FIRST FEDERAL OF OLATHE BANCORP, INC.
552,500 TO 747,500 SHARES
(AS MAY BE INCREASED TO 859,625 SHARES)
COMMON STOCK
($.01 PAR VALUE PER SHARE)
PURCHASE PRICE: $10.00 PER SHARE
SALES AGENCY AGREEMENT
Trident Securities, Inc.
0000 Xxx Xxxxx Xxxx, Xxxxx 000
Xxxxxxx, Xxxxx Xxxxxxxx 00000
Dear Sirs:
First Federal of Olathe Bancorp, Inc., a Kansas corporation
("Company"), and First Federal Savings and Loan Association of Olathe, a
federally chartered and insured savings and loan association ("Association," in
mutual or stock form as the context may require), hereby confirm, as of February
__, 2000, their respective agreements with Trident Securities, Inc. together
with its successors and assigns as contemplated in Section 13 hereof
(collectively, "Trident"), a broker-dealer registered with the Securities and
Exchange Commission ("Commission") and a member of the National Association of
Securities Dealers, Inc. ("NASD"), as follows:
1. Introduction. The Association intends to convert from a federally
chartered mutual savings and loan association to a federally chartered capital
stock savings and loan association as a wholly owned subsidiary of the Company
(together with the Offerings, as defined below, the issuance of shares of common
stock of the Association to the Company and the incorporation of the Company,
the "Conversion") pursuant to a plan of conversion adopted by the Association's
Board of Directors on October 13, 1999 [AND AMENDED ON ____________] ("Plan").
In accordance with the Plan, the Company is offering shares of its common stock,
$.01 par value per share ("Common Stock"), pursuant to nontransferable
subscription rights in a subscription offering ("Subscription Offering") to
certain depositors and borrowers of the Association and to the Association's
tax- qualified employee benefit plans (i.e., the Association's Employee Stock
Ownership Plan ("ESOP")). Any shares of the Common Stock not sold in the
Subscription Offering are being offered to the general public in a Community
Offering ("Community Offering"), with preference given to natural persons who
are permanent residents of Xxxxxxx County, Kansas ("Local Community") (the
Subscription and Community Offerings are sometimes referred to collectively as
the "Subscription and Community Offering"), subject to the right of the Company
and the Association, in their absolute discretion, to reject orders in the
Community Offering in whole or in part. It is anticipated that shares of Common
Stock not subscribed for in the Subscription and Community Offering (if any)
will be offered to certain members of the general public on a best efforts basis
by a selling
Trident Securities, Inc.
February __, 2000
Page 2
group of broker dealers to be formed and managed by Trident in a syndicated
offering ("Syndicated Community Offering") (the Subscription and Community
Offering and the Syndicated Community Offering are referred to collectively as
the "Offerings"). In the Subscription Offering (and the Community Offering and
the Syndicated Community Offering, if applicable), the Company is offering
between 552,500 and 747,500 shares of Common Stock ("Shares"), with the
possibility of offering up to 859,625 shares without a resolicitation of
subscribers, as contemplated by Part 563b of Title 12 of the Code of Federal
Regulations. Except for the ESOP, no person may purchase shares with an
aggregate purchase price of more than $100,000 and no person or entity, together
with associates of and persons acting in concert with such person or other
entity, may purchase more than $200,000 of Common Stock.
Trident has advised the Company and the Association that it will
utilize its best efforts to assist the Company with the sale of the Shares in
the Offerings. Prior to the execution of this Agreement, the Company has
delivered to Trident the prospectus dated February __, 1999 (as hereinafter
defined) and all supplements thereto, if any, to be used in the Offerings have
also been delivered to Trident (or if after the date of this Agreement, will be
promptly delivered to Trident). Such prospectus contains information with
respect to the Company, the Association and the Shares.
2. Representations and Warranties.
------------------------------
(a) The Company and the Association jointly and severally
represent and warrant to Trident that:
(i) The Company has filed with the Commission a
registration statement, including exhibits and an amendment or
amendments thereto, on Form SB-2 (No. 333-______), including a
prospectus relating to the Offerings, for the registration of
the Shares under the Securities Act of 1933, as amended
("Act"). Such registration statement has become effective
under the Act and no stop order has been issued with respect
thereto and no proceedings therefor have been initiated or, to
the Company's best knowledge, threatened by the Commission.
Except as the context may otherwise require, such registration
statement, as amended or supplemented, on file with the
Commission at the time the registration statement became
effective, including the prospectus, financial statements,
schedules, exhibits and all other documents filed as part
thereof, as amended and supplemented, is herein called the
"Registration Statement," and the prospectus, as amended or
supplemented, on file with the Commission at the time the
Registration Statement became effective is herein called the
"Prospectus," except that if the prospectus filed by the
Company with the Commission pursuant to Rule 424(b) of the
general rules and regulations of the Commission under the Act
("SEC Regulations") differs from the form of prospectus on
file at the time the Registration Statement became effective,
the term
Trident Securities, Inc.
February __, 2000
Page 3
"Prospectus" shall refer to the Rule 424(b) prospectus from
and after the time it is filed with the Commission and shall
include any amendments or supplements thereto from and after
their dates of effectiveness or use, respectively. If any
Shares remain unsubscribed following completion of the
Subscription Offering and, if any, the Community Offering, the
Company (i) will, if required by SEC Regulations, promptly
file with the Commission a post-effective amendment to such
Registration Statement relating to the results of the
Subscription Offering and, if any, the Community Offering, any
additional information with respect to the proposed plan of
distribution and any revised pricing information or (ii) if no
such post-effective amendment is required, will file with the
Commission a prospectus or prospectus supplement containing
information relating to the results of the Subscription and
the Community Offerings and pricing information pursuant to
Rule 424(c) of the SEC Regulations, in either case in a form
reasonably acceptable to the Company and Trident.
(ii) The Association has filed an Application for
Approval of Conversion on Form AC, including exhibits (as
amended or supplemented, the "Form AC" and together with the
Form H-(e)1-S referred to below, the "Conversion Application")
with the Office of Thrift Supervision ("Office") under the
Home Owners' Loan Act, as amended ("HOLA") and the enforceable
rules and regulations, including published policies and
actions, of the Office thereunder ("OTS Regulations"), which
has been approved by the Office; the Prospectus and the proxy
statement for the solicitation of proxies from members of the
Association for the special meeting to approve the Plan
("Proxy Statement") included as part of the Form AC have been
approved for use by the Office. No order has been issued by
the Office preventing or suspending the use of the Prospectus
or the Proxy Statement; and no action by or before the Office
revoking such approvals is pending or, to the Association's
best knowledge, threatened. The Company has filed with the
Office the Company's application on Form H-e(1)-S under the
savings and loan holding company provisions of the HOLA and
the OTS Regulations, which has been conditionally approved.
(iii) At the date of the Prospectus and at all times
subsequent thereto through and including the Closing Date (as
hereinafter defined) (i) the Registration Statement and the
Prospectus (as amended or supplemented, if amended or
supplemented) complied and will comply as to form in all
material respects with the Act and the SEC Regulations, (ii)
the Registration Statement (as amended or supplemented, if
amended or supplemented) did not contain an untrue statement
of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements
therein not misleading, and (iii) the Prospectus (as amended
or supplemented, if amended or supplemented) did not contain
any untrue statement of a material fact or omit to state any
material fact required to be stated
Trident Securities, Inc.
February __, 2000
Page 4
therein or necessary to make the statements therein, in light
of the circumstances under which they were made, not
misleading. Representations or warranties in this subsection
shall not apply to statements or omissions made in reliance
upon and in conformity with written information about Trident
furnished to the Company or the Association by or on behalf of
Trident expressly for use in the Registration Statement or
Prospectus.
(iv) The Company is duly incorporated as a Kansas
corporation and the Association is duly organized as a mutual
savings and loan association under the laws of the United
States, and each of them is validly existing and in good
standing under the laws of the jurisdiction of its
organization with full power and authority to own its property
and conduct its business as described in the Prospectus; the
Association is a member of the Federal Home Loan Bank of
Topeka; and the deposit accounts of the Association are
insured by the Savings Association Insurance Fund ("SAIF")
administered by the Federal Deposit Insurance Corporation
("FDIC") up to the applicable limits. Neither the Company nor
the Association is required to be qualified to do business as
a foreign corporation in any jurisdiction where non-
qualification would have a material adverse effect on the
Company and the Association, taken as a whole. The Association
does not own equity securities of or an equity interest in any
business enterprise, except as described in the Prospectus.
Upon amendment of the Association's charter and bylaws as
provided in the OTS Regulations and completion of the sale by
the Company of the Shares as contemplated by the Prospectus
and the Plan, (i) the Association will convert to a federally
chartered capital stock savings and loan association with full
power and authority to own its property and conduct its
business as described in the Prospectus, (ii) all of the
authorized and outstanding capital stock of the Association
will be owned of record and beneficially by the Company, and
(iii) the Company will have no direct subsidiaries other than
the Association.
(v) The Association has good and marketable title to
all assets material to its business and to those assets
described in the Prospectus as owned by it, free and clear of
all liens, charges, encumbrances or restrictions, except as
described in the Prospectus and except as would not in the
aggregate have a material adverse effect on the Association;
and all of the leases and subleases material to the operations
or financial condition of the Association, under which it
holds properties, including those described in the Prospectus,
are in full force and effect as described therein.
(vi) The Association has obtained all licenses,
permits and other governmental authorizations currently
required for the conduct of its business, all such licenses,
permits and other governmental authorizations are in full
force and effect and the Association is in all material
respects complying therewith, except
Trident Securities, Inc.
February __, 2000
Page 5
where the failure to hold or comply with such licenses,
permits or governmental authorizations would not have a
material adverse effect on the Company and the Association,
taken as a whole.
(vii) The execution and delivery of this Agreement
and the consummation of the transactions contemplated hereby
have been duly and validly authorized by all necessary
corporate action on the part of each of the Company and the
Association, and this Agreement has been validly executed and
delivered by, and is a valid and binding obligation of, each
of the Company and the Association, enforceable in accordance
with its terms (except as the enforceability thereof may be
limited by bankruptcy, insolvency, moratorium, reorganization
or similar laws relating to or affecting the enforcement of
creditors' rights generally or the rights of creditors of
savings and loan holding companies the accounts of whose
subsidiary are insured by the FDIC or by general equity
principles, regardless of whether such enforceability is
considered in a proceeding in equity or at law, and except to
the extent that the provisions of Sections 8 and 9 hereof may
be unenforceable as against public policy or pursuant to
Section 23A of the Federal Reserve Act, 12 U.S.C. Section 371c
("Section 23A")).
(viii) There is no litigation or governmental
proceeding pending or, to the best knowledge of the Company or
the Association, threatened against or involving the Company,
the Association, or any of their respective assets which
individually or in the aggregate would reasonably be expected
to have a material adverse effect on the condition (financial
or otherwise), results of operations assets or properties of
the Company and the Association, taken as a whole.
(ix) The Company and the Association have received
the opinion of Xxxx Xxxxxx Xxxxxx Xxxxxxxx & Xxxxxx, P.C.,
counsel to the Company and the Association, with respect to
federal income tax consequences of the Conversion, to the
effect that the Conversion will constitute a tax-free
reorganization under the Internal Revenue Code of 1986, as
amended; the Company and the Association have received the
opinion of Xxxxxx, Xxxxx & Xxxxxx, L.L.C. with respect to the
Kansas tax consequences of the Conversion, to the effect that
the Conversion will not be a taxable transaction for the
Association or the Company under the laws of Kansas; and the
facts and representations upon which such entities relied upon
in rendering their respective opinion are accurate and
complete.
(x) Each of the Company and the Association has all
such corporate power, authority, authorizations, approvals and
orders as may be required to enter into this Agreement and to
carry out the provisions and conditions hereof, subject to the
limitations set forth herein and subject to the satisfaction
of certain conditions
Trident Securities, Inc.
February __, 2000
Page 6
imposed by the Office in connection with its approvals of the
Form AC and the Application H-(e)1-S, and except as may be
required under the "blue sky" laws of various jurisdictions,
and in the case of the Company, as of the Closing Date, will
have such approvals and orders to issue and sell the Shares to
be sold by the Company as provided herein, and in the case of
the Association, as of the Closing Date, will have such
approvals and orders to issue and sell the shares of its
common stock to be sold to the Company as provided in the
Plan, subject to the issuance of an amended charter in the
form required for federally chartered capital stock savings
and loan associations ("Stock Charter"), the form of which
Stock Charter has been filed with the Form AC and approved by
the Office.
(xi) Neither the Company nor the Association is in
violation of any rule or regulation of the Office or the FDIC
that could reasonably be expected to result in any enforcement
action against the Company, the Association, or their officers
or directors that would have a material adverse effect on the
condition (financial or otherwise), results of operations,
businesses, assets or properties of the Company and the
Association, taken as a whole.
(xii) The financial statements and the related notes
or schedules which are included in the Registration Statement
and are part of the Prospectus fairly present the financial
condition, income, retained earnings and cash flows of the
Association at the respective dates thereof and for the
respective periods covered thereby and comply as to form in
all material respects with the applicable accounting
requirements of the SEC Regulations and the applicable
accounting regulations of the Office. Such financial
statements have been prepared in accordance with generally
accepted accounting principles consistently applied throughout
the periods involved, except as set forth therein, and such
financial statements are in all material respects consistent
with financial statements and other reports filed by the
Association with supervisory and regulatory authorities except
as such generally accepted accounting principles may otherwise
require. The tables in the Prospectus accurately present the
information purported to be shown thereby at the respective
dates thereof and for the respective periods therein.
(xiii) There has been no material change in the
financial condition, results of operations or business,
including assets and properties, of the Company and the
Association, taken as a whole, since the latest date as of
which such condition is set forth in the Prospectus, except as
set forth therein; and the capitalization, assets, properties
and business of each of the Company and the Association
conform to the descriptions thereof contained in the
Prospectus. Neither the Company nor the Association has any
material liabilities of any kind, contingent or otherwise,
except as set forth in the Prospectus.
Trident Securities, Inc.
February __, 2000
Page 7
(xiv) There has been no breach or default (or the
occurrence of any event which, with notice or lapse of time or
both, would constitute a default) under, or creation or
imposition of any lien, charge or other encumbrance upon any
of the properties or assets of the Company or the Association
pursuant to any of the terms, provisions or conditions of, any
agreement, contract, indenture, bond, debenture, note,
instrument or obligation to which the Company or the
Association is a party or by which any of them or any of their
respective assets or properties may be bound or is subject, or
violation of any governmental license or permit or any
enforceable published law, administrative regulation or order
or court order, writ, injunction or decree, which breach,
default, encumbrance or violation would have a material
adverse effect on the condition (financial or otherwise),
results of operations, businesses, assets or properties of the
Company and the Association, taken as a whole; all agreements
which are material to the financial condition, results of
operations or business, assets or properties of the Company or
the Association are in full force and effect, and no party to
any such agreement has instituted or, to the best knowledge of
the Company or the Association, threatened any action or
proceeding wherein the Company or the Association would be
alleged to be in default thereunder.
(xv) Neither the Company nor the Association is in
violation of its respective articles of incorporation, charter
or bylaws. The execution and delivery of this Agreement and
the consummation of the transactions contemplated hereby by
the Company and the Association do not conflict with or result
in a breach of the respective articles of incorporation,
charter or bylaws of the Company or the Association (in either
mutual or stock form) or constitute a material breach of or
default (or an event which, with notice or lapse of time or
both, would constitute a default) under, give rise to any
right of termination, cancellation or acceleration contained
in, or result in the creation or imposition of any lien,
charge or other encumbrance upon any of the properties or
assets of the Company or the Association pursuant to any of
the terms, provisions or conditions of, any material
agreement, contract, indenture, bond, debenture, note,
instrument or obligation to which the Company or the
Association is a party or violate any governmental license or
permit or any enforceable published law, administrative
regulation or order or court order, writ, injunction or decree
(subject to the satisfaction of certain conditions imposed by
the Office in connection with its approval of the Conversion
Application), which breach, default, encumbrance or violation
would have a material adverse effect on the Company and the
Association, taken as a whole.
Trident Securities, Inc.
February __, 2000
Page 8
(xvi) Subsequent to the respective dates as of which
information is given in the Registration Statement and
Prospectus and prior to the Closing Date, except as otherwise
may be indicated or contemplated therein, neither the Company
nor the Association has issued any securities which will
remain issued and outstanding at the Closing Date or incurred
any liability or obligation, direct or contingent, or borrowed
money, except liabilities, obligations or borrowings in the
ordinary course of business, or entered into any other
transaction not in the ordinary course of business and
consistent with prior practices, which is material in light of
the business of the Company and the Association, taken as a
whole.
(xvii) Upon consummation of the Conversion, the
authorized, issued and outstanding equity capital of the
Company shall be within the range set forth in the Prospectus
under the caption "Capitalization," and no capital stock of
the Company shall be outstanding immediately prior to the
Closing Date; the issuance and the sale of the Shares have
been duly authorized by all necessary corporate action of the
Company and the Association and approved by the Office and,
when issued and paid for in accordance with the terms of the
Plan, shall be validly issued, fully paid and nonassessable
and shall conform to the description thereof contained in the
Prospectus; the issuance of the Shares is not subject to
preemptive rights, except as set forth in the Prospectus; and
good title to the Shares will be transferred by the Company to
the purchasers thereof upon issuance thereof against payment
therefor, free and clear of all claims, encumbrances, security
interests and liens against the Company whatsoever. The
certificates representing the Shares will conform in all
material respects with the requirements of applicable laws and
regulations. The issuance and sale of the capital stock of the
Association to the Company has been duly authorized by all
necessary corporate action of the Association and the Company
and has been approved by the Office (subject to the
satisfaction of various conditions imposed by the Office in
connection with its approval of the Conversion Application),
and such capital stock, when issued in accordance with the
terms of the Plan, will be fully paid and nonassessable and
will conform to the description thereof contained in the
Prospectus.
(xviii) No approval of any regulatory or supervisory
or other public authority is required of the Company or the
Association in connection with the execution and delivery of
this Agreement or the issuance of the Shares, except for the
declaration of effectiveness of any required post-effective
amendment by the Commission and approval thereof by the Office
and approval of the Company's Application H-(e)1-S, the
issuance of the Stock Charter by the Office and as may be
required under the "blue sky" laws of various jurisdictions.
Trident Securities, Inc.
February __, 2000
Page 9
(xix) All contracts and other documents required to
be filed as exhibits to the Registration Statement or the
Conversion Application have been filed with the Commission or
the Office, as the case may be.
(xx) Xxxxxx, Xxxxx & Xxxxxx, L.L.C., which has
audited the financial statements of the Association at
December 31, 1998 and 1997 and for the years ended December
31, 1998 and 1997 included in the Prospectus, is an
independent public accountant with respect to the Company and
the Association within the meaning of the Code of Professional
Ethics of the American Institute of Certified Public
Accountants and Title 12 of the Code of Federal Regulations,
Section 571.2(c)(3).
(xxi) For the past five years, or in the case of the
Company, such lesser period corresponding to the Company's
existence, the Company and the Association have timely filed
all required federal, state and local tax returns, and no
deficiency has been asserted with respect to such returns by
any taxing authorities, and the Company and the Association
have paid all taxes that have become due and, to the best of
their knowledge, have made adequate reserves for known future
tax liabilities, except where any failure to make such
filings, payments and reserves, or the assertion of such a
deficiency, would not have a material adverse effect on the
Company and the Association, taken as a whole.
(xxii) All of the loans represented as assets of the
Association on the most recent statement of financial
condition of the Association included in the Prospectus meet
or are exempt from all requirements of federal, state or local
law pertaining to lending, including without limitation truth
in lending (including the requirements of Regulation Z and 12
C.F.R. Part 226 and Section 563.99), real estate settlement
procedures, consumer credit protection, equal credit
opportunity and all disclosure laws applicable to such loans,
except for violations which, if asserted, would not have a
material adverse effect on the Company and the Association,
taken as a whole.
(xxiii) To the best knowledge of the Company and the
Association, the records of account holders, depositors and
other members of the Association delivered to Trident by the
Association or its agent for use during the Conversion are
reliable and accurate.
(xxiv) Neither the Company nor the Association nor,
to the best knowledge of the Company and the Association, the
employees of the Company or the Association, has made any
payment of funds of the Company or the Association prohibited
by law, and no funds of the Company or the Association have
been set aside to be used for any payment prohibited by law.
Trident Securities, Inc.
February __, 2000
Page 10
(xxv) To the best knowledge of the Company and the
Association, the Company and the Association are in compliance
with all laws, rules and regulations relating to the
discharge, storage, handling and disposal of hazardous or
toxic substances, pollutants or contaminants and neither the
Company nor the Association believes that the Company and
Association is subject to liability under the Comprehensive
Environmental Response, Compensation and Liability Act of
1980, as amended, or any similar law, except for violations
which, if asserted, would not have a material adverse effect
on the Company and the Association, taken as a whole. There
are no actions, suits, regulatory investigations or other
proceedings pending or, to the best knowledge of the Company
or the Association, threatened against the Company or the
Association relating to the discharge, storage, handling and
disposal of hazardous or toxic substances, pollutants or
contaminants. To the best knowledge of the Company and the
Association, no disposal, release or discharge of hazardous or
toxic substances, pollutants or contaminants, including
petroleum and gas products, as any of such terms may be
defined under federal, state or local law, has been caused by
the Company or the Association or, to the best knowledge of
the Company or the Association, has occurred on, in or at any
of the facilities or properties of the Company or the
Association, except such disposal, release or discharge which
would not have a material adverse effect on the Company and
the Association, taken as a whole.
(b) Trident represents and warrants to the Company and the
Association that:
(i) Trident is registered as a broker-dealer with the
Commission and a member of the NASD, and is in good standing
with the Commission and the NASD.
(ii) Trident is validly existing as a corporation in
good standing under the laws of its jurisdiction of
incorporation, with full corporate power and authority to
provide the services to be furnished to the Company and the
Association hereunder.
(iii) The execution and delivery of this Agreement
and the consummation of the transactions contemplated hereby
have been duly and validly authorized by all necessary action
on the part of Trident, and this Agreement is a legal, valid
and binding obligation of Trident, enforceable in accordance
with its terms (except as the enforceability thereof may be
limited by bankruptcy, insolvency, moratorium, reorganization
or similar laws relating to or affecting the enforcement of
creditors' rights generally or the rights of creditors of
registered broker-dealers accounts of whom may be protected by
the Securities Investor Protection Corporation or by general
equity principles, regardless of whether such enforceability
is considered in a proceeding in equity or at law, and except
to the extent that the provisions of Sections 8 and 9 hereof
may be unenforceable as against public policy).
Trident Securities, Inc.
February __, 2000
Page 11
(iv) Each of Trident, and to Trident's best
knowledge, its employees, agents and representatives who shall
perform any of the services required hereunder to be performed
by Trident shall be duly authorized and shall have all
licenses, approvals and permits necessary to perform such
services, and Trident is a registered selling agent in the
jurisdictions listed in Exhibit A hereto and will remain
registered in such jurisdictions in which the Company is
relying on such registration for the sale of the Shares, until
the Conversion is consummated or terminated.
(v) The execution and delivery of this Agreement by
Trident, the fulfillment of the terms set forth herein and the
consummation of the transactions contemplated hereby shall not
violate or conflict with the corporate charter or bylaws of
Trident or violate, conflict with or constitute a breach of,
or default (or an event which, with notice or lapse of time,
or both, would constitute a default) under, any material
agreement, indenture or other instrument by which Trident is
bound or under any governmental license or permit or any law,
administrative regulation, authorization, approval or order or
court decree, injunction or order, except for such violations,
conflicts, breaches or defaults that would not have a material
adverse effect on Trident.
(vi) All funds received by Trident to purchase the
Common Stock will be handled in accordance with Rule 15c2-4
under the Securities Exchange Act of 1934, as amended
("Exchange Act").
(vii) There is not now pending or, to Xxxxxxx's best
knowledge, threatened against Trident any action or proceeding
before the Commission, the NASD, any state securities
commission or any state or federal court concerning Trident's
activities as a broker-dealer.
3. Employment of Trident; Sale and Delivery of the Shares. On the basis
of the representations and warranties herein contained, but subject to the terms
and conditions herein set forth, the Company and the Association hereby employ
Trident as their agent to utilize its best efforts in assisting the Company with
the sale of the Shares by the Company in the Offerings. The employment of
Trident hereunder shall terminate (a) forty-five (45) days after the Offerings
close, unless the Company and the Association, with the approval of the Office,
are permitted to extend such period of time, or (b) upon consummation of the
Conversion, whichever date shall first occur.
If the Company is unable to sell a minimum of 552,500 Shares of Common
Stock (or such lesser amount as the Office may permit) within the period herein
provided, this Agreement shall terminate, and the Company and the Association
shall refund promptly to any person who has subscribed for any of the Shares,
the full amount which it may have received from them, together with interest as
provided in the Prospectus, and no party to this Agreement shall have any
obligation
Trident Securities, Inc.
February __, 2000
Page 12
to the other party hereunder, except as set forth in Sections 6, 8(a) and 9
hereof. Appropriate arrangements for placing the funds received from
subscriptions for Shares in a special interest- bearing account with the
Association until all Shares are sold and paid for were made prior to the
commencement of the Subscription and Community Offering, with provision for
prompt refund to the purchasers as set forth above, or for delivery to the
Company if all Shares are sold.
If all conditions precedent to the consummation of the Conversion are
satisfied, including the sale of all Shares required by the Plan to be sold, the
Company agrees to issue or have issued such Shares and to release for delivery
certificates to subscribers thereof for such Shares on the Closing Date against
payment to the Company by any means authorized pursuant to the Prospectus, at
the principal office of the Company or at such other place as shall be agreed
upon between the parties hereto. The date upon which Xxxxxxx is paid the
compensation due hereunder is herein called the "Closing Date."
Trident agrees either (a) upon receipt of an executed order form of a
subscriber to forward the aggregate offering price of the Common Stock ordered
on or before twelve noon on the next business day following receipt or execution
of an order form by Trident to the Association for deposit in a segregated
account or (b) to solicit indications of interest in which event (i) Trident
will subsequently contact any potential subscriber indicating interest to
confirm the interest and give instructions to execute and return an order form
or to receive authorization to execute the order form on the subscriber's
behalf, (ii) Trident will mail acknowledgments of receipt of orders to each
subscriber confirming interest on the business day following such confirmation,
(iii) Trident will debit accounts of such subscribers on the third business day
("debit date") following receipt of the confirmation referred to in (i), and
(iv) Trident will forward completed order forms together with such funds to the
Association on or before twelve noon on the next business day following the
debit date for deposit in a segregated account. Trident acknowledges that if the
procedure in (b) is adopted, subscribers' funds are not required to be in their
accounts until the debit date.
In addition to the expenses specified in Section 6 hereof, Trident
shall receive the following compensation for its services hereunder and
reimbursement of expenses:
(a) (i) a management fee of ninety-seven thousand five
hundred dollars ($97,500); and (ii) if applicable,
for any stock sold in the Syndicated Community
Offering by other NASD member firms under selected
dealer's agreements, the commission shall not exceed
a fee to be agreed upon jointly by Trident and the
Association to reflect market requirements at the
time of a stock allocation in the Syndicated
Community Offering. All such fees are to be payable
in same-day funds to Trident on the Closing Date.
(b) Trident shall be reimbursed for reasonable allocable
expenses, including but not limited to travel,
communications, legal fees and expenses and postage,
Trident Securities, Inc.
February __, 2000
Page 13
incurred by it whether or not the Offerings are
successfully completed; provided, however, that
neither the Company nor the Association shall pay or
reimburse Trident for any of the foregoing expenses
accrued after Trident shall have notified the Company
or the Association of its election to terminate this
Agreement pursuant to Section 11 hereof or after such
time as the Company or the Association shall have
given notice in accordance with Section 12 hereof
that Trident is in breach of this Agreement.
Xxxxxxx's reimbursable out of pocket expenses will
not exceed $37,500, including legal fees. Full
payment to defray Trident's reimbursable expenses
shall be made in next-day funds on the Closing Date
or, if the Conversion is not completed and is
terminated for any reason, within ten (10) business
days of receipt by the Company of a written request
from Trident for reimbursement of its expenses.
Trident acknowledges receipt of $5,000 advance
payment from the Association which shall be credited
against the total reimbursement due Trident
hereunder.
(c) Notwithstanding the limitations on reimbursement of
Trident for allocable expenses provided in the
immediately preceding paragraph (b), in the event
that a resolicitation or other event causes the
Offerings to be extended beyond their original
expiration date, Trident shall be reimbursed for its
allocable expenses incurred during such extended
period, provided that the allowance for allocable
expenses provided for in the immediately preceding
paragraph (b) above have been exhausted and subject
to the following: such reimbursement shall be in
amount equal to the product obtained by dividing
$5,000 (original reimbursable out-of-pocket expenses,
excluding legal fees) by the total number of days of
the unextended Subscription Offering (calculated from
the date of the Prospectus to the intended close of
the Subscription Offering as stated in the
Prospectus) and multiplying such product by the
number of days of the extension (that number of days
from the date of the supplemental prospectus used in
the extended Subscription Offering to the closing of
the extension of the Subscription Offering described
in such supplemental prospectus).
The Company shall pay any stock issue and transfer taxes which may be
payable with respect to the sale of the Shares. The Company and the Association
shall also pay all expenses of the Conversion incurred by them or on their prior
approval including but not limited to their attorneys' fees, NASD filing fees,
and attorneys' fees relating to any required state securities laws research and
filings, telephone charges, air freight, rental equipment, supplies, transfer
agent charges, fees relating to auditing and accounting and costs of printing
all documents necessary in connection with the Conversion.
Trident Securities, Inc.
February __, 2000
Page 14
4. Offering. Subject to the provisions of Section 7 hereof, Trident is
assisting the Company on a best efforts basis in offering a minimum of 552,500
and a maximum of 747,500 Shares, with the possibility of offering up to 859,625
Shares (except as the Office may permit to be decreased or increased) in the
Subscription and Community Offerings, and if necessary, the Syndicated Community
Offering. The Shares are to be offered to the public at the price set forth on
the cover page of the Prospectus and the first page of this Agreement.
5. Further Agreements. The Company and the Association (including the
Subsidiary in each instance where the Association is referenced, unless clearly
inapplicable) jointly and severally covenant and agree that:
(a) The Company shall deliver to Trident, from time to time,
such number of copies of the Prospectus as Trident reasonably may
request. The Company authorizes Trident to use the Prospectus in any
lawful manner in connection with the offer and sale of the Shares.
(b) The Company will notify Trident or its counsel immediately
upon discovery, and confirm the notice in writing, (i) when any
post-effective amendment to the Registration Statement becomes
effective or any supplement to the Prospectus has been filed, (ii) of
the issuance by the Commission of any stop order relating to the
Registration Statement or of the initiation or the threat of any
proceedings for that purpose, (iii) of the receipt of any notice with
respect to the suspension of the qualification of the Shares for
offering or sale in any jurisdiction, and (iv) of the receipt of any
comments from the staff of the Commission relating to the Registration
Statement. If the Commission enters a stop order relating to the
Registration Statement at any time, the Company will make every
reasonable effort to obtain the lifting of such order at the earliest
possible time.
(c) During the time when the Prospectus is required to be
delivered under the Act, the Company will comply with all requirements
imposed upon it by the Act, as now in effect and hereafter amended, and
by the SEC Regulations and the OTS Regulations, as from time to time in
force, so far as necessary to permit the continuance of offers and
sales of or dealings in the Shares in accordance with the provisions
hereof and the Prospectus. If, during the period when the Prospectus is
required to be delivered in connection with the offer and sale of the
Shares, any event relating to or affecting the Company or the
Association shall occur as a result of which it is necessary, in the
opinion of counsel for Trident, with concurrence of counsel of the
Company, to amend or supplement the Prospectus in order to make the
Prospectus not false or misleading as to a material fact in light of
the circumstances existing at the time it is delivered to a purchaser
of the Shares, the Company shall prepare and furnish to Trident
promptly a reasonable number of copies of an amendment or amendments or
of a supplement or supplements to the Prospectus (in form and substance
satisfactory to counsel for Trident) which shall amend or supplement
the Prospectus so that,
Trident Securities, Inc.
February __, 2000
Page 15
as amended or supplemented, the Prospectus shall not contain an untrue
statement of a material fact or omit to state a material fact necessary
in order to make the statements therein, in light of the circumstances
existing at the time the Prospectus is delivered to a purchaser of the
Shares, not misleading. The Company will not file or use any amendment
or supplement to the Registration Statement or the Prospectus of which
Trident has not first been furnished a copy or to which Trident shall
reasonably object after having been furnished such copy. For the
purposes of this subsection the Company and the Association shall
furnish such information with respect to themselves as Trident from
time to time may reasonably request.
(d) The Company has taken or will take all necessary action as
may be required to qualify or register the Shares for offer and sale by
the Company under the securities or blue sky laws of such jurisdictions
as Trident and either the Company or its counsel may agree upon;
provided, however, that the Company shall not be obligated to qualify
as a foreign corporation to do business under the laws of any such
jurisdiction. In each jurisdiction where such qualification or
registration shall be effected, the Company, unless Trident agrees that
such action is not necessary or advisable in connection with the
distribution of the Shares, shall file and make such statements or
reports as are, or reasonably may be, required by the laws of such
jurisdiction.
(e) Appropriate entries will be made in the financial records
of the Association sufficient to establish a liquidation account for
the benefit of Eligible Account Holders and Supplemental Eligible
Account Holders in accordance with the requirements of the Office.
(f) The Company will file a registration statement for the
Common Stock under Section 12(g) of the Exchange Act prior to
completion of the Conversion pursuant to the Plan and shall request
that such registration statement be effective upon completion of the
Conversion. The Company shall maintain the effectiveness of such
registration for a minimum period of three years or for such shorter
period as may be required by applicable law.
(g) The Company will make generally available to its security
holders as soon as practicable, but not later than 90 days after the
close of the period covered thereby, an earnings statement (in form
complying with the provisions of Rule 158 of the SEC Regulations)
covering a twelve-month period beginning not later than the first day
of the Company's fiscal quarter next following the effective date (as
defined in said Rule 158) of the Registration Statement.
(h) For a period of three (3) years from the date of this
Agreement (unless the Common Stock shall have been deregistered under
the Exchange Act), the Company will furnish to Trident, as soon as
publicly available after the end of each fiscal year, a copy of
Trident Securities, Inc.
February __, 2000
Page 16
its annual report to shareholders for such year; and the Company will
furnish to Trident (i) as soon as publicly available, a copy of each
report or definitive proxy statement of the Company filed with the
Commission under the Exchange Act or mailed to shareholders, and (ii)
from time to time, such other public information concerning the Company
as Trident may reasonably request.
(i) The Company shall use the net proceeds from the sale of
the Shares consistently with the manner set forth in the Prospectus.
(j) The Company shall not deliver the Shares until each and
every condition set forth in Section 7 hereof has been satisfied,
unless such condition is waived in writing by Trident.
(k) The Company shall advise Trident, if necessary, as to the
allocation of deposits, in the case of Eligible Account Holders and
Supplemental Eligible Account Holders, and votes, in the case of Other
Members (as defined in the Plan), and of the Shares in the event of an
oversubscription and shall provide Trident final instructions as to the
allocation of the Shares ("Allocation Instructions") and such
information shall be accurate and reliable. Trident shall be entitled
to rely on such instructions and shall have no liability in respect of
its reliance thereon, including without limitation, no liability for or
related to any denial or grant of a subscription in whole or in part,
except for such liability contemplated under Section 8(b) of this
Agreement.
(l) The Company and the Association will take such actions and
furnish such information as are reasonably requested by Trident in
order for Trident to ensure compliance with the NASD's "Interpretation
Relating to Free-Riding and Withholding."
(m) At the Closing Date, the Company and the Association will
have completed the conditions precedent to, and shall have conducted
the Conversion in all material respects in accordance with, the Plan,
the OTS Regulations and all other applicable laws, regulations,
published decisions and orders, including all terms, conditions,
requirements and provisions precedent to the Conversion imposed by the
Office, or appropriate waivers shall have been obtained.
6. Payment of Expenses. Whether or not the Conversion is consummated,
the Company and the Association shall pay or reimburse Trident for (a) all
filing fees paid or incurred by Trident in connection with all filings with the
NASD with respect to the Subscription and Community Offerings and, (b) in
addition, if the Company is unable to sell a minimum of 552,500 Shares of Common
Stock or such lesser amount as the Office may permit or the Conversion is
otherwise terminated, the Company and the Association shall reimburse Trident
for allocable expenses incurred by Trident relating to the offering of the
Shares as provided in Section 3 hereof; provided, however,
Trident Securities, Inc.
February __, 2000
Page 17
that neither the Company nor the Association shall pay or reimburse Trident for
any of the foregoing expenses accrued after Trident shall have notified the
Company or the Association of its election to terminate this Agreement pursuant
to Section 11 hereof or after such time as the Company or the Association shall
have given notice in accordance with Section 12 hereof that Trident is in breach
of this Agreement.
7. Conditions of Trident's Obligations. Except as may be waived by
Trident, the obligations of Trident as provided herein shall be subject to the
accuracy of the representations and warranties contained in Section 2 hereof as
of the date hereof and as of the Closing Date, to the performance by the Company
and the Association of their obligations hereunder and to the following
conditions:
(a) At the Closing Date, Trident shall receive the favorable
opinion of Xxxx Xxxxxx Xxxxxx Xxxxxxxx & Xxxxxx, P.C., counsel for the
Company and the Association, dated the Closing Date, addressed to
Trident, in form and substance satisfactory to Trident and to the
effect that:
(i) The Company is a corporation in existence under
the laws of the State of Kansas, and the Association is a
mutual savings and loan association in existence under the
laws of the Untied States, each having the corporate power to
execute, deliver and perform its respective obligations under
this Agreement and to carry on its business as now conducted
and as described in the Prospectus;
(ii) The Association is a member of the Federal Home
Loan Bank of Topeka, and the deposit accounts of the
Association are insured by the SAIF up to the applicable legal
limits;
(iii) The activities of the Association as described
in the Prospectus are permitted under federal and Kansas law;
(iv) The Plan complies with, and, to the best
knowledge of such counsel, the Conversion has been effected in
all material respects in accordance with, the HOLA and the OTS
Regulations; to the best knowledge of such counsel, all of the
terms, conditions, requirements and provisions with respect to
the Plan and the Conversion imposed by the Office, except with
respect to the filing or submission of certain required
post-Conversion reports by the Company or the Association,
have been complied with by the Company and the Association in
all material respects; and, to the best knowledge of such
counsel, no person has sought to obtain regulatory or judicial
review of the final action of the Office in approving the
Plan;
Trident Securities, Inc.
February __, 2000
Page 18
(v) The Company has authorized capital stock as set
forth in the Registration Statement and the Prospectus;
(vi) The Company has authorized the issuance and sale
of the Shares by all necessary corporate action; the Shares,
upon receipt of payment and issuance in accordance with the
terms of the Plan, will be validly issued, fully paid,
nonassessable and, except as disclosed in the Prospectus, free
of preemptive rights; and purchasers of the Shares from the
Company, upon issuance thereof against payment therefor, will
acquire such Shares free and clear of all claims,
encumbrances, security interests and liens created by the
Company;
(vii) The form of certificate used to evidence the
Shares is in proper form and complies in all material respects
with the applicable requirements of Kansas law and the
regulations of the Office;
(viii) The Association has authorized the sale of its
capital stock to the Company by all necessary corporate
action, which sale has been approved by the Office, and such
capital stock, upon receipt of payment and issuance in
accordance with the terms of the Plan and the Prospectus, will
be validly issued, fully paid and nonassessable and owned of
record and beneficially by the Company;
(ix) Subject to the satisfaction of the conditions to
the Office's approval of the Conversion Application and the
issuance by the Office of the Association's Stock Charter, no
consent, approval, authorization or other action by, or filing
or registration with, any governmental agency is required to
be obtained or made by the Company or the Association for the
execution and delivery of this Agreement, the issuance of the
Shares and the consummation of the Conversion;
(x) The Company and the Association have authorized
the execution, delivery and performance of this Agreement by
all necessary corporate action;
(xi) The Plan has been duly adopted by the requisite
vote of the Board of Directors of the Association and by the
requisite vote of the Board of Directors of the Company; and
the Plan has been approved by the requisite vote of the
eligible voting members of the Association at a duly called
meeting;
(xii) The statements in the Prospectus under the
captions "Dividend Policy," "Regulation," "Taxation,"
"Description of Capital Stock," and "Restrictions on
Acquisitions of Stock and Related Takeover Defensive
Provisions" insofar as they are, or refer to, statements of
law or legal conclusions (excluding financial data included
therein or omitted therefrom, as to which an opinion need not
be expressed),
Trident Securities, Inc.
February __, 2000
Page 19
have been prepared or reviewed by such counsel and are
accurate in all material respects;
(xiii) The Conversion Application, the Registration
Statement, the Prospectus and the Proxy Statement, in each
case as amended or supplemented, comply as to form in all
material respects with the requirements of the Act, the SEC
Regulations, the HOLA and the OTS Regulations, as the case may
be (except as to information with respect to Trident included
therein and financial statements, notes to financial
statements, financial tables and other financial and
statistical data, including the appraisal, included therein or
omitted therefrom, as to which no opinion need be expressed);
to the best of such counsel's knowledge, all documents and
exhibits required to be filed with the Conversion Application
and the Registration Statement have been so filed and the
descriptions in the Conversion Application and the
Registration Statement of such documents and exhibits are
accurate in all material respects;
(xiv) The Form AC has been approved by the Office,
and the Prospectus and the Proxy Statement have been
authorized for use by the Office; the Registration Statement
and any post-effective amendment thereto has been declared
effective by the Commission; no proceedings are pending by or
before the Commission or the Office seeking to revoke or
rescind the orders declaring the Registration Statement
effective or approving the Conversion Application or, to the
best of such counsel's knowledge, are contemplated or
threatened (provided that for this purpose such counsel need
not regard any litigation or governmental procedure to be
"threatened" unless the potential litigant or government
authority has manifested to the management of the Company or
the Association, or to such counsel, a present intention to
initiate such litigation or proceeding);
(xv) The execution and delivery of this Agreement,
and the consummation of the Conversion by the Company and the
Association, do not violate any provision of the Articles of
Incorporation, Charter or Bylaws of the Company or the
Association, do not violate or constitute a breach of or
default under any contract, agreement or instrument described
in the Prospectus, and, to the best knowledge of such counsel,
do not violate any applicable law, regulation or any judgment
or order of any government, governmental instrumentality or
court that is binding on the Company or the Association or any
of its assets, properties or operations;
(xvi) To the best knowledge of such counsel, the
Company and the Association have obtained all licenses,
permits and other governmental authorizations currently
required for the conduct of its respective business as such
business is described in the Prospectus, all such licenses,
permits and other
Trident Securities, Inc.
February __, 2000
Page 20
governmental authorizations are in full force and effect and
the Company and the Association are in all material respects
complying therewith, except where the failure to hold such
licenses, permits or governmental authorizations or the
failure to so comply would not have a material adverse effect
on the Company and the Association, taken as a whole;
(xvii) To the best of such counsel's knowledge, there
is no action, suit proceedings, inquiry or investigation
before or by any court or governmental agency or body, now
pending or threatened, against either the Company, the
Association or the Subsidiary;
(xviii) This agreement has been duly executed and
delivered by the Company and the Association and is
enforceable against the Association and the Company;
(xix) To the best of such counsel's knowledge, the
execution and delivery of this Agreement and the consummation
of the Conversion by the Company and the Association do not
constitute a breach of or default (or an event which, with
notice or lapse of time or both, would constitute a default)
under, give rise to any right of termination, cancellation or
acceleration contained in, or result in the creation or
imposition of any lien, charge or other encumbrance upon any
of the properties or assets of the Company or the Association
pursuant to any of the terms, provisions or conditions of, any
agreement, contract, indenture, bond, debenture, note,
instrument or obligation to which the Company or the
Association is a party or violate any governmental license or
permit or any enforceable published law, administrative
regulation or order or court order, writ, injunction or decree
(except as may be required under the Kansas "blue sky" laws as
to which no opinion need be expressed), which breach, default,
encumbrance or violation would have a material adverse effect
on the Company and the Association, taken as a whole; and
(xx) To the best knowledge of such counsel, there has
been no material breach of any provision of the Company's or
the Association's respective articles of incorporation,
charter or bylaws or breach or default (or the occurrence of
any event which, with notice or lapse of time or both, would
constitute a default) under any agreement, contract,
indenture, debenture, bond, note, instrument or obligation to
which the Company or the Association is a party or by which
any of them or any of their respective assets or properties
may be bound, or any governmental license or permit, or a
violation of any enforceable published law, administrative
regulation or order, or court order, writ, injunction or
decree which breach, default, encumbrance or violation would
have a material adverse effect on the Company and the
Association, taken as a whole.
Trident Securities, Inc.
February __, 2000
Page 21
In rendering such opinion, such counsel may rely as to matters of fact
on certificates of officers and directors of the Company and the Association and
certificates of public officials delivered pursuant to this Agreement. Such
counsel may assume that any agreement is the valid and binding obligation of any
parties to such agreement other than the Company and the Association. Such
opinion may be governed by, and interpreted in accordance with, the Legal
Opinion Accord ("Accord") of the ABA Section of Business Law (1991), and, as a
consequence, such opinion may be rendered subject to the qualifications,
exceptions, definitions, limitations on coverage and other limitations, all as
more particularly described in the Accord. Further, references in such opinion
to such counsel's "knowledge" may be limited to "actual knowledge" as defined in
the Accord (or knowledge based on certificates). In addition, the "General
Qualifications" set forth in the Accord and other customary assumptions and
limitations may apply to such opinion. Such opinion may be limited to present
statutes, regulations and judicial interpretations and to facts as they
presently exist; in rendering such opinion, such counsel need assume no
obligation to revise or supplement them should the present laws be changed by
legislative or regulatory action, judicial decision or otherwise; and such
counsels need express no view, opinion or belief with respect to whether any
proposed or pending legislation, if enacted, or any regulations or any policy
statements issued by any regulatory agency, whether or not promulgated pursuant
to any such legislation, would affect the validity of the execution and delivery
by the Company and the Association of this Agreement or the issuance of the
Shares.
(b) At the Closing Date, Trident shall receive the letter of
Xxxx Xxxxxx Xxxxxx Xxxxxxxx & Xxxxxx, P.C., special counsel for the
Company and the Association, dated the Closing Date, addressed to
Trident, in form and substance satisfactory to Trident and to the
effect that: based on such counsel's participation in conferences with
representatives of the Company, the Association, the independent
appraiser, the independent certified public accountants, Trident and
its counsel, review of documents and understanding of applicable law
(including the requirements of Form SB-2 and the character of the
Registration Statement contemplated thereby) and the experience such
counsel has gained in its practice under the Act, nothing has come to
such counsel's attention that would lead it to believe that the
Registration Statement, as amended (except as to information in respect
of Trident contained therein and except as to the appraisal, financial
statements, notes to financial statements, financial tables and other
financial and statistical data contained therein or omitted therefrom,
as to which such counsel need express no comment), at the time it
became effective contained any untrue statement of a material fact or
omitted to state a material fact required to be stated therein or
necessary to make the statements made therein not misleading, or that
the Prospectus, as amended or supplemented (except as to information in
respect of Trident contained therein and except as to the appraisal,
financial statements, notes to financial statements, financial tables
and other financial and statistical data contained therein or omitted
therefrom as to which such counsel need express no comment), at the
time the Prospectus was filed with the Commission under Rule 424(b),
and at the Closing Date, contained any untrue statement of a material
fact or omitted to state a material
Trident Securities, Inc.
February __, 2000
Page 22
fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading (in making
this statement such counsel may state that it has not undertaken to
verify independently the information in the Registration Statement or
Prospectus and, therefore, does not assume any responsibility for the
accuracy or completeness thereof).
(c) Counsel for Trident shall have been furnished such
documents as they reasonably may require for the purpose of enabling
them to review or pass upon the matters required by Trident, and for
the purpose of evidencing the accuracy, completeness or satisfaction of
any of the representations, warranties or conditions contained in this
Agreement, including but not limited to, resolutions of the Board of
Directors of the Company and the Association regarding the
authorization, execution and delivery of this Agreement and the
transactions contemplated by the Plan and this Agreement.
(d) Prior to and at the Closing Date, in the reasonable
opinion of Trident, (i) there shall have been no material change in the
condition (financial or otherwise), business or results of operations
of the Company and the Association, taken as a whole, since the latest
date as of which information is set forth in the Prospectus, except as
referred to therein; (ii) there shall have been no transaction entered
into by the Company or the Association after the latest date as of
which the financial condition of the Company or the Association is set
forth in the Prospectus other than transactions referred to or
contemplated therein, transactions in the ordinary course of business,
and transactions which are not material to the Company and the
Association, taken as a whole; (iii) neither the Company nor the
Association shall have received from the Office or the Commission any
direction (oral or written) to make any change in the method of
conducting their respective businesses which is material to the
business of the Company and the Association, taken as a whole, with
which they have not complied; (iv) no action, suit or proceeding, at
law or in equity or before or by any federal or state commission, board
or other administrative agency, shall be pending or threatened against
the Company or the Association or affecting any of their respective
assets, wherein an unfavorable decision, ruling or finding would have a
material adverse effect on the Company and the Association, taken as a
whole; and (v) the Shares shall have been qualified or registered for
offering and sale by the Company under the "blue sky" laws of such
jurisdictions as Trident and the Company shall have agreed upon.
(e) At the Closing Date, Trident shall receive a certificate
of the principal executive officer and the principal financial officer
of each of the Company and the Association, dated the Closing Date, to
the effect that: (i) they have examined the Prospectus and, at the time
the Registration Statement was declared effective by the Commission and
at the time the Prospectus was authorized by the Office for use, the
Prospectus did not contain an untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements
therein, in light of the circumstances under which they were
Trident Securities, Inc.
February __, 2000
Page 23
made, not misleading with respect to the Company or the Association;
(ii) since the date the Registration Statement was declared effective
by the Commission and since the date the Prospectus became authorized
by the Office for use, no event has occurred which should have been set
forth in an amendment or supplement to the Prospectus which has not
been so set forth, including specifically, but without limitation, any
material change in the business, condition (financial or otherwise) or
results of operations of the Company or the Association, and the
conditions set forth in clauses (ii) through (v) inclusive of
subsection (d) of this Section 7 have been satisfied; (iii) no order
has been issued by the Commission or the Office to suspend the Offering
or the effectiveness of the Prospectus, and no action for such purposes
has been instituted or, to the best knowledge of such officers,
threatened by the Commission or the Office; (iv) to the best knowledge
of such officers, no person has sought to obtain review of the final
actions of the Office and division approving the Plan; and (v) all of
the representations and warranties contained in Section 2 of this
Agreement are true and correct, with the same force and effect as
though expressly made on the Closing Date.
(f) At the Closing Date, Trident shall receive, among other
documents, (i) copies of the letters from the Office authorizing the
use of the Prospectus and the Proxy Statement and the approval of the
Conversion Application (ii) a copy of the order of the Commission
declaring the Registration Statement effective; (iii) a copy of the
letter from the Office evidencing the corporate existence of the
Association; (iv) a copy of the letter from the appropriate Kansas
authority evidencing the incorporation (and, if generally available
from such authority, good standing) of the Company; (v) a copy of the
Company's articles of incorporation certified by the appropriate Kansas
governmental authority; (vi) a copy of the letter from the Office
approving the Association's Stock Charter; (vii) copy of the
certificate from the FDIC certifying to the insured status by the
Association; and (viii) copy of the letter to FHLB of Topeka evidencing
the Association's membership therein.
(g) As soon as available after the Closing Date, Trident shall
receive a certified copy of the Association's Stock Charter as executed
by the Office.
(h) Concurrently with the execution of this Agreement, Trident
acknowledges receipt of a letter from Xxxxxx, Xxxxx & Xxxxxx, L.L.C.,
independent certified public accountants, addressed to Trident, the
Company and the Association, in substance and form satisfactory to
Trident, with respect to the financial statements of the Association
and other financial information contained in the Prospectus.
(i) At the Closing Date, Trident shall receive a letter in
form and substance satisfactory to Trident from Xxxxxx, Xxxxx & Xxxxxx,
L.L.C., independent certified public accountants, dated the Closing
Date and addressed to Trident, the Company and the Association,
confirming the statements made by them in the letter delivered by them
Trident Securities, Inc.
February __, 2000
Page 24
pursuant to the preceding subsection as of a specified date not more
than five (5) business days prior to the Closing Date.
All such opinions, certificates, letters and documents shall be in
compliance with the provisions hereof only if they are, in the reasonable
opinion of Trident and its counsel, satisfactory to Trident. Any certificates
signed by an officer or director of the Company or the Association prepared for
Trident's reliance and delivered to Trident or to counsel for Trident shall be
deemed a representation and warranty by the Company and the Association to
Trident as to the statements made therein. If any condition to Trident's
obligations hereunder to be fulfilled prior to or at the Closing Date is not so
fulfilled, Trident may terminate this Agreement or, if Trident so elects, may
waive any such conditions which have not been fulfilled, or may extend the time
of their fulfillment. If Trident terminates this Agreement as aforesaid, the
Company and the Association shall reimburse Trident for its expenses as provided
in Section 3(b) hereof.
8. Indemnification.
(a) The Company and the Association jointly and severally
agree to indemnify and hold harmless Trident, its officers, directors,
employees and agents and each person, if any, who controls Trident
within the meaning of Section 15 of the Act or Section 20(a) of the
Exchange Act, against any and all loss, liability, claim, damage and
expense whatsoever and shall further promptly reimburse such persons
for any legal or other expenses reasonably incurred by each or any of
them in investigating, preparing to defend or defending against any
such action, proceeding or claim (whether commenced or threatened)
arising out of or based upon (i) any misrepresentation by the Company
or the Association in this Agreement or any breach of warranty by the
Company or the Association with respect to this Agreement or arising
out of or based upon any untrue or alleged untrue statement of a
material fact or the omission or alleged omission of a material fact
required to be stated or necessary to make not misleading any
statements contained in (A) the Registration Statement or the
Prospectus or (B) any application (including the Form AC and the Form
H-(e)1-S) or other document or communication (in this Section 8
collectively called "Application") prepared or executed by or on behalf
of the Company or the Association or based upon information furnished
by or on behalf of the Company or the Association, whether or not filed
in any jurisdiction, to effect the Conversion or qualify the Shares
under the securities laws thereof or filed with the Office or
Commission, unless such statement or omission was made in reliance upon
and in conformity with information furnished to the Company or the
Association with respect to Trident by or on behalf of Trident
expressly for use in the Prospectus or any amendment or supplement
thereof or in any Application, as the case may be, or (ii) the
participation by Trident in the Conversion; provided, however, that
this indemnification agreement will not apply to any loss, liability,
claim, damage or expense found in a final judgment by a court of
competent jurisdiction to have resulted primarily from the bad faith,
willful misconduct or gross negligence of Trident or any other party
who may otherwise be entitled to
Trident Securities, Inc.
February __, 2000
Page 25
indemnification pursuant to this Section 8(a). This indemnity shall be
in addition to any liability the Company and the Association may
otherwise have to Trident.
(b) The Company shall indemnify and hold harmless Trident, its
officers, directors, employees and agents and each person, if any, who
controls Trident within the meaning of Section 15 of the Act or Section
20(a) of the Exchange Act for any liability whatsoever arising out of
(i) the Allocation Instructions or (ii) any records of account holders,
depositors, borrowers and other members of the Association delivered to
Trident by the Association or its agents for use during the Conversion;
provided, however, that this indemnification agreement will not apply
to any loss, liability, claim, damage or expense found in a final
judgment by a court of competent jurisdiction to have resulted
principally and directly from the bad faith, willful misconduct or
gross negligence of Trident or any other party who may otherwise be
entitled to indemnification pursuant to this Section 8(b). This
indemnity shall be in addition to any liability the Company and the
Association may otherwise have to Trident.
(c) Trident agrees to indemnify and hold harmless the Company
and the Association, their officers, directors and employees and each
person, if any, who controls the Company and the Association within the
meaning of Section 15 of the Act or Section 20(a) of the Exchange Act,
to the same extent as the foregoing indemnity from the Company and the
Association to Trident, but only with respect to (i) statements or
omissions, if any, made in the Prospectus or any amendment or
supplement thereof, in any Application or to a purchaser of the Shares
in reliance upon, and in conformity with, written information furnished
to the Company or the Association with respect to Trident by Trident
expressly for use in the Prospectus or in any Application; (ii) any
misrepresentation by Trident in Section 2(b) of this Agreement; or
(iii) any liability of the Company or the Association which is found in
a final judgment by a court of competent jurisdiction (not subject to
further appeal) to have resulted principally and directly from gross
negligence, bad faith or willful misconduct of Trident.
(d) Promptly after receipt by an indemnified party under this
Section 8 of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against the
indemnifying party under this Section 8, notify the indemnifying party
of the commencement thereof; but the omission so to notify the
indemnifying party will not relieve it from any liability which it may
have to any indemnified party otherwise than under this Section 8. In
case any such action is brought against any indemnified party, and it
notifies the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein and, to the
extent that it may wish, jointly with the other indemnifying party
similarly notified, to assume the defense thereof, with counsel
satisfactory to such indemnified party, and after notice from the
indemnifying party to such indemnified party of its election so to
assume the defense thereof, the indemnifying party
Trident Securities, Inc.
February __, 2000
Page 26
will not be liable to such indemnified party under this Section 8 for
any legal or other expenses subsequently incurred by such indemnified
party in connection with the defense thereof other than the reasonable
cost of investigation except as otherwise provided herein. In the event
the indemnifying party elects to assume the defense of any such action
and retain counsel acceptable to the indemnified party, the indemnified
party may retain additional counsel, but shall bear the fees and
expenses of such counsel unless (i) the indemnifying party shall have
specifically authorized the indemnified party to retain such counsel or
(ii) the parties to such suit include such indemnifying party and the
indemnified party, and such indemnified party shall have been advised
by counsel that one or more material legal defenses may be available to
the indemnified party which may not be available to the indemnifying
party, in which case the indemnifying party shall not be entitled to
assume the defense of such suit notwithstanding the indemnifying
party's obligation to bear the fees and expenses of such counsel. An
indemnifying party against whom indemnity may be sought shall not be
liable to indemnify an indemnified party under this Section 8 if any
settlement of any such action is effected without such indemnifying
party's consent. To the extent required by law, this Section 8 is
subject to and limited by the provisions of Section 23A.
9. Contribution. In order to provide for just and equitable
contribution in circumstances in which the indemnity agreement provided for in
Section 8 above is for any reason held to be unavailable to Trident, the Company
and/or the Association other than in accordance with its terms, the Company or
the Association and Trident shall contribute to the aggregate losses,
liabilities, claims, damages, and expenses of the nature contemplated by said
indemnity agreement incurred by the Company or the Association and Trident (i)
in such proportion as is appropriate to reflect the relative benefits received
by the Company and the Association, on the one hand, and Trident, on the other
hand, from the offering of the Shares or (ii) if the allocation provided by
clause (i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above, but also the relative fault of the Company or the Association, on the one
hand, and Trident, on the other hand, in connection with the statements or
omissions which resulted in such losses, claims, damages, liabilities or
judgments, as well as any other relevant equitable considerations. The relative
benefits received by the Company and the Association, on the one hand, and
Trident, on the other hand, shall be deemed to be in the same proportion as the
total net proceeds from the Conversion received by the Company and the
Association bear to the total fees and expenses received by Trident under this
Agreement. The relative fault of the Company or the Association, on the one
hand, and Trident, on the other hand, shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by the Company or the Association or by Trident and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
Trident Securities, Inc.
February __, 2000
Page 27
The Company and the Association and Trident agree that it would not be
just and equitable if contribution pursuant to this Section 9 were determined by
pro rata allocation or by any other method of allocation which does not take
account of the equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an indemnified party as a result of the
losses, claims, damages, liabilities or judgments referred to in the immediately
preceding paragraph shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses reasonably incurred by the indemnified
party in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 9, Trident shall not be required
to contribute any amount in excess of the amount by which fees owed Trident
pursuant to this Agreement exceeds the amount of any damages which Trident has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who is not guilty of such fraudulent
misrepresentation. To the extent required by law, this Section 9 is subject to
and limited by the provisions of Section 23A.
10. Survival of Agreements, Representations and Indemnities. The
respective indemnities of the Company and the Association and Trident and the
representations and warranties of the Company and the Association and of Trident
set forth in or made pursuant to this Agreement shall remain in full force and
effect, regardless of any termination or cancellation of this Agreement or any
investigation made by or on behalf of Trident or the Company or the Association
or any controlling person or indemnified party referred to in Section 8 hereof,
and shall survive any termination or consummation of this Agreement and/or the
issuance of the Shares, and any legal representative of Trident, the Company,
the Association and any such controlling persons shall be entitled to the
benefit of the respective agreements, indemnities, warranties and
representations.
11. Termination. Trident may terminate this Agreement by giving the
notice indicated below in this Section at any time after this Agreement becomes
effective as follows:
(a) If any domestic or international event or act or
occurrence has materially disrupted the United States securities
markets such as to make it, in Trident's reasonable opinion,
impracticable to proceed with the offering of the Shares; or if trading
on the New York Stock Exchange shall have suspended; or if the United
States shall have become involved in a war or major hostilities; or if
a general banking moratorium has been declared by a state or federal
authority which has material effect on the Association or the
Conversion; or if a moratorium in foreign exchange trading by major
international banks or persons has been declared; or if there shall
have been a material change in the capitalization, financial condition
or business of the Company, or if the Association shall have sustained
a material or substantial loss by fire, flood, accident, hurricane,
earthquake, theft, sabotage or other calamity or malicious act, whether
or not said loss shall have been insured; or if there shall have been a
material change in the condition, financial or otherwise, or prospects
of the Company or the Association.
Trident Securities, Inc.
February __, 2000
Page 28
(b) If Trident elects to terminate this Agreement as provided
in this Section, the Company and the Association shall be notified
promptly by Trident by telephone or telegram, confirmed by letter.
(c) If this Agreement is terminated by Trident for any of the
reasons set forth in subsection (a) above, and to fulfill their
obligations, if any, pursuant to Sections 3, 6, 8(a) and 9 of this
Agreement and upon demand, the Company and the Association shall pay
Trident the full amount so owing thereunder.
(d) The Association may terminate the Conversion in accordance
with the terms of the Plan. Such termination shall be without liability
to any party, except that the Company and the Association shall be
required to fulfill their obligations pursuant to Sections 3(b), 3(c),
6, 8(a) and 9 of this Agreement.
12. Notices. All communications hereunder, except as herein otherwise
specifically provided, shall be in writing and if sent to Trident shall be
mailed, delivered or faxed and confirmed to Trident Securities, Inc., 0000 Xxx
Xxxxx Xxxx, Xxxxx 000, Xxxxxxx, Xxxxx Xxxxxxxx 00000, Attention: Xx. Xxxx Xxxxxx
Xxxx (with a copy to Xxxxxxx, Xxxxxx & Xxxxxxxx LLP, 0000 Xxxxxxxxx Xxxxxx,
X.X., Xxxxxxxxxx, XX 00000, Attention: Xxxx X. Xxxxxxx, Esquire) and if sent to
the Company or the Association, shall be mailed, delivered or telegraphed and
confirmed to First Federal Savings and Loan Association of Olathe, 000 Xxxx
Xxxx, Xxxxxx, Xxxxxx 00000, Attention: Xxxx Xxxxxxx, President of the Company
and the Association (with a copy to Xxxx Xxxxxx Xxxxxx Xxxxxxxx & Xxxxxx, P.C.,
0000 Xxxxxxxxx Xxxxxx, X.X., Xxxxx 000, Xxxxxxxxxx, X.X. 00000, (Attention:
Xxxxxx Xxxxxxx, Esquire).
13. Parties. This Agreement shall inure solely to the benefit of, and
shall be binding upon, Trident, the Company, the Association and the controlling
and other persons referred to in Section 8 hereof, and their respective
successors, legal representatives and assigns, and no other person shall have or
be construed to have any legal or equitable right, remedy or claim under or in
respect of or by virtue of this Agreement or any provision herein contained. The
undersigned consent to the assignment of rights and obligations of Trident
Securities, Inc. hereunder to McDonald Investments Inc.
Trident Securities, Inc.
February __, 2000
Page 29
14. Construction. This Agreement shall be governed by and construed in
accordance with the substantive laws of North Carolina regardless of the laws
that might otherwise govern under applicable principles of conflicts of law
thereof.
15. Counterparts and Definitions. This Agreement may be executed in
separate counterparts, each of which when so executed and delivered shall be an
original, but all of which together shall constitute but one and the same
instrument. Any initially capitalized terms not defined herein shall have the
meanings ascribed thereto in the Prospectus.
* * *
[Signature page follows]
Trident Securities, Inc.
February __, 2000
Page 30
Please acknowledge your agreement to the foregoing as of the date above
written by signing below and returning to the Company one copy of this letter.
FIRST FEDERAL OF OLATHE FIRST FEDERAL SAVINGS AND LOAN
BANCORP, INC. ASSOCIATION OF OLATHE
By: By:
----------------------------------- ----------------------------
Xxxxx Xxxxxxx Xxxxx Xxxxxxx
President President
Agreed to and accepted:
TRIDENT SECURITIES, INC.
By:-----------------------------------
Xxxx Xxxxxx Xxxx
Senior Vice President
Trident Securities, Inc.
February __, 2000
Page 31
Exhibit A
Trident Securities, Inc. IS a registered selling agent in the jurisdictions
listed below:
Alabama Montana
Xxxxxx Xxxxxxxx
Arizona Nevada
Arkansas New Hampshire
California New Jersey
Colorado New Mexico
Connecticut New York
Delaware North Carolina
District of Columbia North Dakota (Trident Securities, Inc. only, no agents)
Florida Ohio
Georgia Oklahoma
Idaho Oregon
Illinois Pennsylvania
Indiana Rhode Island
Iowa South Carolina
Kansas Tennessee
Kentucky Texas
Louisiana Utah
Maine Vermont
Maryland Virginia
Massachusetts Washington
Michigan West Virginia
Minnesota Wisconsin
Mississippi Wyoming
Missouri
Trident Securities, Inc. is NOT a registered selling agent in the jurisdictions
listed below:
Hawaii
South Dakota
