received by
check will be deposited in a segregated account at the Bank no later than 12:00 noon on the
Business Day after receipt) as described in the Prospectus until the Closing Date and satisfaction
of all conditions precedent to the release of the Holding Company’s obligation to refund payments
received from persons subscribing for or ordering Offer Shares in the Offering, in accordance with
the Plan 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 Primary Parties 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 Primary Parties 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.
(r) Within ninety (90) days following the Closing Date, the Holding Company will register as a
savings and loan holding company under HOLA.
(s) The Primary Parties will take such actions and furnish such information as are reasonably
requested by the Agent in order for the Agent to ensure compliance with FINRA Rule 5130
(Restrictions on the Purchase and Sale of IPOs of Equity Securities).
(t) The Primary Parties will conduct their businesses in compliance in all material respects
with all applicable federal and state laws, rules, regulations, decisions, directives and orders,
including all decisions, directives and orders of the Commission and the OTS.
(u) The Primary Parties shall comply with any and all terms, conditions, requirements and
provisions with respect to the Conversion and the transactions contemplated thereby imposed by the
OTS, the HOLA, the Commission, the 1933 Act, the 1933 Act Regulations, the 1934 Act, the 1934 Act
Regulations to be complied with subsequent to the Closing Date. The Holding Company will comply
with all provisions of all undertakings contained in the Registration Statement.
(v) The Primary Parties will not amend the Plan without notifying the Agent prior thereto.
(w) The Holding Company shall provide Stifel with any information necessary to allow Stifel to
assist with the allocation process in order to permit the Holding Company to carry out the
allocation of the Offer Shares in the event of an oversubscription, and such information shall be
accurate and reliable in all material respects.
(x) The Holding Company will not deliver the Shares until the Primary Parties have satisfied
or caused to be satisfied each condition set forth in Section 10 hereof, unless such condition is
waived in writing by Stifel.
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(y) On or before the Closing Date, the Primary Parties will have completed all conditions
precedent to the Conversion specified in the Plan and the offer, sale and issuance of the Shares
will have been conducted in all material respects in accordance with the Plan, the Conversion
Regulations (except as modified or waived in writing by the OTS) and with all other applicable
laws, regulations, decisions and orders, including all terms, conditions, requirements and
provisions precedent to the Conversion imposed upon any of the Primary Parties by the OTS, the
Commission, or any other regulatory authority and in the manner described in the Prospectus.
(z) Immediately upon completion of the sale by the Holding Company of the Offer Shares, the
issuance of the Exchange Shares and the completion of certain transactions necessary to implement
the Plan, (i) all of the issued and outstanding shares of capital stock of the Bank shall be owned
by the Holding Company, (ii) the Holding Company shall have no direct subsidiaries other than the
Bank, and (iii) the Conversion shall have been effected in all material respects in accordance with
all applicable statutes, regulations, decisions and orders; and all terms, conditions, requirements
and provisions with respect to the Conversion (except those that are conditions subsequent) imposed
by the OTS, the Commission, or any other governmental agency, if any, shall have been complied with
by the Primary Parties in all material respects or appropriate waivers shall have been obtained and
all notice and waiting periods shall have been satisfied, waived or elapsed.
(aa) Prior to the Closing Date, the Plan shall have been approved by the members of the MHC
and the stockholders of the Mid-Tier Holding Company in accordance with the Plan, the Conversion
Regulations, the applicable provisions, if any, of the MHC’s charter and bylaws, the Mid-Tier
Holding Company’s charter and bylaws, the Depositors’ Proxy Statement and the Stockholders’ Proxy
Statement.
(bb) The Holding Company shall notify the Agent when funds shall have been received for the
minimum number of Offer Shares set forth in the Prospectus.
(cc) The officers and directors of the Primary Parties, listed in Exhibit C of this
Agreement, shall not exercise any stock options providing for the issuance of shares of common
stock in the Mid-Tier Holding Company during the Offering or otherwise sell or transfer any shares
of Common Stock commencing on the date hereof and continuing for a period of ninety (90) days
following the Closing Date (the “Restricted Period”). The Primary Parties shall not honor the
exercise of any stock options providing for the issuance of shares of common stock in the Mid-Tier
Holding Company by any such officer or director during the Offering, nor shall the Holding Company
otherwise assist such officers or directors in connection with the sale or transfer of shares of
Common Stock during the Restricted Period.
Section 9. Payment of Expenses.
(a) Whether or not the Conversion is completed or the sale, issuance and exchange of the
Shares by the Holding Company is consummated, the Primary Parties will pay for all their expenses
incident to the performance of this Agreement, including without limitation: (i) the preparation
and filing of the Applications and Registration Statement; (ii) the preparation, printing, filing,
delivery and mailing of the Registration Statement, including the
22
Prospectus, and all documents related to the Offering and proxy solicitation; (iii) all filing fees
and expenses in connection with the qualification or registration of the Shares for offer and sale
by the Holding Company or the Bank under the securities or “blue sky” laws, including without
limitation filing fees, reasonable legal fees and disbursements of counsel in connection therewith,
and in connection with the preparation of a blue sky law survey; (iv) the filing fees of FINRA
related to Stifel’s fairness filing under Rule 5110 of the FINRA; (v) fees and expenses related to
the preparation of the independent appraisal; (vi) fees and expenses related to providers providing
printing, data processing, auditing, accounting and other services; (vii) all expenses relating to
advertising, temporary personnel, investor meetings and stock information center; and (viii)
transfer agent fees and costs of preparation and distribution of stock certificates. In the event
that Stifel incurs any expenses on behalf of the Primary Parties, the Primary Parties will pay or
reimburse Stifel for such expenses regardless of whether the Conversion is successfully completed,
and such reimbursements will not be included in the expense limitations set forth in subsection (b)
of this Section 9.
(b) The Primary Parties also agree to reimburse Stifel for reasonable out-of-pocket expenses,
including legal fees and expenses, incurred by Stifel in connection with the services hereunder.
Stifel will not incur reimbursable legal fees (excluding counsel’s out-of-pocket expenses) in
excess of $100,000. In addition to legal fees, Stifel will not incur actual accountable
reimbursable out-of-pocket expenses in excess of $30,000 in the subscription and community
offerings and in excess of $20,000 in the syndicated community offering. The Primary Parties
acknowledge, however, that such limitations on expenses and legal fees may be increased by the
mutual consent of the Mid-Tier Holding Company and Stifel, including in the event of a material
delay in the Offering, which would require an update of the financial information contained in the
Prospectus to reflect a period later than set forth in the financial statements in the original
Registration Statement; provided, however that under such circumstances, Stifel will not incur
additional accountable reimbursable out-of-pocket expenses in excess of $10,000 or additional
reimbursable legal fees in excess of $20,000 and provided further that the aggregate of all
reimbursable expenses and legal fees shall not exceed $210,000.
(c) Not later than two (2) days prior to the Closing Date, Stifel will provide the Bank with a
detailed accounting of all reimbursable expenses of Stifel and its counsel to be paid at the
Closing.
Section 10. Conditions to the Agent’s Obligations. The obligations of the Agent
hereunder and the occurrence of the Closing and the Conversion are subject to the condition that
all representations and warranties of the Primary Parties herein contained are, at and as of the
commencement of the Offering and at and as of the Closing Date, true and correct, the condition
that the Primary Parties shall have performed all of their obligations hereunder to be performed on
or before such dates and to the following further conditions:
(a) The Registration Statement shall have been declared effective by the Commission, the
Conversion Application and the Holding Company Application shall have been approved by the OTS, and
no stop order or other action suspending the effectiveness of the Registration Statement shall have
been issued under the 1933 Act or proceedings therefor initiated or, to the knowledge of the
Primary Parties, threatened by the Commission or any state authority and no order or other action
suspending the authorization for use of the Prospectus or
23
the consummation of the Conversion shall have been issued, or proceedings therefor initiated
or, to the knowledge of the Primary Parties, threatened by the OTS, the Commission or any other
governmental body.
(b) At the Closing Date, the Agent shall have received:
(1) The opinion, dated as of the Closing Date, of Xxxx Xxxxxx Xxxxxxxx &
Xxxxxx, P.C. and/or local counsel acceptable to the Agent, in form and substance
satisfactory to the Agent and counsel for the Agent attached hereto as Exhibit E.
(2) The letter of Xxxx Xxxxxx Xxxxxxxx & Xxxxxx, P.C. in form and substance to
the effect that during the preparation of the Registration Statement and the
Prospectus, Luse, Gorman, Xxxxxxxx & Xxxxxx, P.C. participated in conferences with
certain officers of and other representatives of the Primary Parties, counsel to the
Agent, representatives of the independent public accountants for the Primary Parties
and representatives of the Agent at which the contents of the Registration Statement
and the Prospectus and related matters were discussed and has considered the matters
required to be stated therein and the statements contained therein and, although
(without limiting the opinions provided pursuant to Section 10(b)(1)), Xxxx Xxxxxx
Xxxxxxxx & Xxxxxx, P.C. has not independently verified the accuracy, completeness or
fairness of the statements contained in the Registration Statement and Prospectus,
on the basis of the foregoing, nothing has come to the attention of Luse, Gorman,
Xxxxxxxx & Xxxxxx, P.C. that caused Xxxx Xxxxxx Xxxxxxxx & Xxxxxx, P.C. to believe
that the Registration Statement at the time it was declared effective by the
Commission and as of the date of such letter or that the General Disclosure Package
as of the Applicable Time, contained or contains any untrue statement of a material
fact or omitted to state any material fact required to be stated therein or
necessary to make the statements therein in light of the circumstances under which
they were made not misleading (it being understood that counsel need express no
comment or opinion with respect to financial statements, notes to financial
statements, schedules and other financial and statistical data included, or
statistical or appraisal methodology employed, in the Registration Statement, or
Prospectus or General Disclosure Package).
(3) The favorable opinion, dated as of the Closing Date, of Xxxxxxxxxx Xxxxxxxx
LLP, counsel for Stifel, with respect to such matters as the Agent may reasonably
require; such opinion may rely, as to matters of fact, upon certificates of officers
and directors of the Primary Parties delivered pursuant hereto or as such counsel
may reasonably request and upon the opinion of Xxxx Xxxxxx Xxxxxxxx & Xxxxxx, P.C.
(4) The letter of Xxxxxxxxxx Xxxxxxxx LLP in form and substance to the effect
that during the preparation of the Registration Statement and the Prospectus,
Xxxxxxxxxx Xxxxxxxx LLP participated in conferences with certain officers of and
other representatives of the Primary Parties, counsel to the Primary
24
Parties, representatives of the independent public accountants for the Primary
Parties and representatives of the Agent at which the contents of the Registration
Statement and the Prospectus and related matters were discussed and has considered
the matters required to be stated therein and the statements contained therein and,
although (without limiting the opinions provided pursuant to Section 10(b)(3)),
Xxxxxxxxxx Xxxxxxxx LLP has not independently verified the accuracy, completeness or
fairness of the statements contained in the Registration Statement and Prospectus,
on the basis of the foregoing, nothing has come to the attention of Xxxxxxxxxx
Xxxxxxxx LLP that caused Xxxxxxxxxx Xxxxxxxx LLP to believe that the Registration
Statement at the time it was declared effective by the Commission and as of the date
of such letter or that the General Disclosure Package as of the Applicable Time,
contained or contains any untrue statement of a material fact or omitted to state
any material fact required to be stated therein or necessary to make the statements
therein in light of the circumstances under which they were made not misleading (it
being understood that counsel need express no comment or opinion with respect to
financial statements, notes to financial statements, schedules and other financial
and statistical data included, or statistical or appraisal methodology employed, in
the Registration Statement, or Prospectus or General Disclosure Package).
(5) A Blue Sky Memorandum from Xxxx Xxxxxx Xxxxxxxx & Xxxxxx, P.C. addressed to
the Holding Company and the Agent relating to the Offering and the Exchange,
including Agent’s participation therein. The Blue Sky Memorandum will address the
necessity of obtaining or confirming exemptions, qualifications or the registration
of the Common Stock under applicable state securities law.
(c) (i) Concurrently with the execution of this Agreement, the Agent shall receive a
letter from Xxxxx Xxxxxxx LLP, dated the date hereof and addressed to the Agent, such letter
confirming that Xxxxx Xxxxxxx LLP is a firm of independent registered public accountants
within the meaning of the 1933 Act, the 1933 Act Regulations and the PCAOB Regulations, and
stating in effect that the audited consolidated financial statements of the Mid-Tier Holding
Company included in the Prospectus comply as to form in all material respects with generally
accepted accounting principles, the 1933 Act and the 1933 Act Regulations, and the 1934 Act
and the 1934 Act Regulations;
(ii) Concurrently with the execution of this Agreement, the Agent shall receive a
letter from RSM McGladrey, Inc., dated the date hereof and addressed to the Agent, such
letter (i) confirming that RSM McGladrey, Inc. is a firm of independent registered public
accountants within the meaning of the 1933 Act, the 1933 Act Regulations and the PCAOB
Regulations; (ii) stating in effect that, on the basis of certain agreed upon procedures
(but not an audit examination in accordance with the auditing standards of the PCAOB)
consisting of a review (in accordance with Statement of Auditing Standards No. 100, Interim
Financial Information) of the unaudited consolidated interim financial statements of the
Mid-Tier Holding Company prepared by the Primary Parties included in the Prospectus, a
reading of the minutes of the meetings
25
of the Board of Directors, Executive Committee, Audit Committee, Loan Committee, Nominating
Committee and stockholders of the Mid-Tier Holding Company and the Bank and consultations
with officers of the Mid-Tier Holding Company and the Bank responsible for financial and
accounting matters, nothing came to their attention which caused them to believe that: (A)
any material modifications should be made to the unaudited consolidated financial statements
or the “Recent Developments” information in the Prospectus or that such unaudited
consolidated financial statements and “Recent Developments” information in the Prospectus
comply as to form in all material respects with the applicable requirements of the 1933 Act
and the 1933 Act Regulations; or (B) during the period from the date of the “Recent
Developments” financial information included in the Prospectus to a specified date not more
than three (3) business days prior to the date of the Prospectus, there was any material
increase in borrowings (defined as securities sold under agreements to repurchase and any
other form of debt other than deposits), or non-performing loans, non-performing assets,
special mention loans or decrease in the deposits or loan allowance, total assets,
stockholders’ equity or there was any change in common stock outstanding (other than for
stock option plans) at the date of such letter as compared with amounts shown in the
December 31, 2009 audited statement of condition included in the Prospectus or there was any
decrease in net interest income, non-interest income, net interest income after provision or
net income, or increase in provision for loan losses or non-interest expense of the Primary
Parties for the period commencing immediately after the Recent Development date and ended
not more than three (3) business days prior to the date of the Prospectus as compared to the
corresponding period in the preceding year; and (iii) stating that, in addition to the
examination referred to and the performance of the procedures referred to in clause (ii) of
this subsection (c), they have compared with the general accounting records of the Mid-Tier
Holding Company, which are subject to the internal controls of the accounting system of the
Mid-Tier Holding Company, and other data prepared by the Primary Parties from accounting
records, to the extent specified in such letter, such amounts and/or percentages set forth
in the Prospectus as the Agent may reasonably request, and they have found such amounts and
percentages to be in agreement therewith (subject to rounding).
(d) (i) At the Closing Date, the Agent shall receive a letter from Xxxxx Xxxxxxxx LLP
dated the Closing Date, addressed to the Agent, confirming the statements made by its letter
delivered by it pursuant to subsection (c)(i) of this Section 10, the “specified date”
referred to in clause (ii)(B) thereof to be a date specified in such letter, which shall not
be more than three (3) business days prior to the Closing Date.
(ii) At the Closing Date, the Agent shall receive a letter from RSM McGladrey, Inc.
dated the Closing Date, addressed to the Agent, confirming the statements made by its letter
delivered by it pursuant to subsection (c)(i) of this Section 10, the “specified date”
referred to in clause (ii)(B) thereof to be a date specified in such letter, which shall not
be more than three (3) business days prior to the Closing Date
(e) At the Closing Date, counsel to the Agent shall have been furnished with such documents
and opinions as counsel for the Agent may require for the purpose of enabling them to advise the
Agent with respect to the issuance and sale of the Common Stock as herein
26
contemplated and related proceedings, or in order to evidence the accuracy of any of the
representations and warranties, or the fulfillment of any of the conditions herein contained.
(f) At the Closing Date, the Agent shall receive a certificate of the Chief Executive Officer
and Chief Financial Officer of each of the Primary Parties, dated the Closing Date, to the effect
that: (i) they have examined the Registration Statement and at the time the Registration Statement
became effective and the Prospectus was authorized for final 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 not misleading; (ii) there has not been, since the respective dates as of which
information is given in the Registration Statement, any Material Adverse Effect otherwise than as
set forth or contemplated in the Registration Statement; (iii) the representations and warranties
contained in Section 6 of this Agreement are true and correct with the same force and effect as
though made at and as of the Closing Date; (iv) the Primary Parties 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 including the conditions contained in this Section 10;
(v) no stop order has been issued or, to the best of their knowledge, is threatened, by the
Commission or any other governmental body; (vi) no order suspending the Offering and the Exchange,
the Conversion, the acquisition of all of the shares of the Bank by the Holding Company, the
transactions required under the Plan to consummate the Conversion or the effectiveness of the
Registration Statement has been issued and to the best of their knowledge, no proceedings for any
such purpose have been initiated or threatened by the OTS, the Commission, or any other federal or
state authority; (vii) to the best of their knowledge, no person has sought to obtain regulatory or
judicial review of the action of the OTS in approving the Plan or to enjoin the Conversion, and
(viii) that the officers and directors of the Primary Parties have agreed to abide by the
restrictions on the exercise of options and sale of Common Stock set forth in Section 8(cc).
(g) At the Closing Date, the Agent shall receive a letter from RP Financial, LC., dated as of
the Closing Date, (i) confirming that said firm is independent of the Primary Parties and is
experienced and expert in the area of corporate appraisals, (ii) stating in effect that the
Appraisal complies in all material respects with the applicable requirements of the Conversion
Regulations, and (iii) further stating that its opinion of the aggregate pro forma market value of
the Shares, expressed in the Appraisal as most recently updated, remains in effect.
(h) Prior to and at the Closing Date, none of the Primary Parties shall have sustained, since
the date of the latest financial statements included in the Registration Statement and 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 in the Registration Statement and the Prospectus, and
since the respective dates as of which information is given in the Registration Statement and the
Prospectus, there shall not have been any material change, or any development involving a
prospective material change in, or affecting the general affairs of, management, financial
position, retained earnings, long-term debt, stockholders’ equity or results of operations of any
of the Primary Parties, otherwise than as set forth or contemplated in the Registration Statement
and the Prospectus, the effect of which, in any such case described above, in the Agent’s
reasonable judgment, is sufficiently material and adverse as to make it
27
impracticable or inadvisable to proceed with the Offering or the Exchange or the delivery of
the Shares on the terms and in the manner contemplated in the Prospectus and the Stockholders’
Proxy Statement.
(i) Prior to and at the Closing Date: (i) in the reasonable opinion of the Agent, there shall
have been no material adverse change in the financial condition or in the earnings, capital,
properties or business affairs of the Primary Parties considered as one enterprise, from and as of
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 material transaction entered into by the Primary Parties,
independently or considered as one enterprise, from the latest date as of which the financial
condition of the Primary Parties is set forth in the Prospectus, other than transactions referred
to or contemplated therein; (iii) none of the Primary Parties shall 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 in all material respects (which direction, if any,
shall have been disclosed to the Agent) and which would reasonably be expected to have a Material
Adverse Effect; (iv) none of the Primary Parties shall 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 material outstanding indebtedness; (v) 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 Primary Parties,
threatened against any of the Primary Parties or affecting any of their properties wherein an
unfavorable decision, ruling or finding would reasonably be expected to have a Material Adverse
Effect; and (vi) the Shares shall have been qualified or registered for offering, sale and
exchange, as applicable, under the securities or “blue sky” laws of the jurisdictions requested by
the Agent.
(j) At or prior to the Closing Date, the Agent shall receive (i) a copy of the Conversion
Application and a copy of the letters from the OTS approving the Conversion Application and
authorizing the Prospectus, Depositors’ Proxy Statement and Stockholders’ Proxy Statement for use,
(ii) if available, a copy of the order from the Commission declaring the Registration Statement
effective, (iii) a certified copy of the articles of incorporation of the Holding Company, (iv) a
copy of Holding Company Application and a copy of the letter from the OTS approving the Holding
Company Application, (v) a certificate from the FDIC evidencing the Bank’s insurance of accounts,
and (vi) any other documents that Agent shall reasonably request.
(k) The “lock-up” agreements, each substantially in the form of Exhibit D hereto,
between the Agent and the persons set forth on Exhibit C hereto, relating to sales and
certain other dispositions of shares of Common Stock or certain other securities, shall be
delivered to the Agent on or before the date hereof and shall be in full force and effect on the
Closing Date.
(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
American 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
28
exchanges or FINRA or by order of the Commission or any other governmental authority other
than temporary trading halts or limitation (A) imposed as a result of intraday changes in the Dow
Xxxxx Industrial Average, (B) lasting no longer than until the regularly scheduled commencement of
trading on the next succeeding business-day and (C) which when combined with all other such halts
occurring during the previous five (5) business days, total less than three (3); (ii) a general
moratorium on the operations of federally-insured financial institutions or a general moratorium on
the withdrawal of deposits from commercial banks or other federally-insured financial institutions
declared by either federal or state authorities; (iii) any material adverse change in the financial
markets in the United States or elsewhere; or (iv) any outbreak of hostilities or escalation
thereof or other calamity or crisis, including, without limitation, terrorist activities after the
date hereof, the effect of any of (i) through (iv) herein, in the judgment of the Agent, is so
material and adverse as to make it impracticable to market the Shares or to enforce contracts,
including subscriptions or purchase orders, for the sale of the Shares.
All such opinions, certificates, letters and documents will be in compliance with the
provisions hereof only if they are reasonably satisfactory in form and substance to the Agent and
to counsel for the Agent. Any certificate signed by an officer of the MHC, the Mid-Tier Holding
Company, the Holding Company or the Bank and delivered to the Agent or to counsel for the Agent
shall be deemed a representation and warranty by the MHC, the Mid-Tier Holding Company, the Holding
Company or the Bank, as the case may be, to the Agent as to the statements made therein. If any
condition to the Agent’s obligations hereunder to be fulfilled prior to or at the Closing Date is
not fulfilled, the Agent may terminate this Agreement (provided that if this Agreement is so
terminated but the sale of Shares is nevertheless consummated, the Agent shall be entitled to the
full compensation provided for in Section 4 hereof) or, if the Agent so elect, may waive any such
conditions which have not been fulfilled or may extend the time of their fulfillment.
Section 11. Indemnification.
(a) The Primary Parties, jointly and severally, agree to indemnify and hold harmless the
Agent, its officers, directors, agents, attorneys, servants and employees and each person, if any,
who control 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, subject to the limitation set forth in the last sentence of
subsection (c) below), joint or several, that the Agent or any of such officers, directors, agents,
attorneys, servants, employees and controlling Persons (collectively, the “Related Persons”) may
suffer or to which the Agent or the Related Persons may become subject under all applicable federal
and state laws or otherwise, and to promptly reimburse the Agent and any Related Persons upon
written demand for any reasonable expenses (including reasonable fees and disbursements of counsel)
incurred by the Agent or any Related Persons 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 Prospectus (or any amendment or supplement thereto),
any Issuer-Represented Free Writing Prospectus, the Applications, or any blue sky application, or
other instrument or document of the Primary Parties or based upon written information supplied by
any of the Primary Parties filed in
29
any state or jurisdiction to register or qualify any or all of the Shares under the securities
laws thereof (collectively, the “Blue Sky Applications”), or any application or other document,
advertisement, or communication (“Sales Information”) prepared, made or executed by or on behalf of
any of the Primary Parties with its consent or based upon written information furnished by or on
behalf of any of the Primary Parties, whether or not filed in any jurisdiction, in order to qualify
or register the Shares 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; (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), the Prospectus (or any amendment or supplement thereto), any
Issuer-Represented Free Writing Prospectus, the Applications, any Blue Sky Applications or Sales
Information or other documentation distributed in connection with the Offering; or (iv) result from
any claims made with respect to the accuracy, reliability and completeness of the records of
Eligible Account Holders and Supplemental Eligible Account Holders or Other Depositors or for any
denial or reduction of a subscription or order to purchase Common Stock, whether as a result of a
properly calculated allocation pursuant to the Plan or otherwise, based upon such records;
provided, however, that no indemnification is required under this subsection (a) to the extent such
losses, claims, damages, liabilities or actions arise out of or are based upon any untrue material
statements or alleged untrue material statements in, or material omission or alleged material
omission from, the Registration Statement (or any amendment or supplement thereto) or the
Prospectus (or any amendment or supplement thereto), any Issuer-Represented Free Writing
Prospectus, the Applications, the Blue Sky Applications or Sales Information or other documentation
distributed in connection with the Conversion made in reliance upon and in conformity with written
information furnished to the Primary Parties by the Agent or its representatives (including
counsel) with respect to the Agent expressly for use in the Registration Statement (or any
amendment or supplement thereto) or Prospectus (or any amendment or supplement thereto) under the
caption “The Conversion Offering – Plan of Distribution; Selling Agent Compensation”; provided,
further, that the Primary Parties will not be responsible for any loss, liability, claim, damage or
expense to the extent a court of competent jurisdiction finds they result primarily from material
oral misstatements by the Agent to a purchaser of Shares that are not based upon information in the
Registration Statement or Prospectus, or from actions taken or omitted to be taken by the Agent in
bad faith or from the Agent’s gross negligence or willful misconduct, and the Agent agrees to repay
to the Primary Parties any amounts advanced to it by the Primary Parties in connection with matters
as to which it is found by a court of competent jurisdiction not to be entitled to indemnification
hereunder.
(b) The Agent agrees to indemnify and hold harmless the Primary Parties, their directors and
officers, agents, servants and employees and each person, if any, who controls any of the Primary
Parties 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, subject to the limitation set forth in the last sentence of subsection (c)
below), 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 Primary Parties and any such persons upon written demand for any reasonable expenses
(including fees and disbursements of counsel) incurred by them in connection with investigating,
preparing or defending any actions, proceedings or claims
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(whether commenced or threatened) to the extent such losses, claims, damages, liabilities or
actions arise out of or are based upon any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement (or any amendment or supplement thereto), any
Issuer-Represented Free Writing Prospectus, the Applications or any Blue Sky Applications or Sales
Information or are based upon the omission or alleged omission to state in any of the foregoing
documents a material fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made, not misleading; provided,
however, that each Agent’s obligations under this Section 11(b) shall exist only if and only to the
extent that such untrue statement or alleged untrue statement was made in, or such material fact or
alleged material fact was omitted from, the Applications, Registration Statement (or any amendment
or supplement thereto), the Prospectus (or any amendment or supplement thereto), any Blue Sky
Applications or Sales Information in reliance upon and in conformity with written information
furnished to the Primary Parties by the Agent or its representatives (including counsel) expressly
for use under the caption “The Conversion Offering – Plan of Distribution; Selling Agent
Compensation.”
(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 11, Section 12
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
the defense of such action with counsel chosen by it reasonably acceptable to the indemnified
parties that are defendants in such action, unless such indemnified parties reasonably object to
such assumption on the ground that there may be legal defenses available to them that are different
from or in addition to those available to such indemnifying party. If an indemnifying party assumes
the defense of such action, the indemnifying parties shall not be liable for any fees and expenses
of counsel for the indemnified parties incurred thereafter in connection with such action,
proceeding or claim, other than reasonable costs of investigation. In no event shall the
indemnifying parties be liable for the fees and expenses of more than one separate firm of
attorneys (unless an indemnified party or parties shall have reasonably concluded that there may be
defenses available to it or them which are different from or in addition to those of other
indemnified parties) for all indemnified parties 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. The Primary Parties shall be liable
for any settlement of any claim against the Agent (or its directors, officers, employees,
affiliates or controlling persons), made with the consent of the Primary Parties, which consent
shall not be unreasonably withheld. The Primary Parties shall not, without the written consent of
the Agent, settle or compromise any claim against them based upon circumstances giving rise to an
indemnification claim against the Primary Parties hereunder unless such settlement or compromise
provides that the Agent and the other indemnified parties shall be unconditionally and irrevocably
released from all liability in respect of such claim.
(d) The agreements contained in this Section 11 and in Section 12 hereof and the
representations and warranties of the Primary Parties set forth in this Agreement shall remain
31
operative and in full force and effect regardless of (i) any investigation made by or on
behalf of the Agent or its officers, directors, controlling persons, agents, attorneys, servants or
employees or by or on behalf of any of the Primary Parties or any officers, directors, controlling
persons, agents, attorneys, servants or employees of any of the Primary Parties; (ii) delivery of
and payment hereunder for the Shares; or (iii) any termination of this Agreement. To the extent
required by law, Sections 11 and 12 hereof are subject to and limited by Sections 23A and 23B of
the Federal Reserve Act.
Section 12. Contribution.
(a) In order to provide for just and equitable contribution in circumstances in which the
indemnification provided for in Section 11 is due in accordance with its terms but is found in a
final judgment by a court to be unavailable from the Primary Parties or the Agent, the Primary
Parties and the Agent shall contribute to the aggregate losses, claims, damages and liabilities of
the nature contemplated by such indemnification in such proportion so that (i) the Agent is
responsible for that portion represented by the percentage that the fees paid to the Agent pursuant
to Section 4 of this Agreement (not including expenses) (“Agent’s Fees”), less any portion of
Agent’s Fees paid by Stifel to Assisting Brokers, bear to the total proceeds received by the
Primary Parties from the sale of the Shares in the Offering, net of all expenses of the Offering,
except Agent’s Fees and (ii) the Primary Parties 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 11 above, then each indemnifying party shall contribute
to such amount paid or payable to such indemnified party in such proportion as is appropriate to
reflect not only such relative fault of the Primary Parties 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 thereof), but also the relative
benefits received by the Primary Parties on the one hand and the Agent on the other from the
Offering, as well as any other relevant equitable considerations. The relative benefits received by
the Primary Parties on the one hand and the Agent on the other hand shall be deemed to be in the
same proportion as the total proceeds from the Offering, net of all expenses of the Offering except
Agent’s Fees, received by the Primary Parties bear, with respect to the Agent, to the total fees
(not including expenses) received by the Agent less the portion of such fees paid by the Agent to
Assisting Brokers. 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 Primary Parties 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 Primary Parties
and the Agent agree that it would not be just and equitable if contribution pursuant to this
Section 12 were determined by pro-rata allocation or by any other method of allocation which does
not take account of the equitable considerations referred to above in this Section 12. The amount
paid or payable by an indemnified party as a result of the losses, claims, damages or liabilities
(or action, proceedings or claims in respect thereof) referred to above in this Section 12 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
32
Agreement less the portion of such fees paid by the Agent to Assisting Brokers. It is
understood and agreed 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 0000 Xxx) shall be entitled to
contribution with respect to any loss or liability arising from such misrepresentation from any
person who was not found guilty of such fraudulent misrepresentation. For purposes of this Section
12, each of Agent’s and the Primary Parties’ officers and directors and each person, if any, who
controls the Agent or any of the Primary Parties within the meaning of the 1933 Act and the 1934
Act shall have the same rights to contribution as the Primary Parties and the Agent. 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 12, 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
12.
Section 13. Survival. All representations, warranties and indemnities contained in
this Agreement (and in Paragraph 12 of the Letter Agreement, “Confidentiality”), or all statements
contained in certificates of officers of the Primary Parties or the Agent submitted pursuant
hereto, shall remain operative and 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 or its
controlling persons, or by or on behalf of the Primary Parties and shall survive the issuance of
the Shares, and any legal representative, successor or assign of the Agent, any of the Primary
Parties, and any indemnified person shall be entitled to the benefit of the respective agreements,
indemnities, warranties and representations.
Section 14. Termination. The Agent may terminate this Agreement by giving the notice
indicated below in this Section at any time after this Agreement becomes effective as follows:
(a) In the event (i) the Plan is abandoned or terminated by the Holding Company; (ii) the
Holding Company fails to consummate the sale and issuance of the minimum number of Shares prior to
March 31, 2011 in accordance with the provisions of the Plan or as required by the Conversion
Regulations and applicable law; (iii) the Agent terminates this relationship because there has been
a material adverse change in the financial condition or operations of the Primary Parties
considered as one enterprise since the date of the latest financial statements included in the
Prospectus; or (iv) immediately prior to commencement of the Offering, the Agent terminates this
relationship because in its opinion, which shall have been formed in good faith after reasonable
determination and consideration of all relevant factors, there has been a failure to satisfactorily
disclose all relevant information in the Prospectus or the existence of market conditions that
might render the sale of the Shares inadvisable, this Agreement shall terminate and no party to
this Agreement shall have any obligation to the other hereunder except as set forth in Sections 3,
4, 9, 11 and 12 hereof.
(b) If any of the conditions specified in Section 10 hereof shall not have been fulfilled when
and as required by this Agreement, or by the Closing Date, or waived in writing
33
by the Agent, this Agreement and all of the Agent’s obligations hereunder may be canceled by
the Agent by notifying the Bank of such cancellation in writing 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 3, 4, 9, 11 and 12 hereof.
(c) If the Agent elects to terminate this Agreement as provided in this Section, the Primary
Parties shall be notified by the Agent as provided in Section 15 hereof.
(d) If this Agreement is terminated in accordance with the provisions of this Agreement,
Stifel shall retain the conversion advisory and administrative services fee earned and paid to it
pursuant to Section 4 and the Primary Parties shall reimburse Stifel for its reasonable
out-of-pocket expenses pursuant to Section 9.
Section 15. Notices. All notices and other communications hereunder shall be in
writing and shall be deemed to have been duly given if mailed or transmitted by any standard form
of telecommunication. Notices to the Agent shall be directed to Xxxxxx, Xxxxxxxx & Company,
Incorporated, 000 Xxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxx
Xxxxxxx, Executive Vice President (with a copy to Xxxxxxxxxx Xxxxxxxx LLP, Suite 900 000
00xx Xxxxxx, XX, Xxxxxxxxxx, XX 00000-0000, Attention: Xxxxx X. Xxxxx, Esq.); notices to
the Primary Parties shall be directed to Atlantic Coast Financial Corporation, 00000 Xxxx Xxx
Xxxxxxx, Xxxxx 000, Xxxxxxxxxxxx, Xxxxxxx 00000, Attention: Xxxxxx X. Xxxxxxx, Xx., President and
Chief Executive Officer (with a copy to Xxxx Xxxxxx Xxxxxxxx & Xxxxxx, P.C., 0000 Xxxxxxxxx Xxxxxx,
X.X., Xxxxxxxxxx, XX 00000, Attention: Xxxxxxx X. Xxxxxxxxxx, Esq.).
Section 16. Parties. This Agreement shall inure to the benefit of and be binding upon
the Agent and the Primary Parties, and their respective successors. Nothing expressed or mentioned
in this Agreement is intended or shall be construed to give any person, firm or corporation, other
than the parties hereto and their respective successors and the controlling persons and officers
and directors referred to in Sections 11 and 12 and their heirs and legal representatives, any
legal or equitable right, remedy or claim under or in respect of this Agreement or any provisions
herein contained. It is understood and agreed that this Agreement is the exclusive agreement among
the parties, supersedes any prior Agreement among the parties and may not be varied except by a
writing signed by all parties, except for Paragraph 12 of the Letter Agreement (“Confidentiality”),
which is not hereby superseded.
Section 17. Partial Invalidity. In the event that any term, provision or covenant
herein or the application thereof to any circumstances 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 circumstance 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 18. Entire Agreement; Amendment. This Agreement represents the entire understanding of
the Primary Parties and the Agent with respect to the transactions contemplated hereby and
supersedes any and all other oral or written agreements heretofore made, except for paragraph 12 of
the Letter Agreement (“Confidentiality”) and the Data Processing Records Management Agent
Engagement Terms, dated May 28, 2010 by and among the Primary Parties
34
and Stifel, relating to the Stifel’s providing information agent services in connection with
the Conversion. No waiver, amendment or other modification of this Agreement shall be effective
unless in writing and signed by the parties hereto.
Section 19. Construction and Waiver of Jury Trial. This Agreement shall be construed
in accordance with the laws of the State of New York without giving effect to its conflicts of laws
principles. Any dispute hereunder shall be brought in a court in the State of New York. Each of the
Primary Parties and the Agent waives all right to trial by jury in any action, proceeding, claim or
counterclaim (whether based on contract, tort or otherwise) related to or arising out of this
Agreement.
(Remainder of page intentionally left blank.)
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If the foregoing is in accordance with your understanding of our agreement, please sign and
return to us a counterpart hereof, whereupon this instrument along with all counterparts will
become a binding agreement between you and us in accordance with its terms.
| Very truly yours, ATLANTIC COAST FINANCIAL CORPORATION |
||||
| By: | ||||
| Xxxxxx X. Xxxxxxx, Xx. | ||||
| President and Chief Executive Officer | ||||
| ATLANTIC COAST FEDERAL CORPORATION |
||||
| By: | ||||
| Xxxxxx X. Xxxxxxx, Xx. | ||||
| President and Chief Executive Officer | ||||
| ATLANTIC COAST FEDERAL, MHC |
||||
| By: | ||||
| Xxxxxx X. Xxxxxxx, Xx. | ||||
| President and Chief Executive Officer | ||||
| ATLANTIC COAST BANK |
||||
| By: | ||||
| Xxxxxx X. Xxxxxxx, Xx. | ||||
| President and Chief Executive Officer | ||||
The foregoing Agency Agreement is
hereby confirmed and accepted as
of the date first set forth above.
hereby confirmed and accepted as
of the date first set forth above.
XXXXXX, XXXXXXXX & COMPANY, INCORPORATED
By: |
||||
| Executive Vice President |
